author: King, J.

text:
    Layton et al., Executors, v. Hennen.
    The description of the property offered for sale, contained in the advertisement of a probate sale, is binding both upon the vendor and the purchaser, and neither can insist on any thing said by the auctioneer at the time of sale which in any way varies from, or adds to, the printed conditions or description of the object offered for sale. No error, caused by representations of tile auctioneer at variance with the printed advertisement, will vitiate the sale.
    APPEAL from the District Court of the First District, Buchanan, J.

      Preston, for the plaintiffs.
    Molise, for the appellant.
    The judgment of the court, in this case, was delivered on a re-hearing, an opinion having been read on the first hearing, reversing the .judgment below and rendering one in favor of the defendant.

       The following opinion, first read in this case, was prononneed by
      Slidell, J. The petition charges that the plaintiffs, in pursuance of authority from, the Court of probates of Jefferson parish, caused to be exposed at public sale, through an auctioneer, twenty shares of the capital stock of the New Orleans and Carrollton Railroad Company, belonging to the succession of the testator ; that Hennen became the-purchaser at $62 75 a share, payable at sixty days ; that they have offered a transfer of the stock, but that he refuses to receive it and pay the price; they pray that he he adjudged to receive a transfer, and to pay the price. The procés-verbal of the auctioneer was annexed to the petition. It sets forth the sale as follows: “ Twenty shares of the Carollton Railroad at $62 75, adjudicated to D. N. Hennen, $1255.” The defendant pleads the general denial, and pleads specially representations made by the auctioneer at the sale, which he alleges were untrue.
      It was proved at the trial, and this fact is undisputed, that there are three kinds or classes of Carrollton Railroad stock. These are, the stock of the original Railroad company, being full paid, to wit, $100 a share; stock under the amended charter, half paid, or $50 a share; and stock under the amended charter full paid, or $100 per share. The subject is more particularly explained in the case of Millaudon v. The New Orleans and Carollion Railroad Company, 3 Rob. 488.

        The first point which it is proper to consider is, what class of stock was here intended to be sold? Although the proces-verbal is entirely silent on the subject, yet it is not dispnted before us that the stock belonging to the succession was full paid stock. Of which of the two classes of full paid stock was the stock in question ? This is a matter not ascertained either by the proces-verbal, nor even by the plaintiffs’ petition. Was this material ? That it was so, is plain from the testimony. It is shown that, at the time of this sale, there was a very serious difference in the market value of these two classes. Tho difference was $30 a share in favor of the full paid stock-under the amended charter over the full paid stock under the company’s original charter.
      The question then presents itself, what did the auctioneer sell and what did Hennen buy? What was the contract between these parties, the specific execution of which is sought to be enforced by the petition, and how is it proved? Tor an answer to this essential enquiry we look in vain to the plaintiffs’ petition, or to'the proces-verbal offered in evidence. Neither of these designate whether it was the old or new stoek.
      •It is a -well settled principle that a party who seeks to enforce the specific execution of a contract, must not only prove the contract, .but the terms of the contract as proved must be so precise as that neither party could reasonably misunderstand them. This doctrine rests upon an elementary principle of the contract of sale. The thing sold is an indispensable ingredient in the contract of sale, and the thing sold must be certain. Where there is uncertainty as to the thing sold, the decree of specific performance based upon -such -a contract must partake of the same uncertainty, and wants an essential ■requisite of a decree. In the case before us, if a decree of specific performance be rendered adjudging the defendant to pay the plaintiffs $1255, upon the transfer to the defendant of twenty shares of full paid Carrollton Bank stoek, what shares are the plaintiffs to transfer ? There are two kinds; one was worth in.the market $30 a share less than the other. If under this decree the plaintiffs may transfer either, the decree is both uncertain and unequitable.
      The plaintiffs’ argument, when .they contend that we must look to nothing but the proces-verbal of sale, and cannot enlarge it by evidence .of tho auctioneer’s declarations, is suicidal, for no lawful decree can be based upon this pnces-verbal. In a judicial sale at auction, as in an ordinary sale, .the seller is bound to explain himself clearly respecting the object of the sale — the thing sold. If it be uncertain what is sold, there can be no aggregatio mentium. The mind of the buyer and the mind of the seller must agree. ■But no agreement can 'be supposed to exist when the subject of the sale is thus uncertain. If, therefore, we assent to the position of the plaintiffs’ counsel, and reject the evidence of what occurred at the sale beyond the proces-verbal, a contract is presented which is void for uncertainty, and no specific performance can be decreed. If, on tho other hand, it be admissible to -consider this caso upon the testimony of the bystanders and the auctioneer as to what occurred at the sale, the case is still against the plaintiffs. The weight-of evidence leads us to the. conclusion that what was said induced the defendant to suppose that the stock was of that class the most valuable in the market, while in fact the stock held by the succession is not of that description, but is old stock. Under ¡these circumstances it would be unequitable to hold .the defendant to a specific performance, and to compel him to pay the plaintiffs for their stock a price which exceeded by .,$30 tho market rate at which he could have purchased it at private sale from a bystander, who, acting under the same misunderstanding which operated upon Hennen’s mind, was his competitor at the sale. Obscuritatem pacti nocere potius debere venditori, qui id dixerit, quam emptor'i; quia potuit re integra apertius dicere.

      The plaintiffs have argued that in reality the rights of full paid stockholders under the old charter are equal to those of full paid stockholders under the new charter, or, as they •are called, in the stock market, Millaudon stockholders; and that the .public opinion to the .contrary is a delusion. It is not material to decide .this question now; nor, as to the decision in Millaudon’s case, to express a dissent or concurrence with the opinion there ■announced.
      The estimation of .the new stock in the market as a privileged stock in the distribution .of the bank’s assets formed a material quality in the thing apparently offered for sale, and with regard to this quality the bidders were misled. Thus, whether we confine the cause to the proces-verbal of the auctioneer, or determine it by the parole evidence of his de■clarations, in either view the case is against the plaintiffs. In the former, the sale is void uncertainty; in the latter, the misrepresentation .bars the specific execution.

   The final judgment was pronounced by

King, J.

The plaintiffs, as ¡cutors, have instituted this action to compel the defendant, Hennen, to accept a transfer of twenty shaves of the capital stock of the Carrollton Railroad and Banking Company, adjudicated to him at a probate sale of a part of the effects of Robert Layton, deceased, and to pay the price of adjudication. The defendant admits that he purchased twenty shares of the stock of the Carrollton Bank, at public sale, but offers as a reason why he is not bound to comply with the terms of the adjudication that, the auctioneer represented to him and to other bystanders at the sale, that the stock offered belonged to a class much more valuable than that which was adjudicated. To understand the nature of this defence, it is neeessaiy to state that there were three classes of stock of the company. The first consisted of shares paid in full, of the original subscription, under the act of 1833. The second, of shares of the stock created by the act of the 1st April, 1835, which, under a resolution of the board of directors, known as “ Millauclon’s resolution,” were paid in full by anticipation. The third, of shares of the stock created by the last recited act, on which only $50 had been paid.

