text:
    Municipality Number Two, for the Opening of Roffignac Street.
    The act of 3d of April, 1832, for the opening of streets, etc., in New Orleans, is not unconstitutional in oases where, in proceeding under it, provision is made for payment for the property before the expropriation is effected.
    On the Mississippi river, the levee is, by law, considered as tbe bank; and the use of the batture between the line of that levee and the stream, is in the public. Tbe commissioners appointed under the act of April 3d, 1832, for the opening of streets, etc,, in New Orleans, have no right to assess the adjacent property for opening a street on such batture, tbe use of which was already in the public. But if the levee be advanced by tbe municipal authority, and tbe public use extinguished, the batture would become private property, which, if taken for public use, should be paid for, and tbe commissioners would have the right to make an assessment for that purpose.
    Jn making the assessment under the act of April 3d, 1832, for opening streets, etc., the only lots subject to assessment are those adjacent to, or fronting that part of the street so improved. The owners to whose land a new front is given or added to, are alone subject to contribution for paying for it.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      R. Hunt, for Municipality Number Two.

      A. K. Josephs, for Shepherd.

      Grivot, for McDonough.

      H. I-I. Strawhridge, for Hoffman et al.

      Alexander Walker, for Donovan, appellee.
   The judgment of the court was pronounced by

Etjstis, C. J.

On the 23d of August, 1847, the Second Municipality of New Orleans applied, by petition addressed to the Third District Court of New Orleans, for the widening of Roffignac street, between New Levee and Front streets, under tbe act of the Legislature, passed on the 3d of April, 1832, entitled an act to regulate the opening, laying and improving streets and public places in New Orleans, etc. After a long litigation, a final judgment was rendered on the 19th of January, 1850, by which an amended report of the commissioners appointed by the court was homologated, the oppositions filed to said report having been dismissed. From this judgment, the Charity Hospital, the heirs of John Grass, the Second Municipality, and R. D. Shepherd, have appealed.

The land required for the widening of the street, was a lot at the corner of Front street, which projected some forty-seven feet in its whole depth on the ordinary width of Rofifignac street, and which, by being brought into the street, extended its upper boundary in a direct line to Front street, thus giving a uniform width tp the street to be opened. It belonged to John Donovan, and was assessed in the report of the commissioners at six thousand dollars. This lot fronting on the river, the batture in front of it was estimated with it, at the additional sum of six thousand dollars. Both lots are included in the proposed expropriation, and the street extended in its full width to the river; the assessment being of twelve thousand dollars for the property taken, with all its rights and dependencies,

One of the grounds of the oppositions to the report and assessment of the commissioners, in which the municipality itself has united, is that which puts in issue the title of Donovan to the lot. It is contended, that (he lot is public property, and dedicated to public use, and, consequently, no legal assessment can be made on the parties to indemnify Donovan for its application to public purposes. This question, as to Donovan’s title, has been very fully presented by his counsel, and by the counsel for the appellants, in written arguments. A careful consideration of the evidence has put beyond doubt, in our minds, the correctness of the decision of the district judge upon it; that the property has not been dedicated to the public use; and that, so far as the appellants are concerned, it belongs to Donovan, and, if taken by the municipality, must be paid for, at its value.

Besides the written arguments of the counsel of Donovan and the Charity Hospital, we have also before us those of the heirs of Grass and of M. W. Hoffman, one of the appellees. They present various questions involving the legality of the mode and the amount of the assessment, and the constitutionality of the statute itself, under which the present proceedings have been instituted and conducted.

The delegation of the sovereign power of eminent domain, of appropriating private property to public use, to municipal corporations, is not unusual in the legislation of the several States. Its exercise has given ground for serious complaint, and the power in the hands of unscrupulous or heedless men may be made an engine of great injustice and oppression. The constitutionality of the laws providing for the expropriation of private property, for the purpose of establishing streets and other public places, and of. forcing the proprietors of estates in the neighborhood, who are presumed to be benefited by the change, to pay for the land-thus taken for public places, by subjecting their land to a contribution in the form of rateable assessment, has been more than once questioned. The subject has been recently very thoroughly examined by the Court of A ppeals, of New York, in the case of The People on the relation of Griffin and others v. The Mayor of Brooklyn. A very able opinion was delivered by Judge Ruggles, in favor of the constitutionality of laws of this class, in which the history of the jurisprudence relating to them is given. In the general views expressed in that opinion, we concur. In cases where tho payment is made before the proprietor is expropriated from his land, (as provided in the opinion just delivered in the case of Euphrosine street,) there is no constitutional objection to the carrying into effect the statute under which these proceedings have been instituted.

By the original act of the incorporation of New Orleans, the mayor and city council had ample powers for the opening and widening of streets. A very simple mode of adjusting the indemnity due to the proprietors of the land required was provided, and the amount determined to be due was to be paid for out of the general funds of the city. Act of 1805, § 16 and 17.

The provisions of that act were found equal to every exigency, until the year 1832, when the process of expropriation was to be quickened, and a statute was enacted, under which the burden of paying for property required for new streets was to be laid upon those who were supposed to derive the benefit from the improvement. Under this statute, the legality of the assessments made upon the lots of the appellants must be determined; the statute is the mandate by virtue of which the power of expropriation and taxation is to be exercised. We consider, that the powers conferred by the statute are not to be enlarged by intendment: they affect the property of individuals, by subjecting the land required for public use to be taken against the will of the owner, and the proprietors of lots fronting or adjacent, to the expense and charge of paying for it. The case, and the proceedings under it, must be within the statute. We find, by the allegations of the petition of the municipality, that nothing else is asked than the widening of Roffignac street, between New Levee and Front street, so that it be of uniform width. The petition foiiows the words of the ordinance of the municipal council of the 15th of July, 1847, by virtue of which the proceedings are instituted. We have seen, that the municipality itself contests the title of Donovan; and we consider, that the right of use of the lots included in the report of the commissioners, as well as the right of property and the legality of the assessments for distribution, are fully at issue by the pleadings before us.

In the estimate of Donovan’s property at $12,000, is included the batture lot in front, which, with its riparian rights, is estimated at six thousand dollars by the first report of the commissioners. It, therefore, becomes necessary to consider the right of the commissioners to impose this assessment for the purpose of appropriating this batture lot to the public use.

On the Mississippi river, the levee along its banks, when established by municipal authority, is by law considered as the bank of the river. The use of the banks of navigable rivers is public. The use of this batture lot between the line of the levee and the stream is in the public, the property iu the soil being in the adjacent proprietor. If, by the municipal authority, the levee should be advanced towards the river, and the batture brought within the dominion of private property by the extinguishment of the public use, and its subjection as to possession and use, to the will of the owner, and the space now under consideration should be required for a street, undoubtedly the municipality would have to cause the owner to be indemnified for the property. But, until this occurs, the use of the batture is in the public. There is nothing before us which shows, with anything approaching certainty, that the levee will be advanced within any reasonable time; the whole extent of the lot is only from sixty-eight to seventy-four feet from the levee to the water. It may never be increased to an extent which would justify, as a matter of good police, the removal of the levee, and may be diminished by any sudden abrasion caused by the currents of the river. If, in the judgment of those entrusted with the administration of the municipality, the public interest requires that the municipality should own this piece of batture, let the'municipality buy it, and pay for it. Henderson et al. v. The Mayor et al., 5 L. R. 423. At present, there has been no ordinance from the municipality, which indicates any such necessity or purpose. That under which the proceedings are had, contains nothing to that effect. The question then presents itself, whether the assessments made on the property of the several proprietors who are appellants, and the contribution which the municipality is required to make, are authorized by the statute, for the purpose of widening Roffignac street to the river. The question, we think, answers itself. The use of the space is already in the public, and there can be no assessment for opening a space which is already open, or extending a street over a batture, the use of the whole of which is public, and the right of passage over which is a consequence of the use. We therefore conclude, that the assessments made and the contribution required for the purpose of reimbursing the owner of the batture lot, are not authorized by the statute. The estimated value of the batture lot, to wit, six thousand dollars, must therefore be left entirely out of any sum which the appellants might be compelled to make up.

It is contended, by the counsel for the Charity Hospital, one of the parties appellant, that the only lots subject to assessment under the statute, are those adjacent to and fronting that part of the street so opened, straightened or improvedthat from the words of the act, as well as from its general tenor, the owner to whose land a new front is given or added to by the new street, are alone subject to the contribution for paying for it.

We think, the word adjacent applied to lots, is synonymous with the word contiguous. C. C. 683. In another and more general relation, it might have a more extended meaning; but in the sense in which it is used, to wit, to discriminate as to locality from other lots, we can only give this meaning to it in a statute like this, which undertakes to divest a right of property, and is consequently subjected to strict rules of interpretation.

