author: Preston, J.

text:
    State of Louisiana v. James S. Green et al.
    In an indictment for an assault with intent to commit an offence, the same particularity of averment is not necessary, that is required in indictments for the commission of an offence.
    In the prosecution of two or more, under an indictment, charging an intent to commit murder, it is immaterial which makes the assault, or gives the blow, if it is inflicted with the intent charged: all concurring in that intent, the crime is committed by all.
    It is not a sufficient ground for a new trial, that the judge, when the jury returned into court without having agreed on their verdict, instructed them a second time on the evidence, as to matters about which they had made no inquiry, and on the law, as to points on which they had stated neither doubt nor difficulty.
    In summing up the testimony in a criminal case, it is legitimate for the judge to present his views of conflicting evidence, and to advert to such collateral circumstances, which are proved, as may have a favorable or unfavorable bearing on the issue.
    The Supreme Court disapproved of the district court expressing to the jury the determination to keep it empannelled, until a verdict was found.
    APPEAL from the First District Court of New Orleans. Larue, J.

      W. A. Elmore, for the State.
   By the court: (Slidell, J., absent.)

Preston, J.

This case having been tried ex parte, we have kept it under advisement longer than usual, being unaided by argument or authority, on behalf of the State. From the best examination we have been able to give the case, we have come to the conclusion, that the appeal ought not to prevail.

The indictment charges that the prisoner, with two other persons, made an assault upon one Michael Hughes, and with a dangerous weapon, called a colt, inflicted many blows upon him, with intent to commit the crime of murder. The statute prescribes, that whoever shall assault another, with intent to commit murder, shall, on conviction thereof, be imprisoned at hard labor, not exceeding two years.

A leading ground assigned in arrest of judgment is, “that the indictment is uncertain in this, that it charges an assault or offence committed jointly by three individuals, and with one single weapon, without setting forth which of the individuals used the weapon, or committed the assault with the weapon, with the intent to murder.”

In indictments for this offence, the intent forms the gist of the offence, and must be specifically proved. State v. Bill, 3 Harrington, 571. In the prosecution of two or more for the offence, it is immaterial which makes the assault, or gives the blow. If it is inflicted with the intent charged, all concurring in that intent, the crime is committed by all. Had all been convicted under the present indictment, because of the guilty intent of all, although the blow was given by but one, the judgment could not have been arrested. Much less can it be arrested, as but one of the accused was found guilty.' The jury must have been satisfied that the prisoner they convicted, made the assault and gave the blow with the guilty intent to commit the crime of murder, as they acquitted the others.

It is further to be observed, that the 24th section of the act of 1805, under which the indictment was found, does not require the use of any weapon, but only an assault with a murderous intent. If three set upon one with a murderous intent, and an assault be given in pursuance thereof, it is the act of all, and may well be described as the act of all, the intention of all concurring in the great ingredient of the crime.

Moreover, it is settled by authority, that in an assault with intent to commit an offence, the same particularity of averment is not necessary, as is required in indictments for the commission of the offence itself. And it has been expressly held, that in an indictment for an assault with intent to murder, it is not necessary to state the instrument or means made use of by the assailant, to effectuate the murderous intent, though this would be necessary in a prosecution for murder. State v. Dent, 3 Gill and John, Rep. 8. Still we would recommend that in all cases, as in the present, the means used should be accurately stated; but as the intent constitutes the crime, if manifested by an assault, it is immaterial, where it is committed by three persons, which uses the weapon or means manifesting that intent, and therefore it is not necessary to state by which of the three it was used.

A jury having been occupied a whole day on the trial of this case, and kept confined all night in deliberating upon their verdict, were brought into court the next day, and declared their inability to agree. The judge thereupon, without being requested by the jury or counsel, made an elaborate address to the jury, supposed by the counsel of the prisoner to be very hostile to their client, and announced his inflexible determination, that they should be kept together until the prisoner was found guilty, or acquitted. The substance of his address was published in several of the daily gazettes, and is incorporated in a bill of exceptions, and presented as grounds for remanding the case for a new trial, with directions to the judge, to abstain from such remarks to the jury, and not to force a verdict, by keeping the jury together until it is rendered.