A controversy arose between Millaudon and the bank, in relation to the stock of the second description, which was finally determined in the Supreme Coni't. The case is reported in the 3d vol. of Robinson’s Reports, p. 488. It is contended that the decision in that case, recognises in the holders of stock, paid in full under Millaudon7.» resolution, rights superior to those of the owners of stock paid in full under the original act of incorporation, on the final liquidation, of the bank’s concerns; and that the defendant was induced by the representa^ tions of the auctioneer, to believe that he was ¡mrciiasing full paid stock under Millaudon7s resolution, whereas the stock adjudicated .to him belonged to the-first class. The judgment of the lower court was in favor of the plaintiffs, and. the defendant has appealed.

It is unnecessary to enquire whether the alleged difference between the two-descriptions of full, paid stock has been recognised in the case- of Millaudon v.The New Orleans and Carrollton Railroad Company. The stock offered was-described in the advertisements as “fall paid stock,77 and was really such. If the fact that there were two kinds of “full paid stock” rendered the description-indefinite, the purchaser should have addressed- his enquiries- for further information to the executors, who alone were authorised to give it. The-advertisements are binding upon both the vendor and the purchaser, and neither party can insist on any thing that was said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions oi-the description, of the object offered. Babington on Auctions, Law Lib. 18. 19 La. 18. The information in the present instanee was asked of the auctioneer, in whom* the law recognises no authority to give it, and who is not shown to have been authorised by the executors to furnish it.

In the absence of an express authority from the executors,, no error caused by the representations of the auctioneer at variance with the printed advertisements, will vitiate the sale.

Slidell, J., adhered to the opinion first pronounced.

Judgment affirmed.

       Eustis, C. J., did not sit in this caso, having been of counsel.


source: Caselaw Access Project

author: King, L

license: Public Domain

text:
    Millaudon et al. v. Price et al.
    Where a broker, acting as tbe agent of tbe vendor of a quantity of salt stored in bags, represents to the purchaser that it had been in store only five or six months, when ithadin fact been stored for fifteen or eighteen months, and the evidence shows that the statement of the broker produced the impression on the mind of the purchaser that it had not been stored longer than five or six months, the representation being as to a point material in judging of the condition of the article, and the vendor being bound by the representations of his agent, the sale will be rescinded; and this though the purchaser examined the salt before buying, for the misrepresentation might liaye influenced the character of the examination made by him.
    The general rule is that a vendor .is bound fo good faith, and if he knows the article offered for sale to he defective he is bound to state the defects. The exception to this rule is that, where the article is susceptible of convenient inspection and examination, the purchaser is , bound to make and abide by such examination. Salt in bags is not susceptible of inspection and examination without much trouble aijd inconvenience.
    A PPEAL from the Commercial Court of New Orleans, Waits, J,

      Revjamin JjL and Miaou, for the appellants,
    cited Story on Sales, 369.

      Randall, fop the defendants.
    Good faith required that plaintiffs should have declared the time that the salt had been in store. C. C. 2496 to 2499, 2507, 2523. 8 Mart. 709. The vendor is bound to warrant the thing sold. C. C. 2449 to 2451. As to the natüre and effect of simple inspection, and how far it will exonerate the vendor from the effect of his representations, concealments &c., see C. C. 2496 to 2499, 2507, 2509, 2523, 2525, 2526,1891, § 3,4. Rouzel f. McFarland, 8 Mart. 704. Williams v. Millar, 9 La. 134. Sh&pardv. Kain, 5 Barn, and Aid. 240. Story on Sales, § 294, 16 Duranton, 339. 17 La. 97, 18 La. 37. 3 Rob. 90.
    In this case the judgment pronounced by the Commercial Court was in the following words :
    The present litigation grows out of the sale and purchase of 2,400 sacks of salt, half of which were fine salt and half coarse. The plaintiffs had in store that quantity, which they were desirous to sell at some sacrifice, as they had bound themselves to deliver up the store which contained it to new lessees. A broker, who was apprised of this circumstance, applied to them to be employed to sell it, and was directed to do so at the limit of 87 cents per sack, coarse salt in good shipping order, then selling for$l DO to $1 05, and fine, for ¡¡¡¡115 to f 1 20 delivered, the then current market price. The broker offered the salt to Capt. Taylor of the steamer Missouri, stating that it had been in store from five to six months. Capt. Taylor .went to examine the salt, pronounced it in bad order, and refused to make the purchase ; the broker then offered the salt to defendant Frost, stating to him the reason why the salt was offered at so low a price. Frost made inquiry as to the length of time the salt had been in store, and the broker answered fiveorsix months, and that the salt was in good order, and urged Frost to go and see the salt. Frost replied that if it had .only be.ep in store five or six months and was in good order, it was not necessary, and he would at once make the purchase; the broker, however, was unwilling to conclude the bargain unless Frost would go and see the salt., The broker assigns on his examination, as a reason for his desire that Frost should see the salt before he purchased it, that the coarse salt was stored under an open shed, and part of it had become black with dust, &c. Accordingly they went together to see the salt, the broker opened the doors of the store where the fine salt was stored, and Frost went over the salt, striking ljis heel into the bags to ascertain tljeir soundness; he also looked at the coarse salt. The top bags of the salt looked to be in good order. After this examination Frost offered 85 cents per sack; on reporting this offer to Morgan, he declined taking it. The broker was to receive two cents per sack for brokerage, and being desirous to effect the sale he offered to relinquish one cent per sack if Frost would rise one cent per sack in his offer. This was agreed to, and on its being reported to Morgan, he agreed to accept the price, going himself to make the bargain with Frost. The sale was made on the 8th September, 1845, and the salt was to be removed on or before the 10th of September. On boasting of his bargain in the presence of one of his neighbors, Frost was then first informed thatthe salt had been in store for sixteen or eighteen months. Frost gave an order for 1,500 sacks of the salt on the day of the purchase, but on attempting to remove it, the bags were found so rotten that the draymen refused to cart it, and the captain of the boat refused to receive it. Only 112 sacks of the salt were taken away, and on the same day Frost notified the plaintiffs that he would not receive it on account of its condition; and, both parties standing upon their rights, the result has been the present litigation. The salt was afterwards sold by order of court, and brought 65 cents per sack, the defendants themselves-becoming the purchasers of it. Five hundred sacks of the coarse salt were afterwards purchased at 90 cents per sack, and sold at SI .00 per sack, to be used for the curing of hides. Some extra care was taken in removing the 500 sacks of salt; the purchaser had no use for the sacks; and indeed it was sold as damaged in this respect, but it was convenient to his premises, and his vendor had sold it to him before he purchased it. Several witnesses testify to the nature of the representation made by the broker, as to the time the salt had been in store. They state that he made a positive assertion that it had only been in store five or six months. The broker testifies that he did not know how long the salt had been in store; he admits that he stated- it had been in store five or six months, but-addsthathe made the statement that this was his supposition or belief, and that he did not assert it positively. The broker also testifies that, at the time of the offer of the salt, and during their conversation at the warehouse, he several times repeated to Frost that he was to take the salt as it was, and this is corroborated by another witness. It is fully established that the time during which salt has been in stox-e, is of great importance in coming to a correcfconelusion as to the merchantable condition of salt; that if the salt has not been rained upon and is stored in good order, the sacks will remain sound and good duringfive to six months; butthat, after that time, the moisture and acid of the salt will so corrode the sack that it is not expected to be in good .order. It is also proved thatthe salt inquestion had been in store from -fifteen to eighteen months. Salt is sometimes re-sacked; the second-hand sacks and labor required will cause an expense of twelve to eighteen cents per sack. In purchasing salt instore, in order to judge of its condition, much reliance is placed on the length of time it has been stored. Two principal dealers testified that they did not rely solely on this circumstance, but would take down some of the tiers and examine the bottom sacks. Other dealers testified that they never knew this .kind of an examination to be made, that it would be attended with difficulty and labor, particularly as to the salt in the middle of the pile, where it has no ventilation and the sacks are most exposed to rot.
    In deciding on this case, we must, first, determine from the evidence what was the nature of the representation of the broker, and how far it must be allowed to effect the sale. Secondly, whether the personal examination of the salt by Frost bound him to the bargain.
    1st. It cannot be doubted but that the impression was created on the mind of Frost at the time of the purchase, that the salt had been in store only five or six months. It is easy to reconcile the testimony of the other witnesses with that of the broker. Their attention was called to the principal matter stated, to wit, that the salt had been in store only five or six months, while any qualification as to belief, opinion, or supposition, might easily escape their attention orbe forgotten. As the broker admits that he had no knowledge on the subject, it was manifestly wrong on his part to state any given time, even upon supposition. He excuses it by stating that he could not suppose the salt to have been stored longer than five or six months, as it is not usual to keep salt over the season. It is very clear however, that his language produced the full conviction and impression on all who heard him, thatthe salt had not been stored longer than five or six months; and it is manifest that this impression might have great effect upon the mind of Frost in the degree of examination which he made of the condition of the salt.
    2d. I do not consider that salt is an article which is susceptible of inspection or examination as to its condition, without much trouble and inconvenience. The rule, is as stated by defendants’ counsel, that the vendor is bound to good faith, and if he knows the article to be defective he is bound to state the defects. The exception to that rule is, that if the article is susceptible of convenient inspection and examination, the buyer is bound to make and abide by such inspection and examination. This inspection or examination is such as is usually made of the article, to wit: of flour, sugar, áse., by a trier; of a ship, by boring her timbers; if liquors, by a proof-glass, &c. Duranton, vo). 16, p. 339, says, that the buyer will be dispensed from this examination, even as to those articles which are fully susceptible of it, when the article sold is covered up by other goods; and in such case the seller will be held bound to give a good, merchantable article. Representation on a point material to form a sound judgment as to the condition of the article, will also dispense with strict examination.
    In the case of Shepard, v. Kain, 5 Barnwell and Alderson, 240, the ship was advertised to be copper-fastened, and to betaken with all her faults as she lay. She was not eopper-fastened within the meaning of that term among the trade, but her condition in this respect could have been easily ascertained. The court considered that the expression that she was to be taken with all her faults as she lay, did not derogate fromthe representation that she was copper-fastened. Had the statement, that the salt had been in the store five or six months only, been well founded, the defendants would have been bound by the bargain, whatever had been the condition of the salt. As, however, the language of the broker, although perhaps not so intended, was calculated to produce, and did produce, the belief that the salt had been instore only five or six months, when, in truth and in fact, it had been in store sixteen or seventeen months, and this point is a very material oneinjudgingofthe condition of the salt, and as the plaintiffs are bound by the language and conduct of the broker who is their agent, I consider that the defendants are not bound by the bargain.
    This is one of those instances in which the anxiety of the broker to effect a transaction has led to misunderstanding between the parties. With regard to the defendants’ claim for damages for loss of profits, I consider that both parties are in fault in this case. The seller was bound to state so material a fact as the length of time during which the salt had been in store, and the buyer made a loose contract when he did not require that the article should be delivered to him in merchantable or shipping order. Both parties have sufficiently suffered in the expense and trouble of this litigation.
    It is therefore considered that there be judgment for the defendants, and that plaintiffs pay the costs of suit.
   The judgment of the court was pronounced by