The act does not provide, that all the property to be benefited by the improvement shall contribute to pay for it; it commits no such power of discriminating between the lots deriving a benefit and those which derive none. It does not give to the discretion of the commissioners, the whole range of the neighborhood, in selecting property to be assessed. It evidently limits the contribution to lots having a certain location, undoubtedly, for the purpose of preventing too great an exercise of a discretionary power on the part of the commissioners; and that location is, by the statute, confined to the lots and premises adjacent to and fronting that part of the street so opened, straightened or improved. Within that location, the judgment of the commissioners is to be exercised in fixing the contribution of each lot. The advantage and benefit upon which the commissioners are to act, ought not to be speculative and distant, depending on remote and uncertain contingencies, but should be substantial, certain, and to be realized within a reasonable and convenient time. 3 Wendell, 453, Matter of Fourth Avenue.

The statute requiring the contribution to be confined to the lots or premises adjacent to the improvement, and the terms made use of being plain, and presenting no question of verbal criticism, we can hold no property subject to assessment, which is at a greater distance from the space taken for the public use than the front line of a lot of sixty-five feet, about the size of lots in which the city was originally laid out. The adjacent lots within this distance and the lots opposite, to the same extent, will be the only lots subject to contribution, according to the only proper construction, which, we think, the statute will bear. This mode confines the assessment to the lots in the same square or islet; whether it is to be extended to another square, it is not necessary to determine; a case might occur in which it might be so extended. We are of opinion, that the only lots which would be bound to contribute for the lot between Front street and New Levee, are those fronting and adjacent to that part of the street to be opened, to wit, the lot of Grass, and sixty-five feet of land adjacent to Donovan’s lot, on Roffignae street, and the lots to 'the same extent of front on the opposite side of the street. The statute gives no warrant for burt.hening any other property in the neighborhood with this expense. We have fixed upon this distance of sixty-five feet, because that dimension is the largest front of what may be denominated a full lot in New Orleans, and is as just a standard as we can think of.

The litigation in relation to the opening of this street, according to our reports, dates back as far as 1838. 12 L. R. 305. The present proceedings were instituted in 1847. On the 24th of March, 1849, Donovan made an abandonment of his lot, with the batture, at the appraised value of twelve thousand dollars. This abandonment appears to have been made by a formal instrument filed with the proceedings. It was not accepted by the municipality, and the district judge determined that it was filed too late to take effect under the statute. It is clear, that the abandonment was not made within the time required by the fifth section of the statute; and we find no provision made for an abandonment of the property by the owner, unless it be considered authorized under that section, or the preceding section, which presupposes the consent of the municipality to be' given. We regret, that it is not in our power to afford relief to Donovan, by enforcing the abandonment of his property, and the payment to him of its estimated value. During this litigation, the enjoyment of his rights to his property had been suspended by the proceedings instituted by the municipality, which have resulted in nothing but injury to him, and without any fault of his. His case constitutes a strong claim upon the justice of the corporation, which, we hope, will not. be overlooked, or longer deferred.

The judgment of the district court is therefore reversed, except that part of said judgment which decrees the lot on Front street to belong to Donovan, and that said lot is not dedicated to public use, which is affirmed. The case is remanded for further proceedings, according to the rules settled in this opinion; the municipality paying costs in both courts. *

Slidell, J. My views upon a portion of the subject considered in this ease? are stated in the case of the Opening of Euphrosine Street, to which I refer.


source: Caselaw Access Project

author: Rost, J. Eusxis, C. J.

license: Public Domain

text:
    Liza, c. w. v. Dr. Puissant et al.
    The temporary residence of a slave, even with the consent of the master, in a foreign country, does not entitle the slave to freedom after his voluntary return with the master to a State where slavery exists.
    APPEAL from the First District Court of New Orleans, Larue, J.

      J. C. David, for plaintiff.

      Janin and Taylor, for defendants.
   The judg-

ment of the court was pronounced by

Rost, J.

The plaintiff was born the slave of the late Hardy De Boisblanc. In 1821, Boisblanc went to Bordeaux, where his family were then sojourning, for the purpose of bringing them back to Louisiana. He took with him to Europe, for their education, Mrs. Puissant and her sister, Mrs. Sauvé, who were under ten years of age, and the plaintiff, then twelve years old, went with them as a servant. Mr. Boisblanc remained two or three months in Bordeaux, and then sailed for Louisiana with his family and the plaintiff, who remained with him as a slave. She was given to the defendant, Mrs. Puissant, at the time of her marriage, about twenty years ago, and has continued in her service ever since. She has had seven children since her return from Europe. She alleges, that she became free by putting her foot upon French soil, and claims her freedom and that of her children, together with damages, since the defendat was apprised of her rights. There was judgment against her, and she appealed. This case is similar to that of Bernard Conant, Tutor, v. Guesnard and Wife, 5th Ann. 696. The only difference between the two being, that the plaintiff was taken to France before the passage of the act of 1846. Had there been no such statute, the opinion clearly intimates, that the decision would have been the same, on the ground, that the owner of the slave never intended that she should reside in France, but took her merely as a servant during the voyage, with the intention to send her back to Louisiana, which intention she earned out within a reasonable time. That case, as well as the present, came fairly within the exception in the case of Arsene v. Pignéguy, 2d Ann. 621.

The district judge, in his opinion, comments as follows upon the evidence in the record: “ Boisblanc did not go to France to establish a domicil. He did not go there to reside any length of time. He went for a specific purpose, to bring back his wife to Louisiana, and appears to have remained at Bordeaux for as short a time as the nature of the intercourse between that city and this, thirty years ago, would permit. The circumstances of the case would rather seem to bring it within the rule applicable to those who are passing through a foreign country on a lawful journey.” See the case of Arsens v. Pignéguy.

We concur fully in these views, and are satisfied, that even if Arsene1 s case was taken as the rule of our decision, we could not interfere with the judgment. Whether we would follow that precedent in all cases which occurred before the passage of the act of 1846, it is unnecessary to say. The principle, that the temporary residence of a slave in a country in which slavery is not tolerated, does not, of itself, work such a permanent change in his status as to make him free after his voluntary return to the domicil of his master, by the laws of which slavery exist, is supported by high authority. Case of slave Grace, 2d Haggard’s Admiralty R. 94 Commonwealth of Mass. v. Aves, 18 Pickering, 193. Story Conflict of Laws, No. 96. Strader et al. v. Graham, 10 Howard, 82.

The judgment is affirmed, with costs.

Eusxis, C. J.

The petition hases the right of freedom asserted, on the fact of the petitioner having been in France in the year 1821; it chai'ges, that by putting her foot on the soil of France, she immediately became free. It is proved, in this case, that it was never the intention of the family that Liza should be left in France, but she was to return immediately to Louisiana; which she did with Air. Boisblanc and his family. I concur with the district judge, in considering the slave as accompanying persons in their service on a lawful journey. There was an evident propriety, little short of necessity, in the children being accompanied by a female servant on board the ship, in the absence of a female relative, and it is not alleged or proved, that there was any delay in returning the slave to her home, according to the original purpose, when her services were no longer needed. So that the question of law involved in the case may be considered as well stated in the petition. There is a case in which an opinion was expressed, that the presence of a female slave in France, with the consent of the master, creates, per se, the condition of freedom, so that her return to Louisiana does not subject her to servitude ; I feel it to be my duty to state my reasons for dissenting from the opinion expressed in that case. It is the case of Marie Louise v. Marot, 9th L. R. 475, decided in May, 1836. The court there say, the plaintiff being free for one moment in France, it was not in the power of her former owner to reduce her again to slavery. That this is true, in France, there can be no question ; the law of France recognizes no such relation as that of master and slave. But I do not concur in the opinion, that on the voluntary return of the slave to the country of his domicil, from one in which slavery does not exist, the dominion of the master can in no case be exercised. There is another case, Smith v. Smith, 13 L. R. 445, in which the principle decided in the previous case is affirmed, although the facts of the case presented other grounds on which the decision could be made. I concurred in the judgment in that case, and I think the case was well decided for the plaintiff; bnt I am satisfied, that it was an error t'o place it on the reasons given in the opinion of the court by Judge Mat1tin. Mrs. Smith, the mistress, had left Louisiana for France. She took wit?l her the female slave, who was the plaintiff. She had remained in France, and there was no intention on her part to return to Louisiana. Her residence was there, and she endeavored to retain the plaintiff with her in France. The absence of the defendant, from its origin, had a character of permanency, and the plaintiff’s removal from Louisiana, so far as the intentions of the defendant could be reached in the evidence, was with the same purpose. The case of Thomas, f. m. c. v. Generes, 16 L. R. 483, is, as to the facts, like that just cited.

In all the cases of this kind which have been decided in this court, we have avoided anything which could be considered as an affirmance of the principle laid down in th’e case of Marot. The first case that came before us, was that of Josephine v. Poultney, 1st Ann. 328. In that case, the defendant had removed from Louisiana to Philadelphia with her slave, who was the plaintiff, and had resided for years there, and by virtue of this residence, we held her released from the dominion of her mistress, which did not revert on the removal of both to this State. The decision was based on the effect of the acquired residence in Philadelphia, on the condition of the plaintiff.