King, L

The judgment appealed from in this case is affirmed, for the reasons assigned by the judge of the Commercial Court, with costs.

       Slidell, J., did not sit in this case, having been of counsel.


author: Slideli., J.

text:
    De St. Avid v. Pichot.
    An appeal applied for by motion afc a term succeeding that at which tho judgment was ren* dered, will not be dismissed on the ground that the application should have been by petition in the ordinary form/and not by motion; but in such a case the appellee must be duly cited. Citation is only dispensed with when the motion; is made at the term at which the judgment was rendered, the opposite party being, by a fiction of law, considered as then in court. Stats. 20 March, 1839, s. 19. 22 March, 1843, s. 1.
    Where an appeal is obtained on motion at a term subsequent to that at which judgment was rendered, and the appellant neglects to direct the clerk to issue a citation, and none is issued, the omission must be considered as imputable to the appellant and not to the clerk, and the former will not be entitled, under see. 19 of the stat. of 20 March, 1839, to time to correct the error.
    The sittings of the late District Court of the First District were divided into monthly terms. Stats. 10 Feb'y, 1813, s. 5. 29 April, 1824.

      from the District Court of the First District, Buchanan, J.

      Denis, for the plaintiff.

      H. H. Strawhidge, for the appellant.
   The judgment ' of the court was pronounced by

Slideli., J.

Judgment was rendered by the late District Court of the First District against the defendant, and signed in March, 1845. In March, 1846, an order of appeal was granted, on motion in open court. No citation of appeal was issued. After the transcript was filed, the appellee moved a dismissal.

It is contended by the appellee that the order of appeal was illegal, because it was not made upon a petition in the ordinary form, but on motion; that this was irregular, because the motion was not made at the same term in which the judgment was rendered. This objection is not, in our opinion, well taken. If the court thought proper to entertain the application for an appeal in that form and grant the order, it seems to us the appellant should have the benefit of it. It cannot be said that any injury was done to the appellee by the mode of considering the application. See the case of Prudhomme v. Edens, 6 Rob. 64.

But the other ground taken by the appellee appears to trs1 conclusive. It is that no citation of appeal issued. Under the Code of Practice this was unnecessary. An appellee was not bound to appear unless duly and seasonably cited; and the reports abound with cases in which appeals have been dismissed for the absence, or the informality even, of citation, or its service. To remedy the inconvenience and the frustration of notice, which so frequently resulted from the negligence of clerks and sheriffs, and to facilitate and simplify the remedy of appeal, two statutes were passed. One was the act of 1839, by which it was provided that appeals to the Supreme Court should- not be dismissed on account of any defect, error, or irregularity in the petition or order of appeal, &c., or in the citation of appeal, or service thereof, &«., wherever it shall not appear that such defect, error, or irregularity is imputable to the appellant ; but in all such cases the court shall grant a reasonable time to correct such errors or irregularities, &c.- The other statute was that of March 22, 1843» by which it was declared that the party intending to appeal may do so, either by petition or motion in open court at the same term- at which the judgment was rendered, &c.; and that where an appeal has been granted, on motion in open court, no citation of appeal, or other notice to the appellee, should be necessary.