In the case-of Eugenie v. Préval, 2d Ann. 180, the plaintiff had been taken to France by his daughter, who was married to a French officer, in whose service she remained for years. We said, “ this case is nearly the same with that decided in June last, of Josephine v. Poultney, in which we held, that the" status of freedom was acquired, not by having been in a country in which slavery did not exist, but by a residence and domicil there.” In the case of Arsene v. Pignéguy, 2d Ann. 621, the plaintiff had been taken to France, and remained there in the service of the family of her master, for the space of two years. We considered the condition of the plaintiff as changed by her remaining in France for such a length of time. In that case, we distinctly stated what we considered as exceptions to the rule in MaroVs case, which we thought was too general in its terms. We stated, as exceptions, the cases of persons thrown on foreign coasts by shipwreck, taking refuge from pirates, driven by some overwhelming necessity, or perhaps those passing through a foreign territory, on a lawful journey.

By'the'statute of 1846, no slave can be entitled to his freedom in this Stater by having Been with or without the consent of his master, in a country where slavery does not exist. No questions of this kind can occur in relation to any rights asserted by slaves'subsequent to this statute, which are covered by its operation. The jurisprudence, independent of that statute, has been far from being settled on principles on which questions of this gravity ought to have rested. The opinion in Marot's case, seems to have been adopted from precedents, and there does not appear to have been any consideration’ of those' exceptions which must obviously exist to the rule. For instance, the case of the fugitive slave. So far as the rights of his master are concerned, they are equally protected, wherever the fugitive may be. Our courts must hold, that the possession of the master continues, notwithstanding the flight of the slave. Oates v. Caffin, 3d Ann. 341. Pothier, Treaties on Possession, sec. 89.

This is not the only rule relating to the conflict of laws which presents, in its practical results, more exceptions than examples under it; and which, consequently, affords a most unsafe guide in, the administration of justice. Has it ever been supposed, that a father in Spain, where the age of majority is twenty-five, loses the paternal power over his son over the age of twenty-one, by the latter’s temporarily sojourning in England or crossing the frontier of France, where the age of majority is twenty-one ? And that on his return to his country, being still of the age of minority, the minor is emancipated, and can no longer be held subject to the paternal authority? And that this change in his condition is wrought by his accidental presence in a land, where, by its laws, he would be held to be sui juris ? A distinction is made between slavery and other domestic relations, because it is said that slavery is contrary to the law of nature and the creature of municipal law. But what law of nature fixes the age of majority at twenty-one or twenty-five ? Rutherford’s Institutes,lib. 1, ,c. 11, sec. 8. Jus autem potestatis, quod in liberos habemus, proprium est civium Romanorum: nulli enim alii surit homines, qui talem in liberos habeant potestatem, qualem nos habemus. Inst., lib. 1, tit. 9, s. 2. The sacred relation of marriage itself is an institutionof municipal law, recognized as is that of slavery, by the law of nations. Justas autem nuptias inter se contrahunt eives Romani qui secundum prrecepta legum coeunt. Inst. lib. 1, tit. 10. So far as foreign laws have effect upon the status of persons, their domestic relations must, necessarily, all be upon the same footing.

The authorities cited in the opinion of Judge Rost, are in direct opposition to the decision in MaroVs case. The case of Strader v. Graham, 10 Howard, 82 , was an appeal taken by writ of error from the Court of Appeals of Kentucky. It was not decided on its merits in the Supreme Court of the United States, but went off on a question of jurisdiction. In that case, certain slaves, who were musicians, had gone, from Kentucky across the river to Ohio; on more than one occasion, with the permission of their master, to perform at public entertainments. The courts of Kentucky held, that they did not acquire their freedom by this temporary presence in a State where slavery was prohibited. This is the only practical doctrine which can be maintained in a State whose frontier, for hundreds of miles, is bounded by free States, where the communication is open, and the intercourse between the inhabitants constant and uninterrupted. It rests with each State to establish and regulate the domestic relations of its inhabitants. A State may prohibit slavery within ils limits, may abolish the paternal power; but this imposes no obligation on other States to hold the condition of persons domiciled there, as extinguished by reason of a presence in the State in which the relation is not recognized. This court has held the status of a slave to be changed by a residence in a country in which slavery did not exist, when the residence, with the consent of the master, had a character of permanency, but not that the status was affected by a transit for a temporary purpose. Cases of this kind, resting mainly on the intention of parties, are attended with great difficulties in their solution; but in this respect, they resemble all cases of contested or questionable domicil.

For these reasons, I think the judgment of the district court ought tó b.e affirmed.


author:
Preston, J.
      SudeIiI, J.

text:
    The State v. Abraham Parker.
    A party introducing a witness to impeach the testimony of another witness, is not restricted to the simple inquiry as “ to the general character of the witness for truth and veracity he may inquire into the general character of the witness, whose testimony is sought to be impeached, but cannot inquire into any particular acts of an immoral character which may have been committed by the impeached witness.
    A person accused of crime, may prove in his defence his general good character, and also his character as to such moral qualities as have pertinence to the charge.
    APPEAL from the First District; Court of New Orleans, Larue, J.

      Isaac Johnson, Attorney General, for the State.

      Randall Hunt, J. R. Orymes, apd J. R. Robertson, for the appellant.
   The judges delivering their opinions separately. The judgment of the court was pronounced by

Preston, J.

The accused was prosecuted for the murder of Eliza Phillips, was convicted of manslaughter, and has appealed from the judgment against him. He has brought the case before us, on a bill of exceptions to evidence offered and received against him, and two bills of exceptions to the rejection of evidence .offered in his favor.

The district attorney offered, in evidence on the trial, the coroner’s inquest; and it was admitted, the court instructing the jury, at the time, that this evidence must be restricted by them, to the proof of the death of the deceased, and that they could not regard it any further. The counsel of the prisoner excepted.

By law, the coroner, with a jury of freeholders, is directed to hold an inquest on the body of a person found dead, and the cause of whose death shall be unknown, to ascertain, by the examination of the body and of the wounds, in what manner the person has come to his death ; and in order to ascertain the cause of the death, with all the certainty possible, the coroner and jury are authorized to require, at the public expense, the services of physicians, to give theiropinion on the subject; and it is expressly declared, that the inquest, signed by the coroner and members of the jury, shall be sent to the clerk’s office, to be a record of the facta to be used before the grand jury, in case a prosecution takes place; and, if the jury finds a person guilty of the death of the person found dead, the coroner is required to cause him to be arrested. The inquest is, therefore, a very solemn public proceeding, prescribed by law, principally for two objects: 1st, To ascertain the physical facts as to the death of the deceased. 2nd. To institute a public prosecutiou against the supposed perpetrator of the deed.

The direction of the statute, that the coroner’s inquest is to be used as evidence before the grand jury, is not an exclusion of its use before the petty jury, because most of the evidence proper for the grand jury, is legal evidence, also, before the petty jury.

That part of the inquest which ascertains the death of a person and its precise causes, establishes mere physical facts, which are to be ascertained, according to law, for public purposes. A record of those facts made at the time, and upon inspection by a public officer and intelligent men, aided by professional skill, is better and more precise evidence of those facts, than proof from the fleeting recollections of men, or the hasty and heedless observation of passers by. Every one feels, that it is more satisfactory proof than any other that could be offered. The facts, in themselves, are evidence of neither guilt nor innocence, and have no direct tendency to implicate the accused, nor any one else. There can be no evil resulting from the admission of the record of those facts in evidence, as it can be controverted by the accused, if material to his defence, and the more conclusively, as from the time of holding the inquest, he has cognizance of them. There can be, therefore, no reasonable objection to this mode of ascertaining the physical facts, which caused the death, before the petty jury. Evidence is that which tends to convince the mind of a fact, and whatever' is true and has that effect, should be received, unless rejected for some reasonable cause.

From authority, also, we should conclude, that inquests, as to matters of public and general concern, were evidence of those matters in England. 1st Greenleaf, sections 515, 556. 4 Black. Com. The ancient rules of the common law were much relaxed by statutes on this subject. McNally on Evidence, 285.

Our Constitution, however, provides that a person accused of a crime, shall have the right of meeting the witnesses face to face. Therefore, that part of the coroner’s inquest, which tends to trace the death to a person accused of the deed, is not evidence on the trial, because it tends to show guilt in him, to the exelusion of others; and, therefore, he has the constitutional right of meeting the witnesses face to face. The deposition of the witnesses before the inquest, if taken in writing, should not, therefore, be given in evidence on the trial, much less should the opinion of the coroner and jury of inquest, given as the foundation of an order of arrest, that the death was caused by the accused.

The inquest, in the present case, contained the opinion that the accused fired the pistol which caused the death of the deceased, and that part of it should not have been read, or given to the jury. But as the court cautioned the jury, that no part of the inquest should have any influence upon their minds, except that which established the death, we do not feel ourselves authorized to reverse the judgment for such an irregularity, considering the caution of the court, with which it was accompanied. Men would be unfit to sit upon the trial of their fellow men for crimes, if they were incapable of discriminating, as directed by the court, between that part of the document which was evidence, and that which was not; and, if such were the case, the trial by jury would be unworthy to be regarded as the bulwark of liberty. In point of fact, jurymen are capable of making the discrimination, and there is no reason for deluding ourselves with the contrary supposition.

In the progress of the trial, the counsel of the accused took the following bill of exceptions : “ Be it known, that, on the trial of this cause, the defendant offered^ to prove, by H. JRowl, Mary Owens, and other witnesses present in court, and one of whom was sworn and questioned thereto : .1st. That Eugene Suchet, the principal witness for the prosecution, is a man of infamous character, notoriously guilty of acting falsely and fraudulently, of extorting money, by force and cheating, from the unwary and feeble, and of living among low and abandoned women. 2d. That he is idle, dissolute and profligate; had no means of support, and no mode of obtaining money than those just set forth. 3d. That although these witnesses cannot say that he has formed any character as to a lack of truth, and is false in oaths and words, yet, from his vices and general bad character, they swear that he is unworthy of credit, and they cannot believe him on oath. To this testimony, and to the interrogatories propounded therelo, the district attorney objected; and the judge sustained the objection, and rejected the evidence. To this ruling of the court the defendent excepted, and now tenders this his bill of exception.

'By the Court. — The judge, in this decision, believed himself to be bound by the common law of England. He admitted all proof as to the general reputation of the witness, as to truth and veracity, but did not feel justified, under the law, in going further. J. C. Larue, Judge.”

"We must take it for granted, for the purpose of this decision, that the witnesses would have given to the witness impeached, the character stated in the bill of exceptions; and, if so, it would certainly have proved him a man of bad general reputation. The question would seem, then, to be, whether the evidence offered was as to general character, orto particular charges.

The accused did not offer to establish any particular offence or criminal act against the witness, but that he was an infamous character; that he was addicted to crimes, which indicated a total disregard of truth, without specifying a particular crime committed by him; that he lived among low and abandoned women ; that he was idle, dissolute and profligate; that he had no means of support, but what he obtained by the crimes and vices mentioned ; and that, from his vices and general bad character, he was unworthy of credit, and the witnesses would not believe him on oath. These appear, to me, general descriptions of a bad character, without entering into particular facts or charges; and that the court limited the testimony, as to the general character of the impeached witness, to his character for truth and veracity alone; and that the court felt bound to such a limitation, by the rules of evidence at common law.

There is no doubt, that the tendency of many English decisions, and the opinions of some elementary writers, is to establish that limitation. Thus, Roscoe and Phillips give the very questions to be asked in impeaching a witness, limiting them to the means of knowing the general character of the witness impeached, and to the inquiry, if the witness, from that general character, would believe him on oath ; and some judges have limited the questions to a knowledge of the general character of the witness, for truth and veracity. We are inclined to the opinion, however, that the weight of authority is in favor of testimony as to the general bad character, without limiting the questions as to character for truth and veracity, or establishing any formal interrogatories. Thus, Mr. Archbold, probably the most accurate elementary writer on criminal law, informs us, that the credibility of a witness is compounded, among other things, of his integrity and of his veracity, devoting a paragraph to each quality. If, therefore, his integrity tends to establish his credit, his want of integrity should go to his diesrcdit; and, in fact, this author says, the commission of.all offences which import falsity or fraud, whether followed up by conviction or not, affects the credit of the witness ; and he expressly says, witnesses may be examined as to the general character of the witness impeached, and does not confine their examination to the general character for truth and veracity. P. 143.

Conceding, however, such strict limitations, well established at common law, we do not feel absolutely bound by them. The act of 1805, to which, no doubt, the district judge referred, as binding him by that common law, is as follows : “ The rules of evidence, and all other proceedings whatsoever, in the prosecutions of crimes, offences and misdemeanors, changing what ought to be changed, shall be according to the common law.”

The ancient rules of evidence are therefore subject to change, where it is indispensable to truth and justice. We doubt if the rules of evidence in England, are precisely the same now which they were in 1805. The whole tendency of modern decisions is to relax the strict rules of evidence, with a view to lay everything before courts and juries, which ought to have an influence upon the cases before them, and to leave the objections, as much as possible, consistently with an orderly and speedy administration of justice, to the credit of the testimony and witnesses.

Now, all will agree, that a man, proved by reputable testimony to possess the character described in the bill of exceptions under consideration, would not be entitled to equal credit with a pure and virtuous witness; yet such a man, unless the proof is allowed, would stand as fair before the jury, as one of the most spotless character. And this would often occur in fact, as well as in theory. For those conversant in criminal trials, know by experience, that a wretch selected as a Witness, either to criminate or acquit by perjury, is always selected on account of his fair face, smooth tongue, and affected sincerity, for the express purpose of more effectually passing off falsehood. The great art of such a witness, is to lie like truth; and he is always selected from the class of iiien possessing the character described in the bill of exceptions. We were therefore, in a civil case in the Western District, not reported, induced to consider favorably the views of the Supreme Court of the State of Kentucky, in the case of Hume v. Scott, 3d Marshall’s R. 261, 262; and I will transcribe and adopt them as my views in the present case.

“ Every person conversant with human nature, must be sensible of the kindred nature of the vices to which it is addicted. So true is this, that to ascertain the existence of one vice of a particular character, is frequently to prove the existence of more at the same time in the same individual. Add to this, that persons of infamous character may, and do frequently exist, who have formed no character as to their lack of truth, and society may have never had the opportunity of ascertaining that they are false in their words or oaths. At the same time, they may be notoriously guilty of acting falsehood in frauds, forgeries and other crimes, as would leave no’ doubt of their being capable of speaking and swearing it, especially as they may frequently depose falsehood with greater security against detection, than in the practice of those vices. In such cases, and with such characters-, ought the jury to be precluded from drawing inferences unfavorable to their truth as witnesses, by excluding their general turpitude ? By the character of every individual, that is, by the estimation iii which he is held in the society or neighborhood where he is conversant, his word and his oath is estimated. If that is free from imputation, his testimony weighs well; if it is sullied, in the same proportion his word will be doubted. We conceive it perfectly safe, and most conducive to the purposes of justice, to trust the jury with a full knowledge of the standing of a witness Into whose character an inquiry is made. It will not thence follow, that fi-Qm minor vices, they will draw the conclusion in every instance, that his oath must be discredited, but only be put upon their guard, to scrutinize his statements more strictly, while in cases of vile reputation in other respects, they would be warranted in disbelieving him, though he had never been'called so often to the book, as to fix upon him the reputation of a liar when on oath.”

But, in applying the principles of this decision to the case before us, I do not consider that particular acts of malconduct may be proved, or wish to be understood as holding, that the district' courts must admit crimination and recrimination, further than the real purposes of justice require, and is consistent with the good order of the court and the speedy administration of justice; much must necessarily be left to the discretion of the courts of original jurisdiction, in these respects.

For these reasons, I am of opinión that the court should have admitted evidence that the witness was a man of infamous character; that he had notoriously the character of acting falsely and fraudulently, of extorting money by force and cheating from the unwary ’and feeble, and of living among low and abandoned women ; that he was idle, dissolute and profligate, and supported himself by obtaining money by the means set forth; and that from his vices and general bad character, he was unworthy of credit, and not to be believed on oath.

The accused has brought the case before us on another bill of exceptions. He introduced several witnesses to prove his character and conduct, and after showing that he was a man of good character for peace and quiet, offered to show, that he was of a mild disposition, and one of the last men who would willingly shed a woman’s blood ; that he was a kind and affectionate husband and father, honest and industrious, of strict integrity and pure morals. The district attorney objected to any evidence being received as to the character of the accused, except to show that he bore a good character for peace and quietness. The court "sustained the objection, and restricted the accused to these general questions : Do you know the character of the accused for peace and quietness ? Is it good or bad? and restricted the witnesses to categorical answers thereto.

The decision is in conflict with that in the case of The King v. Brecknoch, in which the prisoner accused of murder, proved his good character, and that his witness believed he was the last man in the world who would have a thirst of blood, and was allowed, in opposition to the objection and argument of the attorney general of England, to prove particular instances to support his belief. So, in the case of a man tried for a riot, in 1780; he proved his good character, and the witness proceeding to give as his reason for entertaining a good opinion of him, that he knew him to be a dutiful son, and that be supported a helpless parent by his industry ; the evidence was objected to, but ruled to be proper evidence by the Chief Justice, and Gould, Justice, on the ground, that when a witness is called to support a man’s character, he may- not only give the prisoner a good character, but he may give his reasons for entertaining a good opinion of him. And in the capital case of The King v. Thelwell, Lord Kenyon promulgated the same principle in saying, that affectionate and warm evidences of character, when collected together, should make a strong impression in favor of a prisoner; and when those who give such character in evidence are entitled to credit, their testimony should have great weight with the jury. McNally on Evidence, 322, 323.

It is true, that Wharton and Archbold laydown the rule, that the prisoner can give in evidence only his general character; and Roscoe confines the inquiry as to his general character, having some analogy and reference to the charge against him. Page 72. And perhaps this is the key to the whole controversy. The nature of his general character or good acts which the accused offers to prove, should have a bearing upon the charge against him. Thus, in the prosecution of Horn Toolce for a libel, he was allowed to give in evidence, a book published by him twelve years before, with a view to show, that the object of his publications for which he was prosecuted, was only parliamentary reform.