An appellant is entitled to the benefit of the latter statute, as regards the dispensation of citation, only in the case contemplated by the statute, that is-, when his motion is made at the term at which the judgment was rendered; the opposite party being, by a fiction of law, considered as then- in court; but when the term has passed the old rule applies, and the appellee is entitled to a formal citation. In the present case no citation issued, although at the date of the application for appeal nearly a year had elapsed since the judgment was rendered; and its omission is clearly not cured by the statute of 1843. Nor does the statute of 1839 protect the appellant, because the omission of citation is imputable to the appellant. There being no petition, but simply a motion, the clerk of the court could not be expected to issue a citation. The appellant should have required him to do so; and the irregularity, arising from the appellant’s own act and omission, is fatal.

It is proper to remark that the counsel for the appellant is in error in suppossing that the late First Judicial District Court had no terms, in the sense contemplated by the statute of March, 1843. ' It had monthly terms as is provided in the statute of Feb’y, 10, 1813. ■ See also the act of 29 April, 1824. The misapprehension has arisen from the fact that, in consequence of the pressure of business in the court for many years its sessions were held continuously for many months together, without adjournment. Appeal dismissed.


author: Kino, J.

text:
    Leduf et al. v. Bailly.
    One who exhibits a judgment regularly obtained, an execution issued thereon, and a sheriff's deed to him, has a just title in the sense of art. 3450 of the Civil Code, sufficient to acquire by the prescription of ten and twenty years. In such a case it is not incumbent on the defendant to show a perfect title from the real owner; a title translative of property, derived from a person whom he honestly believed to be the owner, is a sufficient foundation on which to rest the prescription invoked. C. C. 3447, 3448.
    from the District Court of the First District, Buchanan, J.

      Bodin, for the defendant.
    No counsel appeared for the appellants.
   The judgment of the court Was pronounced by

Kino, J.

This is a petitory action, instituted to recover five lots of ground situated in faubourg Lacourse, of which the plaintiffs claim to be the owners by inheritance from their father and mother, Jacques Leduf and Josephine Roussere. The defendant sets up as his title to the property a sheriff’s deed to him made in 1816, and pleads the prescription. of ten and twenty years. A judgment was rendered in favor of the defendant, from which the plaintiffs have appealed.

The ground on which the plaintiffs appear to rely in support of their claim is, that the sheriff’s deed under which the defendant claims purports to convey only the interest of Marie Th&rese Leduf to the lots in controversy, and not that of Jacques Leduf, their ancestor. Many circumstances disclosed by the evidence concur to show that the lots belonged to Jacques Leduf, the ancestor of the plaintiffs, at the date of the seizure and sale; that the intention was to seize and sell them as his property, to satisfy a debt for which he had previously mortgaged them; and that the sheriff through error conveyed the interest of Marie ' Th&rese Leduf against whom the writ was also directed, instead of the interest of the true owner. But the plea of prescription opposed by the defendant renders it unnecessary to enquire whether this error was really committed, for if found to exist it would not affect the result of the controversy. The defendant has exhibited a judgment regularly obtained, on execution issued thereon, and a sheriff’s deed to him. Such sales have been repeatedly held to be just titles, in the sense of the 3450th article of the Code on which the prescription of ten and twenty years may be based. 2 Rob. Rep. p. 466, and the authorities there cited.

It is true that; the sheriff’s deed does not purport to convey the title of the ancestor of the plaintiffs; but it was not incumbent on the defendant to show a perfect title from the real owner, in order to support his plea. A title translative of properly, derived from a person whom he honestly believed to be the owner, was a sufficient foundation upon which to rest the prescription invoked, and such a title has been exhibited. Cl C. art. 3450. No evidence has been adduced to repel the legal presumption, that the defendant’s possession commenced in good faith. See also C. C. arts. 3447, 3448. The youngest of the plaintiffs attained the age of minority more than twenty years prior to the commencement of this suit. . ■ Judgment affirmed.


author: Slidell, J.

text:
    Jacobs et al. v. Sartorius et al.
    A statement in the return of a sheriff that "he served copies of the petition and citation On defendants, through S., their agent,” is not evidence of the agency; and where there is no allegation in the petition, nor evidence in the record, that the person on whom the service was made was agent of the defendant, plaintiff must ho non-suited.
    An omission to serve the petition and citation on the defendant is not cured by service of a writ of arrest; nor can the appearance of the defendant, by counsel, on a motion to set aside the arrest, be considered a waiver of service of citation and petition, nor as authorising the presumption of an acknowledgment of such service.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Micou, for the plaintiffs.

      Prentiss and Finney, for the appellant.
   The judgment of the court Was pronounced by

Slidell, J.

The defendant, Sartorius, was arrested and held to bail, on the 9th October, 1846. On the 12th of October the petition and citation were •served on one StadteJcer, as appears by the return of the sheriff, that he “ served copies of petition and citation on defendants, through Mr. StadteJcer, their agent.” On the 12th of October a rule Was taken by counsel, on behalf of Sarto'rius, to show cause why the order of arrest should not be set aside, which application, after hearing, was overruled. Judgment by default was afterwards taken and confirmed, Sartorius has appealed, and assigned for error that the judgment is null and void, because no service of petition and citation was made'.

There is no allegation in the petition, nor evidence in the record, that StadteJcer was the agent of the defendant, authorised to receive for him service of petition and citation. The return of the sheriff cannot be considered evidence of such an agency, Fortier v. Field, 17 La. 587. The case therefore stands before us as that of a judgment rendered without service of petition and citation. This is required by the Code of Practice, and its omission is not cured by the service of the writ of arrest. This point has been so repeatedly held, that it cannot now be disputed. See Wall v. Wilson, 4 La. 171. Slocomb v. Boswell, 13 La. 10. Zacharie v. Blondin, 4 La. 156. The appearance of the defendant by counsel, in a motion to set aside the arrest, cannot be deemed a waiver of service of citation and of a copy of the petition, nor as authorising the presumption of an acknowledgment of such service.

The plaintiff asks that the cause be remanded to enable him to have a proper service made. The defendant, on the contrary, insists upon a dismissal of the suit, and we think, under the precedents cited, he is entitled to such a decree.

It is therefore decreed that the judgment of the court below be reversed, and that the suit be dismissed, as in case of non-suit, the plaintiff paying costa in both courts.


author: Kixg, J.

text:
    The State v. Jones.
    Under sec. 10 of the stafc. of 30 May, 1846, and art. 108 of -tbe constitution, ono who has taken an appeal from a judgment convicting him of any offence, may be admitted to bail pending the appeal, where tbe offence charged is ono which would have authorised Ins admission to bail before conviction. The bond to be executed by the prisoner under such circumstance is a hail bond, and not a recognisance or appeal bond. The inferior court is not entirely divested of jurisdiction by granting the appeal, the judge being still authorised to admit the prisoner to bail; and the hail bond should be made returnable before the inferior court, which alone is authorised to order the execution of the final decree on the appeal. Stat. 26 May, 1840, s. 5.
    Where one convicted in a criminal proceeding is admitted to hail pending an appeal, the bond may be executed in the presence of any officer of the court or other person designated by the judge;, but the allowing of bail, and the determination of the amount in which the parties are to be hound, are judicial acts, and must he performed by the judge.
    No judgment Gan-he rendered against the sureties-on a bail bond executed, by one admitted to bail pending an-appeal from a judgment in a criminal proceeding, where the charge stated in the bond is not such as- will warrant any criminal prosecution, where it is not shown that the sureties were aware of the charge actually preferred against' the accused and of which he was convicted, nor that they consented to become bound for his appearance to answer any other charge than that stated in the bond. Per Owricm.- If the cause of taking the bond he incorrectly stated the defect cannot, as regards the sureties, be-supplied, as in the case of a recognisance, by reference to the indictment.
    APPEAL-from.the First District Court of New Orleans, McHenry, L The1 facts of this case are stated in the opinion of the court, infrd.