At all events, I do not find the decisions in favor of admitting particular facts in evidence, as reasons of the Witness for testifying to the good character of the prisoner overruled, and it appears to me so reasonable and humane, that I cannot think it inconsistent with the rules of evidence. The effort to avoid collateral issues seems, sometimes, to have excluded from the jury box, what every juryman would wish to learn, and to have trenched closely upon the principles of humanity. It is but the just reward of many good actions, that they should be of some avail to a man in his utmost need, especially when, by invoking their aid, he throws himself open to all the opprobium that can be cast upon him by the character he has acquired by his evil deeds.

I think we are justified by authority and reason too, in coming to the conclusion, that the evidence offered by the accused should have been received

The judgment of the district court is reversed, and the cause remanded fof a new trial, according to law.

SudeIiI, J.

1st. Upon the first bill of exceptions, I think the ruling of the district judge was too narrow. He confined the party impeaching the witness who had testified against him, to proof of the general reputation of the witness as to truth and veracity. In my opinion, the prisoner should have been allowed to offer general evidence, as to the general character of the witness impeached. The State would then be allowed to inquire into the means of knowledge of the witness so testifying. I think it proper, however, to add, that in my opinion, the district judge was right in excluding inquiry, on the part of the prisoner, as to any particular immoral conduct on the part of the impeached witness. See the People v. Mather, 4 Wendell, 258. Bakeman v. Rose, 14 Wendell, 110. Peake, 197. 3 Hill, 178. One very good reason for thus limiting the inquiry to general character, arid not permitting it to run into particular acts and eollal teral facts is, that an opposite course would embarrass and delay trials to a degree that might render the administration of justice impracticable. In adopting rules in matters of this sort, they must be considered, not in the mere-abstract, but with reference to their practical working in the administration of j ustice.

2d. Upon tire second bill of exceptions, I am of opinion, that the ruling of the district judge was too narrow. It confined the prisoner to proof of his character for peace and quietness. I think he had a right to offer evidence as to his general character, and that in doing so, he should be permitted to show his character as to such particular moral qualities as have pertinence to the charges for which he is under trial. See 2 Massachusetts, 317. .Roscoe, 72, &c.

Etjstis, C. J. I concur in this opinion.

Rost, J.. I concur in this opinion.


author: Etjstis, C. J.

text:
    George D. Shadburne et al. v. William Amonett, Executor.
    Donations between married persons, made during the marriage, are revocable at the will of the donor.
    It is better for parties to vindicate their rights of property under their own names, and not under the cover of simulated titles.
    from the District Court of Madison, J. N. T. Richardson, J.

      Stacy and Sparrow, and A. Snyder, for plaintiffs.

      Stockton and Steele, and J. J. Amonett, for defendants.
   The judgment of the court was pronounced by

Etjstis, C. J.

In June, 1845, an execution was taken out. on a judgment

rendered in the suit of Silas Lillard v. David Stanbrough, and the sheriff seized certain lands in the parish of Madison. The present suit is a third opposition made to the sheriff’s sale, by George D. Shadburne and Sybil Stanbrough, his wife, claiming, as the property of the wife, these lands thus seized, as the property of Stanbrough, the judgment debtor. There was a judgment in the district court, by which the opposition was sustained, and Sybil Stan-bro-ugh, the wife of Shadburne, was adjudged to be the owner of the lands seized, and quieted in her title and possession thereof. This judgment was rendered on the verdict of a jury. The representative of the original plaintiff in execution has appealed.

The petition alleges, that Sybil Stanbrough is the owner of the lands, by virtue of a donation made to her on the 14th of January, 1847, by Robert M. Scott, by authentic act passed before the recorder of the parish of Madison ;• that Robert M. Scott acquired title to the lands,- by purchase at sheriff’s-sale,made on the 1st of August, 1846, under an execution against Stanbrough, issued on a judgment rendered against him in favor of /. C. Garthwaite, in the parish' of Concordia, which judgment was recorded in the parish of Madison, in-1839 ;- that under said donation from Scott, the plaintiffs have been-in possession of the' lands since the date thereof, and that since the sheriff’s sale to Scott, Stanbrough has had no interest in or title to the lands.

The answer charges, that the sale to Scott, and the donation, were mere con-trivances to’ defeat the rights of the creditors of Stanbrough, who is insolvent, were simulated,- and are null and void; that the judgment under which the' sheriff’s sale was made to Scott really belonged to Stanbrough himself, and was1 kept alive and used for his sole benefit; that Stanbrough has always been in-possession of the lands; which remained unchanged by the transfers-on which the suit is based, etc.

A verdict on issues of this kind ought not to be disturbed, except for grave reasons, and on the strongest convictions on the' part of the court of its illegality, and a scrutiny of the evidence adduced on the trial becomes necessary.

It appears by the testimony of Scott, that he bought the lands at the sheriff’s sale for and on account of Shadburne ; that he paid no money for them, gave no security for the price; that he held the lands in his name at the request of Shadburne ; and that the object of Shadburne, in putting the lands in his name, was to avoid the effect of a judgment then existing against him as the surety of on6 Shannon. He made the donation to Mrs. Shadburne, at the instance of her husband. She is the neiee of Stanbrough, the judgment debtor. It results, from this testimony, that, in point of fact, the donation of the lands was from the husband during their marriage, and consequently recoverable at the will of the husband. C. C. 1742.

It is not attempted to infringe, in the slightest degree, on the credit of this witness. It is conceded, that his testimony reveals the truth. There was really no donation, in its proper sense, from Scott, nor any motive or reason for one to Mrs. Shadburne. The purchase at sheriff’s sale, by him, was a mere simulation ; he never considered himself thereby the owner of the land. Itwas in his name, for a particular purpose, which he discloses ; and it is almost a necessary conclusion, that the transfer to the wife, at the instance of the husband, was in furtherance of the original object, to avoid subjecting the lands to seizure under the judgment against Shadburne. Scott never took possession of the lands, nor is any act of ownership by him or Mr. Shadburne shown to have been exercised. It is impossible to consider this donation of the lands as a bond fide act translative of the property to Mrs. Shadburne.

The sheriff’s sale, and the act of donation, are the titlee declared upon in the plaintiff’s petition; none other are mentioned. The claims of Mrs. Shadburne alone, are stated in the petition, and the judgment is asked for her benefit, and is in accordance with the prayer of the petition. The husband is a party to the suit; but he must be considered as a party, for the purpose of assisting his wife, and not as a plaintiff, for he sets forth no title and asks nothing from the court.

It is contended, that Mrs. Shadburne can avail herself of the title of her husband, and that this title is supported by the verdict. We will examine this title, observing, that it is better for parties to vindicate their rights of property under their own names, and in their own persons, and not under the cover of simulated titles. We have, on more than one occasion, discountenanced attempts of this kind, as they embarrass the lawful pursuit of creditors and increase the difficulties of litigation; and as nothing but truth ought to have place in the administration of justice, nothing short of necessity, in the furtherance of justice, would authorize a tribunal to give effect to a simulated title.

We have stated, that neither Scott nor Mrs, Shadburne took possession of the lands. The same is true with regard to Shadburne; and we do not find the original possession of the lands by Stanbrough, as affected by an act of any adverse ownership, or in any respect changed. It is proved, that Stanbrough cultivated a part of the lands in 1848; and it is not proved that they were rated on the tax list in the name of any other than the original owner. Supposing the title of Shadburne to be only in issue, what is its validity, wanting, as it does, the element of possession? The allegations of the defendant are in effect, that Stanbrough himself bought the judgment under which Scott purchased the lands at sheriff’s sale, and it was held in the name of another for the purpose of being used for his, Stanbrough's, benefit in defeating the judgment of Lillard against him, the latter being posterior in date to the former. The main evidence in support of these allegations is composed of the testimony of witnesses taken under commissions, of which, as well as of the documentary .evidence, we have as ample means of judging as the jury had.

The relations between Shadburne and Stanbrough require some notice; not that, of themselves, they would be of any weight one way or the other, but their concurrence with the hypothesis of the defence, rather supports it than otherwise. Shadburne had been, for several years, the family physician of Stanbrough, and had married his neice. In June, 1845, an execution was issuqd on this Lillard judgment against Stanbrough, at whose instance proceedings under it were enjoined on the ground, that he, Stanbrough, had purchased the judgment at sheriff’s sale, made in February, 1844, and that thereby the judgment debt had become extinguished. This identical ground is stated in the plaintiff’s petition,as one of the means for defeating the seizure and sale of the lands in dispute, to which the present opposition is made. And the qnestion is asked, and has not been answered, as to what right or interest the plaintiffs had in attacking the regularity of the defendant’s proceedings in execution, which was a matter exclusively between the creditor and the judgment debtor. If the lands in dispute belonged to the plaintiff, Mrs. Shadburne, her opposition to the seizure of them must prevail; and she can-have no interest in setting aside the proceedings in execution, which can only reach the lands of the judgment debtor, and not hers.