      Prentiss- and Finney, for the appellant.
    I. The recognisance is conditioned! that defendant should appear before the First District Court, on the first monday in December, 1846, and then and there answer the complaint brought againsB him, &c.; when, in fact, at the time said recognisance was taken, and also at the time it was declared-forfeited, no such complaint was pending in said courts but the same was pending on appeal in the Supreme Court. It is clear that a person cannot be legally recognised to appear and answer a charge of crime in1 a court different from-that where it is pending and-triable. The court had no-right to bind defendant Jones to answer a-complaint or charge, while the proceedings were pending on appeal and undecided in the Supreme Court. In. other words, he could not at one and the same time, be legally bound to appear in two different courts to answer to the same complaint. The party was convicted in the court below, and sentence pronounced ; he took an appeal. From the moment the appeal was taken, the jurisdiction-of the court below over the-subject matter of the appeal ceased. The only bond or recognisance which the court below was authorised' to demand or take, was a recognisance of' appeal,-the condition of which should have been, that defendant should appear in the-Supreme Court, prosecute his appeal, and abide by the judgment of that court. 8 Mart. N. S-. 440. 4- La. 205. 7 La. 448. 10 La. 481. 11 La-. 1.98. 14 La. 292. All these are decisions in civil ‘cases, but there is nothing, in the constitution or law that makes any distinction between civil and criminal cases, in regard to the- effect and operation of an appeal-. The reason is the-same in both cases.
    2. The second error assigned is,, that the bond or recognisance sets forth nooffence or crime whatever. The condition is that Jones should appear, &c., “ to answer the complaint brought against him for entering a house without breaking, with intent to steal.” There is no such offence known to the laws of Louisiana, as that of “ entering a housé without breaking with intent to-steal.” The offence-meant to be charged, no doubt, will be found in Bullard & Gurry’s Digest, 261, s. 7, and is as follows: “-If any person, with intent to kill,, rob, steal, commit a rape, or to do or perpetrate any other felony, shall in the night time enter without breaking, or in the day time break or enter any dwelling house or out-house thereto adjoining and occupied therewith, or any office, shop, or warehouse, or any ship or vessel lying in the body of a parish, every such offender,. &c., being duly convicted shall be punished by solitary imprisonment for a term not exceeding one year, and by confinement after at hard labor not exceeding five years,, and be fined not exceeding ?pl,000.” Now, by this statute, the offence consists not in entering any house, with intent to kill, rob, steal, &c.,- but only in entering a certain sort or class of houses with such intent, to wit: dwelling-houses, out-houses thereto adjoining and occupied therewith, offices, shops, or warehouses. These are the only houses, the entering of which, without breaking, with the intent mentioned, constitutes th© offence set out in the statute. It is admitted that it is not necessary in a mittimus or recognisance, to state the offence with much particularity, but some offence must be stated, or the warrant or recognisance is void; all the facts need not be stated, but a substantive and positive offence must be. It is very clear that a man cannot be held bound in a recognisance to answer to the State,for any thing but what purports to be an offence against the State. These principles are sustained by the authorities here cited: “ It is essential to a recognisance for the appearance of the conusor to answer the charges against him, that it show the cause of taking it.” State v. Dag get,. 16 Mass. 446. 9 lb. 520. 8 Term. R. 88. 1 Chitty’s Crim. Law, 103. But the point here made has been directly decided in Kentucky, in the case of West v. The Commonwealth, 3 J. J. Marshall’s R. 641. It was held in that case that “ a recognisance to appear and answer a charge of gaming was invalid, and no judgment could be rendered on its forfeiture. It was admitted by the court that some kinds of gaming were punishable, but that there were other sorts not within the statute; and the principle is distinctly laid down, that no judgment can be rendered on a recognisance forfeited when the charge is not such as will warrant a criminal prosecution.” It may be said that the indictment contains a sufficient charge, .and that the recognisance must be construed in reference to it. We say in answer that the sureties in the recognisance cannot be held beyond the condition to which they have bound themselves. If that condition be .to answer for what ■does not constitute an offence, then their obligation is simply void. . The sureties knew nothing of the indictment; it is not recited in the recognisance, and they tire not bound by it; but even if they were, we contend that the indictment itself sets out no offence whatever.
    3. The third^error assigned is, that the deputy sheriff who took the recognisance, had no authority to do so. By common law, the sheriff had power to •bail only those persons who were indicted before him at his torn. 1 Chitty’s Crim. Law, 98. Our statutes give the sheriff no authority to take recognisances •or bail bonds in criminal cases. To take a recognisance is a judicial act. The sheriff is a mere ministerial officer. But it is said that in this case the judge of the first district allowed the bail,, and approved the sureties, and that he delegated to the officer the power to take the recognisance. Now, if the •taking a recognisance be a judicial act, and there is no statute authorising the sheriff to exercise such a function, it may well be doubted whether the judge .can delegate such a power to him. We deny the right or capacity of the district -judge to confer upon the sheriff, or his deputies, the power of taking recognisances in criminal cases. A recognisance taken in a case, or by a person •unauthorised by law is void. 7 Mass. R. 280. 16 lb. -198. 11 Mass. R. 337. 1 Marshall’s Ky. R. 556. 5 Little R. 208. 8 John. R. 97. 7 Conn. R. 236. 2 Wash. C. C. R. 422. 2 Bibb’s R. 96. 1 -Conn. R. 406. 3 Robinson’s Practice, 24.
    4. But even if the judge had the authority to delegate this power to the (deputy sheriff, then we assign as error, that the recognisance was not taken in .accordance with the order of the court, or the direction of the judge. The judge did not order that the prisoner should give bail to appear before his own .court again, to answer to the same charge. The bond intended by him was clearly an appeal bond, or recognisance of appeal. It cannot be presumed that lie intended an illegal bond or condition.
    But it was contended by the judge below, that the sureties could not set up these illegalities; that they were estopped by the maxim; “In whatever manner .a man binds himself, he shall remain bound.” Now, this maxim has no application whatever to bonds or obligations in criminal proceedings, and is wholly untrue in many classes of cases in mere .conventional obligations; that it does not apply to judicial bonds, .is decided by Judge Martin in the case of Slocomb ,et al. v. Roberts, 16 La. 173. There is another fatal defect in the recognisance. The judge directed the sureties to be held in the sum of $1,000 each. They .are held in the recognisance for $2,000 each. United Stales v. Gordon, 1 Brock R. 190.

      Elmore, Attorney General, for ¡the State.
    The obligation entered into by Jones and his sureties is not an appeal bond; it does not purport to be one, on its face; the court did not call for one — it has no connection with, no reference to, the appeal — it is an undertaking to appear, not an undertaking “to prosecute his appeal.” 1
    But what is the name and nature of this obligation? By what rules and principles shall we test its binding force and effect ? The statutes of this State contemplate that bonds, recognisances, or “ other obligations,” shall be taken from persons charged with the commission of bailable crimes or offences, for their appearance before the proper tribunals. Is this instrument a bond, a recognisance, or any “ other obligation? ” See Greiner’s Digest, 299, 615, 1860.

      “A recognisance is an obligation of record, entered into before a magistrate duly authorised for that purpose, with condition to appear at the sessions or assizes. The partypeed not sign this recognisance; but the record thereof, is afterwards made out on parchment, and subscribed by the justice before whom it is taken. It is a matter of record as soon as taken and acknowledged, although not made out by the justice, and only entered on his books.” Chitty’s Crim. Law, p. 89, vol, 1. “ If any of the conditions of that instrument be not complied with, it becomes liable to be estreated, (that is, taken out from among the other records and sent up to the exchequer,) which renders the party an absolute debtor to the crown for the sum or penalty therein mentioned.” Petersdorff’s Abridgement, p. 355, IX, Estreating Recognisances, vo. Bail in Criminal Cases. “It has many of tlie attributes of a judgment — it binds the lands of the cognizor. and execution may be issued upon it as upon a judgment.” People v. Van Ess, 4 Wendell, 390. Jacobs’ Law Diet. tit. Recognizance, Hence it follows that no one cap take a recognisance who is not either a justice of record, or by commission. Because whatsoever is done in virtue of the king’s commission ought to be taken as matter of record. See Plawkins’ 'P. C, vol. 11, pp. 43 and 44, secs. 1 and 4. The instrument sued on in this case is no recognisance, but a bond, or ordinary obligation, such as that which the coroner was authorised to take at common law, (see Hawkins’ P. C. vol. 2, p. 44, sec. 5), because not a justice of record, nor acting under the king’s commission. It is a matter enpais, while a recognisance is a matter of record. This distinction will, as we shall presently show, render the authorities cited by the opposite counsel entirely inapplicable to the present case. Here there is an ordinary contract. Have Jones and his sureties complied with their contract? He had bound himself to appear before the First District Court on the first monday of December — has he done so? He had bound himself to answer a complaint brought there against him — has he done so? Pie had bound himself not to depart without leave of the court — -has he done so ? and yet each one of these things was a distinct and substantive obligation of his contract. See 10 Wendell, 431. 6 Halst. 124. 1 Blaekf. 202. 2 Blackf. 226. Pías he not, by his non-compliance with any one of the conditions of this bond, forfeited the penalty ?
    But it is objected that one of the conditions of the bond is, “that Jones shall appear to answer a complaint pending against him in the First District Court,” when in fact there is no complaint there against him, to which he can answer. But, there was a complaint against Jones, in the First District Court. His appeal had suspended the action of the First District Court; but whatever might have been the result of that appeal he must necessarily have returned to the District Court for a new trial, if successful in his application to this court, or to see the proceedings commenced against him consumated, by submitting to his sentence, if unsuccessful.
    The second objection, “that there is no offence set forth in the bond,” is not more tenable than the first. In the first place it is not necessary that any offence should be specified, even in a recognisance, if the caption of the recognisance discloses the offence, as the record does in this case. A caption is a formal statement or recital of the proceedings in a case made by the clerk of the court below, when a case is certified to a superior court. This mode of making up a record is not known to our practice. Instead of a caption, an exact copy of the ] roceedings is sent up to the superior court. Now if it be sufficient at common law, that the offence appear in the caption ( Commonwealth v. McNeil, 19 Pick. 127), why should it not be equally so, in our system, when the offence appears ,on the record. If, at common law, the court to which the recognisance is estreated will look into the caption of the recognisance, which is no part of the recognisance, to ascertain the cause of taking it, why will this or any other court be debarred from looking into the record, to see that there was a cause for this bond ? Neither the recognisance in the above cited case of McNeil, nor the bond in the case- of the Stale v. Marlel, 3 Robinson, 22, specified any offence. But it is submitted that the objection, even if it were of any value as pgainst a recognisance, cannot affect a bond. A recognisance, as we have said before, is a matter of record: it must show upon its face, or from the accompanying record, all the requisites of a perfect and legal obligation. It must show a cause, otherwise it will be presumed that there is none to support the obligation. The Court cannot go out of the record to see it. It is a general rule, that a record proves itself, and that the court cannot look out of it to complete it. If, therefore, it sets forth an obligation, it must set it forth entire and complete, and the cause upon which it is bottomed. But a bond is a matter en pais; it-is not necessary that its cause should appear upon its face or in any other way. C. C. art. 1888. If there is no cause, or if the cause is illicit, it must be pleaded in avoidance of the obligation, arid tried before “ the country.” It is evident that the cases cited by the opposite counsel upon this point, can have no application to bonds, which are very different from recognisances. Itis true that some of these cases say that the cause must appear in the recognisance, to show that the court had jurisdiction. Now if such be the reason of the rule at common law, we have nothing to do with the rule itself here — “ cessante ratione legis cessat et ipsa lex,” Our courts are courts of general jurisdiction, and it is not necessary in our pleadings to allege jurisdiction. If the court is without jurisdiction, itis a ground of exception.
    The court will see, by an examination of the cases of the State v, Daggett, 16 Mass. 446; 9 Ibid, 520; 8 Term Rep, 88; 1 Chitty’s Crim. Law, 103; and the much vaunted case of West v. The Commonwealth, 3 J. J. Marshall’s Reports, 641, cited by the defendant’s counsel, that in none of them was the cause of the obligation known to the court. There was no -caption to the recognisance, and consequently the court could not say that there was a valid consideration for entering into the recognisance. The recognisance stood by itself before the court, unaided, unsupported, without explanation. The difference between these cases, and the one now before the court is plain. The whole proceedings are before the court, showing the character of the charge against the prisoner. The court can and must look to these proceedings, if necessary to supply any ambiguity or deficiency in the description of the offence as described in the bond. This is in conformity with the rule laid down by the best authorities. See the cases of The People v. Blankman et al. 17 Wendell, 252. * People v. Stager, 10 Ibid. 433. People v. Clary, 17 Ibid. 375. 1 Chitty’s Criminal Law, 105.
    But it is contended, that this case is a new one in the courts of Louisiana. The counsel for the State thinks differently. This is a proceeding upon a bail bond, given by a party for his appearance before court, upon a day certain; and ' is in conformity wilh the act of the 11th March, 1837. Bullard & Curry, 281. There is nothing new in the form and condition of the bond; the circumstances under which it was entered into are novel; but they do not in any way, alter or change the rules by which the obligation is to be construed. It is to be construed as a bail bond, and as all other bail bonds have been construed by our courts, in all their decisions previous to the adoption of the new Constitution, giving the accused, in certain cases, the right of appeal to the Supreme Court.
    As to the objection that the deputy sheriff had no authority to take the bond: The admitting one to bail is a judicial act; but the filling up of a bail piece, and receiving it when signed, are ministerial acts, 'which the sheriff, or his deputy, may do.
    It is urged that the bond is-not conformable to the order, which called for an appeal and not an appearance bond ; but the order itself shows that an appearance bond was contemplated. It is true that the bond is not conformable to the order in this respect, that the ox-der called for two sureties in the sum of one thousand dollars each, whereas the cognisors bind themselves in the sum of two thousand dollars in solido. But they cannot complain if they chose to do more than was required of them. They have not set up error, and cannot be relieved from the consequences of their own acts. 14 La. 191. A bail bond, although arising out of a criminal proceeding, is a civil obligation, the effect of which should be tested by rules and principles which govern all other civil contracts entered into under our laws. The common law of England, or of the States, has nothing to do with it. In all actions for the recovery of the penalties of bonds our courts have always been guided by the principles of our own law. See 3 Mart. 568. 5 Mart. 194. 10 Mart. 197. 2 Ib. N. S. 672. 4 lb, M. S. 21. 10 La. 416. C. C. 3029. Mayor et al. v. Blache et al. 6 La. 519,
   The judgment of the court was pronounced by