It appears, that Stanbrough, in obtaining his injunction staying proceedings on the Lillard judgment, had not given an injunction bond with security, and on the 21st of November, 1845, an order of court was made requiring him to give security. On his failing to comply with this order, his injunction was dismissed, with ten per cent damages and costs, by judgment of the court rendered on the 28th of the same month, November, 1845. We find, on the 24th of this month, Shadburne addressed a letter to Garthwaite, in New Orleans, proposing to purchase his judgment against Stanbrough, and offering him four hundred dollars for it. On the 10th of January, 1846, Garthwaite wrote to Shadburne, from Newark, New Jersey, referring him to Mr. William Ailing, of New Orleans, who had full authority to close the matter, and to assign the judgment to the purchaser. Early in February of that year, Shadburne presented an open letter from Stanbrough to his commission merchant in New Orleans, requesting him to aid Shadburne in buying a judgment, and that he was referred to Mr. William Ailing for that purpose. On this request, he paid Shadburne four hundred dollars, which he charged to Stanbrough, and the latter repaid him. The transfer of the judgment bears date Newai'k, New Jersey, January 10, 1846, and is filled up in the name of Shadburne, but was received in blank by Mr. Ailing, and was by him delivered to the person receiving it, on his paying the sum of four hundred dollars. A feeble attempt was made to weaken the effect of these facts, by showing that Shadburne had not been paid for several years’ services as the family physician of Stanbrough, and thereby to establish that the four hundred dollars was on that account. The evidence on this point is far from being definite or satisfactory; and we consider, that it is clearly proved that the money of Stanbrough paid for this judgment, and that the purchase was made by Shadburne, for his benefit. This being the case, we find a proper motive for Shadburne's placing the judgment in the names of others, so that it might be used for the original purpose of aiding Stanbrough in defeating the execution on the Lillard judgment, without any interference from his, Shadburne's, creditors.

Having come to these conclusions, on a careful consideration of the evidence, we are bound to give the defendant the benefit of them, and to hold the lands, which are the subject of the present suit, liable to execution as the property of the judgment debtor, David Stanbrough.

The judgment of the district court is therefore reversed, and judgment is rendered against George Shadburne and Sybil Shadburne, his wife; on the opposition to the seizure and sale of the lands seized by the sheriff; with costs in both courts.


author: Rost, J. Slidell, J.

text:
    Eliza Jane Webb v. Eleazar Peet et al.
    Property purchased during the marriage by either husband or wife, is presumed to be liable for community debts, unless the contrary he shown. C. C. 2371.
    Where a creditor of the husband seizes property as liable for community debts, which the wife claims as having been acquired by her after a judgment of separation of property between herself and husband, it is incumbent upon her to show, affirmatively, the reality and good faith of the judgment of separation, if the creditor attacks it upon the ground of fraud.
    The fruits of paraphernal property belong to the community, so long as the husband retains the administration of it.
    APPEAL from the District Court of Madison, Selby, J.

      J. M. Moore and A. R. Hynes, for plaintiff.

      Alonzo Snyder, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

The defendants, who are judgment creditors of Charles H. Webb, caused certain lands to be taken in execution, as his property; his wife filed a petition, making opposition to the seizure, and alleging, that she was separated in property from her husband;' and that she had acquired the lands seized, with her own funds, and in her own name and right, since the separation.

The defendants answered by a general denial, and an averment that the judgment of separation was fraudulent and simulated ; and that the property seized, was liable for the debts of the husband. There was judgment for the plaintiff perpetuating the injunction, and the defendants appealed.

The property seized, having been purchased by the plaintiff during marriage, is liable for the debts of the community, unless she can bring herself within some exception to the general rule, prescribed by article 2371 of the Code. The exception, which she invokes, is, that she purchased after she had obtained a judgment of separation from her husband, and the community previously existing between them had been dissolved; that judgment is, therefore, a part of her title, and adversely to creditors, she js bound to show, affirmatively, its reality and good faith; she has utterly failed to do so.

In the suit of separation, she claims judgment against her husband for the value of a gold watch, and interest at ten per cent on that value for four years; and also, the hire, during four years, of paraphernal property, of which the husband had retained the administration, and interest at ten per cent thereon. The husband made no defence, and she obtained judgment for two hundred and 11 twelve dollars, the supposed value of the watch; the judgment further decreed, a separation of property.

The fruits of the paraphernal property clearly belongs to the community, so long as the husband retained the administration of it; and there is nothing in the record to show, that the plaintiff ever owned a watch, which her husband .took and converted to his use.

The action of separation was without any foundation, so far as property of the wife was involved; and as the petition did not allege, that she had a separate industry, the earnings of which she wished to secure for the maintenance and support of herself and her family, it had nothing to rest upon. The case, in that respect, is stronger against the pretensions of the wife, than those of Dennistoun v. Nutt, 2d Ann. 311; and Harden v. Nutt, 4th Ann. 66. Under the view of the law taken in those cases, and to which we adhere, the judgment of separation was a nullity, incapable of producing any legal effect; the wife acquired no title to the property of the husband, which she purchased under it; and not being separated in property, the purchases which she subsequently made, fell into the community, and are liable for its debts. The prescription pleaded, is inapplicable to the case.

It is ordered, that the judgment be reversed; it is further ordered, that there be judgment against the plaintiff, and the defendants be allowed to procede under their executions, to advertise and sell the land seized as in the record described. It is further ordered, that the plaintiff pay costs in both courts.

Slidell, J.

I am not prepared to say, that I concur in all the legal propositions enunciated in the opinion of Mr. Justice Rost. But I concur in the reversal of the judgment of the court below, upon the ground, that the evidence is unsatisfactory to my mind, and insufficient, upon a view of the whole case, to sustain the judgment of separation, or to show an acquisition with funds of the wife.


author: Rost, J.

text:
    E. B. Towne v. J. W. Couch, Sheriff, et. al.
    There is nothing illegal in an agreement in the sale of a suit by -which it is stipulated, that the suit shall he prosecuted in the name of the plaintiff, for the benefit of the assignees. Satisfaction of the judgment entered by the parties to the record, or by the sheriff, would protect the defendant.

      APPEAL from the District Court of Madison, J. N. T. Richardson, J.

      WZ, PerJcins, for plaintiff.

      J. J. Amonett, for defendants.
   The judgment of the court (Eustis, C. J. absent,) was pronounced by

Rost, J.

The plaintiff has enjoined an execution upon a twelve months’ bond given by him in the suit of Bruner, Morgan and Markham v. Lee, for the purchase of an undivided half interest in certain sections of land seized in that suit as the property of Lee. The grounds of injunction insisted upon in this court are : First, that the plaintiffs in execution have no interest or property in the debt, having long since transferred it to the firm of Martin, Pleasants 8f Co. Second, that since the purchase of the property by the plaintiff, a suit has been commenced to evict him from one undivided half of it.

It is in evidence, that after the institution of the suit against Lee, the claim of the plaintiffs was transferred to Martin, Pleasants Sf Co., with the express agreement, that the suit should go on in the name of the original plaintiffs, for the benefit of the assignees; there is nothing illegal in such an agreement, and neither Lee or the present plaintiff have anything to do with it. A satisfaction of the judgment entered by the parties to the record, or by the sheriff, as the case may be, will sufficiently protect them.

On the trial, witnesses were offered by the defendant to testify, that at the sheriff’s sale, the plaintiff’s attorney and the sheriff proclaimed to the bidders, that the interest of Lee in the lands about to be sold, was only one-fourth instead of one-half, as stated in the advertisement; and also, that the plaintiff in injunction knew the extent of Lee’s interest, and the defects of the title he pretended to have. The plaintiff excepted to this testimony, on the ground that it contradicted the advertisement and the sheriff’s deed; the objection was oyerruled, and the plaintiff took a bill of exceptions.

The testimony may not have been admissible to contradict the advertisement and the sale by the sheriff, but it was properly received in support of the allegation in the answer, that the plaintiff had knowledge, at the time of the purchase, of the outstanding title to a portion of the land upon which he has since been sued; the evidence establishes that fact conclusively, and the plaintiff has no color of right to refuse to pay the price before actual eviction. C. C. 2535, 2598. Bemis v. Dwight, 3d Ann. 337. Fuller v. Harman, 9 R. R. 205. Salland v. Lee, 9 R. R. 514.

The defendants have asked that the judgment be amended so as to allow 6hem interest and damages. We think they are entitled to that relief.

The judgment is therefore amended, so as to allow fifty dollars for interest against the plaintiff, and the sum of fifty dollars for damages against him and George D. Shadburne, his surety on the injunction bond in solido; and, as amended, the judgment is affirmed, with costs.


text:
    Mary Louisa Grice v. Martha Ann Pearson et al.
    No action can be maintained against the heirs of a deceased person, upon the promise of the deceased person to take charge of the plaintiff, to educate her, to settle her in life, and to give her the hulk of her estate, at her death; even where the deceased had made a will in favor of the plaintiff, which was adjudged to be void from defects of form. Such a promise by the deceased would be void for uncertainty, and being in the nature of donations mortis causa, will be considered as revoked, unless embodied in a valid will.

      APPEAL from the District Court of Concordia, Farrar, J.

      Alfred Hennen, for plaintiff.

      Stacy and Sparrow, and R. H. Mart, for defendants.
   The judgment of the court (Eustis, C. L, absent,) was pronounced by

Rost, J.

This is an action against the heirs at law of Nancy Neal Jones, deceased, upon her promise to take charge of the plaintiff, to educate her, to settle her in life, and to give her the bulk of her estate at her death, which promise, it is alleged, was in part executed by Mrs. Jones taking charge of the plaintiff and putting her to school; and, also, by making a will in her favor, which has since been adjudged to be void, for defects of form.

The defendants excepted to the action, on the ground, that the petition discloses no cause of action; and the plaintiff has appealed from the judgment sustaining that exception.

~We are of opinion, that the petition discloses no obligation, binding in law upon the heirs of the deceased, however binding it may be in conscience. The alleged promise of the deceased, to settle the plaintiff in life, and to give her the bulk of her estate at her death, even if made in the proper form, would be void for uncertainty; they, moreover, partake of the nature of dispositions mortis causa ; they were essentially revokable, during the life of Mrs. Jones, and must be considered as revoked, unless they have been embodied in a valid will.

Since the abolition of adoption in this State, tutors and under-tutors are not permitted to surrender the absolute control and care of the persons of minors to any one, except so far as may be necessary for their education ; and no action can be maintained on the agreement, entered into for that purpose, with Mrs. Jones.

It is therefore ordered and decreed, that the judgment be affirmed, with costs.


author:
Eustis, C. J.
      Slidell, J., Eustis, C. J.

text:
    Succession of Auguste Tete.
    Where the husband buys property at the succession sale of his wife’s father, for which he gives his own notes, and they are afterwards received by him in settlement of his wife’s share of the succession, she has a legal mortgage against his property for the amount of the notes, provided it is shown, that he was solvent at the time he received them.
    The article of the Civil Code, 2235, in declaring, under what circumstances the authentic act shall not be lull proof between the parties, uses the word “ forgery” in the sense of “jalsity.”

    The offence of making a false act by a notary, is punishable by the act of 7th of June, 1806.
    Where a notary has been convicted of a misdemeanor in office, by executing a false act, the instrument no longer makes full proof; but, until the act is attacked on this ground, it remains authentic and valid in point of form. There are exceptions to this general rule, viz., cases in which one individual personates another, or where an insane person makes a will.
    APPEAL from the District Court of Assumption, Randall, J.

      J. C. Beatty, and Benjamin and Micou, for the widow Tete.

      C. A. Johnson and Miles Taylor, for Blanchard, Eimer Co., creditors.
   The judgment of the court (Preston, J., not sitting in the cause from interest,) was pronounced by

Eustis, C. J.

This appeal is taken by certain judgment creditors of the succession of the late Auguste Tete, from a judgment of the Court of the Fifth District, by which a preference over their claims is accorded to the surviving wife, resulting from a receipt by her husband of his own notes, as the paraphernal property of the wife. A similar case, in the same succession, came before us in 1849, and it is reported in 4th Ann. 465, under the title of Slatter v. Tete.

The evidence in that case, established the delivery of the notes to the husband. They were received by the wife, on a partition of the estate of her deceased mother, as her share in the succession, and were handed by her to her husband. These notes bore neither privilege nor mortgage; no proof was administered of their value, or of the solvency or pecuniary condition of the affairs of the husband, at the time. Under the provisions of the articles 2367 and 3280 of the Code, and uniform jurisprudence of the State, we are compelled to decide against the claim of the wife, in favor of the judgment creditor of the succession.

In the present case, that difficulty has been removed, and it is established by competent evidence, that the husband was apiply solvent at the time he received the notes. The notes were, therefore, the representative of real value; and conceding, that their delivery is sufficiently proved, as their origin is unquestionable, we will assume that they created a legal mortgage, in favor of the wife, on the property of the husband. Subsequently, the appellee executed acts of renunciation of her mortgage, in favor of the appellants; and, on the trial of the cause, the appellants having offered these acts in evidence, tjje appellee offered testimony to contradict them, and to show that they had not been signed by her, in the presence of the notary. The district judge received this evidence, to the admission of which, a bill of exceptions was taken. The grave question presented, by this bill of exceptions, has been argued with great care at bar, and we will pro-cede to determine it, without noticing the very irregular manner in which it was raised in the court below; and, under the hope, that matters of this importance will be brought before us in a distinct and separate suit, and not cumulated with proceedings which only embarrass their decision. The effect given by law to authentic acts, rests upon the presumption, that a public officer, exercising a high and important trust, under the solemnity of an oath, has done his duty when acting within the scope of his authority. Selected for their character, capacity and probity, as notaries are presumed to be, the law attaches full credit to their official acts. This prerogative is established in the interest of public order, to maintain peace among men, and to prevent contestations concerning the proof or evidence of their conventions. The act passed before a notary, under the formalities prescribed for its execution, constitutes a record and a certified copy, under the hand and seal of the officer, is received as full proof of the original. Courts of justice, by means of these officers, are relieved from a large mass of business, which would otherwise impede and embarrass their ordinary proceedings. Meetings of creditors are held before notaries; a large portion of the business of suits in partitions, is accomplished before them. They make wills; they hold and conduct meetings of families, in which the interest of minors are concerned; they receive acknowledgments of the condition of persons, acts of emancipation, donation, and every species of conventional obligation. Indeed, the importance of their duties, and of the faith to be attached to their acts, cannot be overstated ; they reach every relation of society.through the life of man, and his death is a new call for their services. All proceedings in the settlement of successions, not had in court, are conducted before the notary.

The authentic act, as relates to contracts, must be executed before a notary public, in the presence of two witnesses, free male and at least fourteen years of age, or of three witnesses, if the party be blind. If the party does not know how to sign, the notary must cause him to affix his mark. Gode2231. Theauthentic act is full proof of the agreement contained in it against the contracting patties, their heirs and assigns, unless it be declared and proved a forgdry. Art. 2233.

An act, whether authentic or under private signature', is proof between thé parties, even of what is there expressed only in enunciative terms; provided, the enunciation have a direct reference to the disposition. Art. 2235.

The first part of the article 2233, is taken literally from the article 1319 of the' Code Napoleon, which provides: “ L’acte authentique fait pleine foi de la convention qu’il renferme entre les parties contractantes et leurs heritiers ou ayant cause. Neanmoins en cas de plainte en faux principal, l’execution de l’acte argue de faux sera suspendue par la mise en accusation; et en cas d’mscription de faux faite incidemment les tribunaux pourront, suivantles circonstances, suspendre provisoirement l’exécution de l’acte.”

The article of our code is silent, and contains no provision whatever as to the mode of proceeding, by which the forgery or falsity of the act is to be established. The article of the Code Napoleon contains ample provision on this subject. The words of the article in that code, are technical and peculiar to the French criminal jurisprudence ; and the word forgery in our code, is not used in the particular sense of our criminal law, but in the sense of the word faux,,or falsity. . The article in the French Code means, that the authentic .act is full proof of the agreement contained in it, &c.- •, but, in the event of a public charge of falsity being made, affecting the act, its execution shall be suspended during the prosecution ; and, in the event of a charge of falsity being made incidentally, courts may, according to' circumstances, suspend, provisionally, the execution of the act. In order to understand the whole scope and operation of this article, a reference must be had to the mode of proceeding under it. In the first case stated in the article, where there is a public accusation of falsity, the accused is delivered to the criminal tribunal, under theforms of an ordinary prosecution for a crime ; this is called, the charge en faux principal. In the other ease, that of the charge of falsity made incidentally, faux incident, is, when in the cause of a suit, the charge of falsity is formally made, and the nullity of the act demanded by reason of its falsity. In this case, the proceedings are conducted according to the rules laid down in the eode of civil procedure. The civil suit is suspended until the proceedings on the charge of falsity are determined, whenever the charge is made by one of the parties, touching an act which is to be relied upon as evidence in the suit. The mode of making the charge, and the proceedings under it, are regulated by special articles of that code. The result is, that the proceedings may be considered as initiatory of a criminal prosecution, if there should be proofs of falsity or falsification ; and that no judgment can be pronounced, either initiatory or final, ih relation to the falsity, except on the action of the' officer representing the State, to Whom all charges of falsity must be communicated, by reason of the interest of society in the' preservation and truth of public records.

The authentic act makes full proof of the conventions and facts, which it is competent for the notary to Certify, so that they cannot be repelled by a simple denial, nor can their falsity be proved by ordinary means. Their falsity can* undoubtedly, be proved, because a public officer may fail in the discharge of his duty, and the law would not leave the citizen without a remedy; but such proof can only be made in the difficult proceedings of inscription defaux, under th's Code of Procedure, art.- 214 to 251.

The authentic act, not only is full proof of the agreement, but of what passed before the notary in the completion of the act; not only of quod eonventum, but quod acVwm est. Droit Civil par Marcadé, vol. 5, p. 24. Commentary on art. 1319. Code of Civil Procedure, articles 214 to 251.

We have no such provisions in our law ; our codes and statutes are silent on the subject. The mode in which the act, the authenticity of which is attacked, shall be declared and proved a forgery, was undoubtedly intended by theframers of the code, to be provided for afterwards; but, the omission has never been supplied by any subsequent legislation. The very embarrassing question presents itself, Whether authentic acts are on the footing of ordinary writings, as to their effect as evidence, or are protected by the sanctions with which the security of property and of personal rights, as well as the law, requires they should be invested.