Kixg, J.

Jones was indicted for “entering a dwelling house in the night time, with intent to steal”, and found guilty of the offence. From the judgment pronounced upon that conviction he appealed. Pending the appeal he was admitted to bail by the district judge, who fixed the amount of the bond to be furnished, and approved of the sureties offered. A bond was executed in the presence of the deputy sheriff by the accused and his sureties, conditioned for the appearance of the former before the First District Court on a day stated, “ to answer to the complaint brought against him for entering a house without breaking, with intent to steal, and not depart thence without leave”, &c. The defendant 'having failed to appear on the day fixed, the bond was declared forfeited, and a judgment rendered .against the principal and his sureties for its .amount. From that judgment the sureties have taken this appeal.

Before considering the objections to the judgment of the lower court set forth, in the assignment of errors filed by the appellants, it becomes necessary to dispose of the question raised in regard to the character of dxe obligation entered into, and to determine whether it be a bond or a recognisance, and whether it was given .to prosecute the appeal, or to secure the appearance of the accused to abide the final judgment of this court. The instrument is clearly not a recognisance. It was not entered into before a magistrate, nor with any of the forms indispensible to give it the force and eifeel of a recognisance, properly so termed. The order of the judge contemplated that a bond should be given, and not a recognisance entered into. It is equally clear that it is not an appeal .bond. It was not ordered to be given on a motion for an appeal, but on ap application of the accused to be admitted to bail. It has none of the conditions of an appeal bond, and the judge was not authorised by law to require an .appeal bond, on granting an appeal in a criminal case. ■ Acts of 3r846, page 100, §8.

The power of the judge to admit the accused to bail after conviction, underwent a very elaborate examination in the court below. Under our legislation on this subject, we think the question free from doubt. The 108th article of the constitution declares that “ all persons shall be bailable by sufficient sureties, unless for capital offences where the proof is evident or presumption great.” Prisoners convicted are not excepted. The act of the 30th May, 1846, §10, p. 100, permits the accused to be bailed after conviction, if the offence be bailable, when an appeal is granted, on a bond to be approved by the judge. The only bond which the judge was authorised to require .of the accused was a bail-bond, and it is with reference to such a bond that the objections urged by •the appellants must be considered.

The appellants have assigned the following errors: 1st. The recognisance is conditioned that the defendant shall appear before the First District Court, on the first monday of December 1846, then and there to answer, &e., when in feet at the time the recognisance was taken, and when it was declared forfeited, no such complaint was pending in that court, but the same was pending in the Supreme Court. 2d. The deputy sheriff who took the recognisance had no authority to do so. 3d. The bond or recognisance sets forth no offence or crime whatever. 4th. The recognisance was not taken in accordance with the order of the judge.

I. We have seen that under the aet of 1846, the district judge had not entirely divested himself of jurisdiction of the case by granting the appeal, but was still authorised to admit the defendant to bail. The bond for his appearance was properly made returnable before the District Court, which alone was empowered to order the execution of the final decree which might be rendered on the appeal. Acts of 1846, p. 102, § 5.

II. It is contended that the taking of a recognisance is a judical act, which the sheriff, who is a ministerial officer, could not perform. ¥e have seen that the instrument under consideration is not a1 recognisance, but a bond. The granting of bail, and determining the amount in which the parties shall be bound, are judicial acts. These were performed by the judge in the present instance. The bond being subject to none of the rules peculiar to recognisances, may be validly executed in the presence of such officer of the court, or other person, a.s the judge may delegate to receiv'e it.

III. The third objection urged is, in otír opinion, fatal to the validity of the bond, as far as relates to the sureties. No such offence is known to our laws as that for which the accused bound himself to appear and answer. The charge stated in the bond involved no violation of the criminal laws of the' State, and if proved would have subjected the accused to no punishment. It has been held “ that no judgment can be rendered on a recognisance forfeited, when the charge is not such as will warrant a criminal prosecution”. 3 J. J. Marshall’s Rep. 641. The principle upon which the decision depends applies equally to bonds. It has not been shown that the sureties were aware of the charge really preferred against Jones, and of which he was convicted; nor that they consented to become sureties for his appearance to answer any other charge than that stated in the bend. As the bail-bond is not necessarily taken before the court, and in the present instance was not so taken, the sureties are not to be presumed to have any other information in regard to the cause of taking it than that derived from the instrument itself,- nor that they intended to obligate themselves further or otherwise,- than is stated in the bond. If the cause of taking the bond be incorrectly stated the defect cannot, as regards the sureties, be supplied,, as in the case of a recognisance, by reference to the indictment. In the absence of proof the suretiei cannot be supposed to have intended to answer for the appearance of the accused to meet a grave criminal charge, when the bond- itself sets forth the charge to be an act involving no crime whatever.

In the case of the State v. Martel, (3 Rob. p. 22,) to- which our attention has-been directed, the condition of the bond was for the appearance of the accused “ to answer such matters and things as shall be objected against him on behalf of the State, and not depart”, &c. It was notobjected in that case that the bond was insufficient in consequence of no specific offence having been stated, nor is it necessary to determine whether such an objection could have been successfully urged. There is a marked difference between the bond in that case and the present. In the former, the sureties bound themselves for the-appearance of the principle to answer all charges that might be found against him. In the present, they have obligated themselves for the appearance of the accused to answer to a specific charge, which is not a punishable offence, and therefore not a sufficient cause upon which to found a bond.

It is therefore ordered that the judgment of the District Court, as far as relates to the appellants Hoioell and Mitchell, be reversed, and that there b© judgment in favor of said appellants.


author: Slideel, J.

text:
    Stagg v. Pomroy et al.
    Where written interrogatories have been propounded to a witness to be examined under a commission, and cross interrogatories have been added by the opposite party, the examination must be restricted to them, unless with the consent of both parties. Stat, 25 March, 1828, ss. ?, 9.
    from the Fourth District Court of New Orleans, Straiobridge, J.

      Lee, for the plaintiff

      Frost and Upton, for the appellants.
   The judgment of the court was pronounced by

Slideel, J.

A commission was taken out by the plaintiff for the examination of a witness in New York. Interrogatories were propounded by the plaintiff, and cross interrogatories were furnished by the defendants. There was no consent that any further interrogatories might be propounded at the examination by the parties or counsel attending on their behalf. It appeal's by the commissioner’s certificate that, at the examination, a person appeared as counsel on behalf of the plaintiff and examined the witness, and that no one appeared on behalf of the defendants. What portions of the answers to the interrogatories, some of which answers were very long and minute, were the result of the examination of counsel, does not appear. • To the introduction of the testimony thus taken the defendants excepted.

We think the execution of the commission was irregular. The defendants annexed cross-interrogatories to such interrogatories as were presented to them in writing, and had a right to suppose that the examination of the witness would be restricted to them. Any further enquiries propounded by the plaintiff’s counsel before the commissioner were exparte, and to the disadvantage of the defendants, who had no opportunity of counteracting them by cross-examination. Whatever right a party may have to attend personally or by counsel, before the commissioner, it is quite clear that he cannot without the consent of the opposite party, propound further interrogatories or take the examination of the witness out of the commissioner’s hands. See the Act of 1828, p. 152.

It is therefore decreed that the judgment of the court below be reversed, and' that there be judgment for the defendants as in case of non-suit, the plaintiff' paying costs in both courts.


author: EüSt'ís, C. J.

text:
    Wintz v. Vogt.
    An obligation by which the vendor of a butcher’s stall in a city binds himself under a penalty -not- to sell, or cause to be sold, any meat of a particular hind within the city during two years, is not invalid as being in restraint of trade; and if the condition be violated tha penalty maybe enforced.
    * PPEAL from the District Court of Jefferson, Clarke, J.

      Michel and JA. Burns, for the plaintiff.

      Brewer and Hiestand, for the appellant,
    cited Story on Contracts, § 190. Chitty on Contracts, p. 519. 1 Peere Williams, 180.
   The judgment of the court was pronounced by

EüSt'ís, C. J.

The plaintiff sues to recover from the defendant §500, the amount of a penal bond given by the defendant to the plaintiff as part of the consideration of the sale of a butcher’s stall in St. Mary’s market in this city, the object of which was to secure to the plaintiff the custom and good will purchased by him, which might be diverted from the defendant. The condition of the bond Was that the defendant should not sell, or cause to be sold, on his account, beef meat within the city of New Orleans, or any of the municipalities, or otherwise, for and during the term of two years from the 1st of August, 1844. The defendant Violated the condition of the bond by selling beef in the same market in the third stall from that which he had sold to plaintiff, within the time specified. There was judgment for the plaintiff, and the defendant has appealed.

It is contended that the bond is an agreement in restraint of trade and therefore void, as being against public policy. This case does not come within any of the rules laid down in the english authorities on this subject, or those recognised in other States of the Union, some of which we should under our system hesitate in adopting as.inapplicable to the state of things here. The sale of the establishment of a retailer, with tho eustom’and good will, is a very common contract with us, and violates no law that we are aware of. The effect of such contracts upon the public weal is too remote to be noticed.

Judgment affirmed.


author: Eustis, C. J.

text:
    Kellar v. Fink, Syndic, et al.
    One who purchases a female slave after a child oi lier’s under ten years of age had been sold separately to a third person, cannot claim to be the owner of the child, on the ground that the sale of a child separately from its mother is prohibited by law, where the child was sold at a time when the mother had escaped into a country Where slavery did not exist and her master never expected to recover her.
    A PPEAL from tho Third District Court of New Orleans, ICennedy, J.

      II. JA. D. Ogden, for the appellant,
    contended that, under the statutes of 6 June, 1806, aud 31 January, 1839, s. 16, children under ten years of age cannot be sold separately from their mother; that any such sale is null; and that the child is the accessory of the mother, and becomes the property of any purchaser of the latter. C. C. 456, 461, 490, 537, 2466. Pothier, Yente, no. 47.

      R. M. Carter, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff purchased at sheriff’s sale a negress slave, who was the mother of a child under ten years of age, who had been previously purchased by Emily Bowyer, a free woman of color, one of the defendants. Under this purchase of the mother she claims the child as her property. There was judgment for the defendants, and the plaintiff has appealed.

On the 28th of June, 1841, Nichols, to whom the mother and child belonged, sold the latter to Emily Bowyer. In the act of sale she Was described as an orphan negro girl, named Lucinda, aged about five years, the daughter of a negress slave named Aimée, who had runaway, and goue to Canada. Nichols testified on the trial that the slave Aimée had runaway in 1841, and that when he sold the child he never expected to recover the mother, tie acted, in so doing in the interest of the child, as the person to whom she was sold was a good mistress and took good care of her. "We are at a loss to conceive what right of properly the plaintiff ever acquired in the subjeet of this suit.

Judgment affirmed.


author: Siibem. J.

text:
    Ramsey et al. v. Greer et al.
    No damages can be recovered from the owners-of a steamer for injury done to another by a collision, where defendants are not shown to have heen-in fault.
    from the Fifth District Court of New Orleans, Buchanan, Jv

      Glenn, for the plaintiffs'.

      Emerson, forth© appellants.
   The judgment of the court was pronounced by

Siibem. J.

This is an action for damages occasioned By a collision. Th© court below gave the plaintiffs j udgment for iifty dollars, and' the-defendants hav© appealed.

It appears from the testimony of the plaintiff’s- own witnesses- that th© steamer of the defendants called the Belle of Illinois, was descending the bayour Plaquemines. As she came round a point in the bayou th® Cadmus was lying aground about one hundred yards below the point, with her stern towards the starboard shore quartering out into the bayou, and occupying about half its-width. The turn was so short and the woods so dense that the Cadmus could not be seen by those on board the Belle until she turned the point, and was near upon the Cadmus. The Belle had little steam upon her; just enough to-give-her steerage way, and no more. She was in charge of a pilot of good repute as a pilot in that bayou, and specially employed for the occasion, besides the boat’s usual officers. As soon as the Cadmus was seen the engine of the'Belle was stopped, she commenced backing, and- every effort was made to avoid a collision; but in consequence of the current it was impossible. No alarm was previously given by the Cadmus, by ringing a be]] or blowing off steam. If this had been done, some of the witnesses were of opinion that by bringing the Belle to land, and dropping her by a line, the collision could have been avoided. One witness states that when a boat is going into a bend in this bayou and she is not making the. bend, she usually stops steam and falls down. This witness, however, does not express the opinion that the Belle was badly navigated on the occasion in question, and speaks favorably of the experience and capacity of the pilot employed.

The result of the whole testimony, in our opinion, is, that no fault or want of care was attributable to the defendants; and that if the accident was not one of those unavoidable accidents attributable to the great difficulty of the navigation, it was at least an accident which could only have been prevented by a timely alarm given by the Cadmus before the descending steamer, whose steam perhaps announced her approach, turned the point. No fault being shown on the part of those navigating the defendants’ steamer they cannot be made liable, even supposing that the plaintiffs officers and crew were not chargeable with any fault. See the case of Myers v. Perry, I Annual Rep. 372, and the authorities there cited.

It is therefore decreed that the judgment of the court below be reversed, and that there be judgment for the defendants, with costs in both courts. ■