It must not be supposed, that the offence of making a false act by a notary public, is without punishment by our laws. It comes within the denomination of misdemeanors in office, and is reached by a statute of the 7th of June, 1806.

If any judge, justice of the peace, sheriff, or other civil officer, shall be guilty of any misdemeanor in the execution of either of their respective offices, he shall, on conviction thereof, suffer fine or imprisonment, or both; shall be rendered for ever incapable of holding any office of profit or trust, and shall, moreover, be liable to action by the party injured.

If a notary officially certifies to be trae, what he knows to be false, he is guilty of a misdemeanor, and can be punished under this statute. The sentence of the offender carries with it, necessarily, the decision of the court on the falsity of the act on which the prosecution rests ; and it may be considered as a declaration, and that its falsity has been proved. In such a case, the requisites of the article 2233, has been complied with virtually ; and the act no longer makes full proof, or has the attribute of authenticity, which it previously had.

By pursuing this course, in the establishment of the falsify of the act, the reason, purpose and spirit of the article 2233, are carried out, and its letter is observed as closely as the present state of our legislation will permit. The law looks to the preservation of the authenticity of acts passed before a notary, as a matter of public order, in which the great interests of society are involved, and will not permit the official doings of the public officer to be drawn in question, except where the law itself has been violated ; and, as in other criminal cases, requires the intervention of its minister, before the truth of its records can be called in question. This requisition is no obstacle to the parties having full recourse in annulling or impairing the effect of an act, by way of rescission, for any of those causes which affect the validity of the agreement contained in it. The act may be authentic and valid in point of form, and the agreement it contains may be a nullity or inoperative, in whole' or in part. It may be defective-in point of form, and invalid as an authentic act; but the contract, under private signature, which it contains, may be perfect iu form and effect. The validity of the agreement is independent of the authenticity of the act, which is a matter of form-; and-which, when clothed with certain forms, the law requires should be maintained. The records of a notary are closely assimilated to judicial' records. The whole system of executory process is based on this resemblance. It is resorted to when the creditor’s right arises from an act importing' a confession of judgment, and' contains a privilege or mortgage, which is an act! passed before a notary and witnesses, in which the debt is acknowledged; for which, the mortgage-or privilege;is given. C. P, 732 et seq. This act, the law declares, shall make proof between the parties, unless it be declared and proved to be a forgery. 8 Toullier, 64 et seq.

Pothier says, the authentic act makes full proof, by itself, of what it contains. Nevertheless, authentic acts may be attacked as false, but until the accusation of falsity is determined, and the acts have been adjudged to be false, they must be provisionaly executed, which is decided by the law 2, Code ad leg. corn, de falsis. A wise decision, since crime is not to be presumed; and it would be dangerous to allow debtors to procrastinate the payment of their lawful debts, by accusations of falsity. Pothier on Ob., 734. It remains to consider the vai’ious decisions referred to by counsel, in opposition to the view we have taken of the intent meaning and effect of this article, 2233.

It may be proper to restate the question under consideration, as presented by the bill of exceptions. The testimony received under the objections of the app ellants was to show, that the acts of the renunciation were not signed by the appellee, in the presence of the notary, in the presence of witnesses. The witnesses offered, whose testimony was admitted, were the notary public) before whom the acts purported to have been passed, and one of the subscribing witnesses, the oither witness having died. They proved the fact, that the act was not signed in their presence, but it is not pretended that the act was not signed by her own free will, and without the influence of force, fraud, or stratagem. The renunciations of the rights of the appellee of her tacit mortgage in favor of the appellants, were made in consequence of the obligation the husband took upon himself in granting the mortgage to secure their debts, to affect the release of the tacit mortgage of the wife. This formal obJiobligation in the acts of mortgage, the wife complied with, by executing the acts of renunciation in favor of the several mortgage creditors, in which there is a recital of her appearance and signature, at the office of the notary, in his presence and thai of the witnesses, and with the authorization of her husband; the acts bearing the signature of all. Under this state of facts is the appellee permitted to contradict these declarations, .and prove, not that the act was not signed by her, but that it was not signed by her as stated in the act, in the presence of the notary and witnesses Í What is our jurisprudence in relation to this question, whether or not the form of the act can be invalidated by disproving a fact necessary to its validity as an authentic act which has been acknowledged formally by the party, and certified to officially by the notary, and attested by the subscribing witnesses ? A large number of the decisions referred to by counsel, relate to the admissibility of the notary to contradict his own certificate. These cases do not affect the question we are endeavoring .to solve, and need not be particularly noticed.

The first case in point of time which is considered as pertinent, is reported in 5 M. R. 405. It is that of Langlish v. Schons, and was tried before the Supreme Court, in 1818. The first was instituted in order to have a notarial act, which purported to be an act of donation of liberty from the plaintiff to his slave, declared null and void, as forged and fraudulent, and to obtain damages against the defendant for his agency in the fraud. . The evidence adduced to prove the forgery, was the testimony of one of the subscribing witnesses; but it was held insufficient to establish the allegation of forgery. The judgment of the lower court was reversed, and judgment rendered for the defendants. The next case is that of Marie v. Abert’s heirs, 6 M. R. 731, and 8 M. R. 512. The heirs attacked the will of their testator, which was in the form of an authentic act, on the ground of the insanity of the testator. The opinion in that case states, “ The next point seems to have been before us in the case of Langlish v. Schons. We there held, that a public-act might be impeached by the wil nesses who subscribed it. The declaration of such witnesses in this, as in .every other case, may be opposed by other testimony.

In the case of the Firemen’s Insurance Company v. Cross, a wife who had mortgaged her property to secure the payment of a loan received by her husband, which did not inure to her benefit, was permitted to prove by parol, to show that fact, although she appeared alone in the act as having borrowed the money with the authority of her husband. 4 R. R. 509.

In'tho case of Payne v. Phegue, in which a married woman sought to annul an act of mortgage given to creditors of the husband, fraud and deception were alleged to have been practised on her in obtaining her signature to the act, which was not executed in the presence of the witnesses, as it purported to have been. The notary and witnesses were permitted to testify to this fact; but no objection was made to the admission of their testimony. The question presented in the present suit did not arise. It was determined, in that case, that the rpnuueiation which was opposed by the defendants to the rights asserted by the plaintiff was not legally established. The act which was said to contain’it, was not authentic, because her renunciation was not received in the presence of two witnesses, as was proved by the testimony of the notary, and witnesses received without any exception being taken. The two first cases, that of Schon’s and of Alert’s heirs, were determined before the repeal of the Spanish laws, and it does not appear to us, that either of them purport to settle any general rule in relation to the effect of authentic acts. The cases cited by the counsel for the appellants, relate rather to the competency of the notary than the admissibility of the evidence. We do not see how the evidence received under the bill of exceptions can be admitted, without destroying the distinction between public and private acts, and the security afforded by the law to public records. Parties have their full remedies against their conventions, evidenced by authentic acts, in cases of fraud, violence, or deception, but we think that as to the requisites of the act, the certificate of the public officer must be held conclusive, unless the act is established to be false. Unless the public officer is ¡adjudged to be delinquent, his official acts must stand, and this delinquency paust be prosecuted as an offence, in the punishment of which, the State has a deep interest. There may be, doubtless, exceptions to this general rule. The case of a will made by a person insane, as in Alert’s case, was that ofonp person representing another, and thus imposing on the notary and witnesses, would not be within its reason or operation. But we find nothing in the case before us which takes it out of a principle which, in the view of the consequences pf a contrary doctrine, we are compelled to adopt. Under the allegationg with Which the case comes before us, we do not feel ourselves at liberty to remand it, inasmuch as this is the second time the marital rights of the appellee have been before us.

It is therefore decreed, that the judgment of the’district court be reversed; and it is further decreed, that the proceedings before the notary be set aside, that the preference claimed by the appellee to be paid out of the proceeds of the property of the succession adversely to the appellants be disallowed, and the preference to be paid as aforesaid, over her, be adjudged to the appellants; that the administratrix proceed to the sale of the property of the succession without delay, and the payment pf the debts thereof; and the appellee pay the costs of this appeal,

Slidell, J.,

disssenting. Under some of the decisions of our predecessors, cited by the counsel of Mrs. Tete, I have come to the conclusion, that the individuals who witnessed the acts of renunciation, were admissible to prove, that Mrs. Tele, did not sign before the notary and witnesses, but out of their presence, and that independent of the notary’s testimony, which in my view of the matter it is not necessary te determine, their testimony, which the district judge believed, is sufficient proof of the facts. But I must say, that I regret not being able to concur in the views of my brethren, as the ruling is more likely to conduce to the public good.

.Same Case — On a Re-hearing.

THE judgment of the court, on a re-hearing, was pronounced by

Eustis, C. J.

It is ordered, that the fqrmer judgment of this court be set aside; that a new trial be awarded, and the case remanded for further proceedings according to law; the appellee paying the .costs of this appeal.