Much complaint has been made, that the judge made these remarks, not at the appropriate time for charging the jury, upon the close of the arguments for and against the prosecution, but after they had been engaged a whole night in deliberation, and also without the request of the jury or counsel. But the same thing was done in the case of The Commonwealth of Massachusetts against Snelling, 15 Pick Rep. 321. And it was held by the Supreme Coui't of the State, that where, on the trial of an indictment, the juiy returned into court without having agreed, and the judge instructed them a second time on the evidence, as to matters about which they had made no inquiries, and had stated no difficulties or doubts as to the law, this was not a sufficient ground for granting a new trial.

We have carefully examinedjthe reports of the remarks of the judge to the jury, which are made parts of the bill of exceptions. His warm appeals to the jury on the notoriously vicious state of our society, in relation to dangerous assaults and personal violence, were intended to justify the severe course he adopted, of keeping the jury together, until a verdict of conviction or an acquittal was rendered. It afforded powerful reasons for a self-sacrificing and rigorous performance of duty by the jury, as well as by the court. Such remarks are constantly made by judges sitting upon criminal trials, sometimes mildly, sometimes with strong feelings. Although we would recommend mildness in this respect, on all occasions, we cannot say that the judge, in expressing himself strongly on this matter of public interest, though not at issue in the case, committed an error fatal to the verdict and judgment against the prisoner.

We have not been able to approve of the expressed determination of the court to keep the jury empannelled until a verdict was rendered, or the severe rigor sometimes exercised towards disagreeing juries, in this respect. The frequency of their disagreement is undoubtedly a great evil, and perhaps would justify a constitutional or legislative provision for the verdict of a majority. But if juries are honestly unable to agree, they should not be forced, by physical means or suffering, to surrender their judgment in the most serious matters of life. But the course pursued in this respect on criminal trials, has always been regarded as a matter within the discretion of the court, and not as giving rise to an error, affecting the results of the trial.

The emphatic expressions of the district judge, concerning the necessity of the finding of a verdict for or against the prisoner, must not be isolated from the charge, of which they are a part, nor separated from the connection in which were used, to wit: a further and more deliberate consideration of the case; for which purpose, the judge thought himself not bound to heed the claims of the jury to be discharged, but to direct them still to be kept in confinement. The bill of exceptions purports to give the charge substantially. The reports of the proceedings extracted from the newspapers cannot be considered as going further; and we are bound to hold the strong language of the judge, as admonitions, to the jurors, of the sacredness and importance of their duties, not as attempting to exercise an undue influence upon their rights as jurors, or their judgments and consciences as men; and we cannot hold that its tendency was to coerce, but to quicken their intelligence, and sense of their obligations to give true deliverance on the evidence before them.

The views of the judge, in commenting upon the testimony, were unfavorable to the prisoner. After carefully perusing his remarks, we are unable to say, that he gave more weight to the testimony against him than it deserved, or that he improperly biassed the jury. It is urged, that his comments are liable to the animadversions of this court, on the charge of the judge in the case of The State v. Chandler, 5 Ann. 490, and that case is relied upon to show, that we should reverse the judgment, on account of the hostile remarks.

In the charge of the court in the case of Chandler, the judge used such remarks as these: “I have rarely known a case, in which the crime of murder was more clearly brought home to the prisoner, and I cannot think you can entertain any reasonable doubt of his guilt.” We thought such strong convictions of the guilt of the accused, coming with all the weight of authority from the judge in whom they reposed so much confidence, might impair the right of the accused, guaranteed by the Constitution, to a trial by an impartial jury. We think so still, but find nothing in the remarks of the court in this case at all, to compare to what was said in Chandler’s case. We find no expression of the conviction of the court that the prisoner was guilty, or that the jury could not entertain a doubt of it, and must therefore necessarily find him so. In Chandler’s case we recognized the right of the court, to express its opinion as to the weight of evidence, and comment upon it as much as deemed necessary for the course of justice. We do not find in this case an expression of opinion by the court, even as to the weight of evidence in relation to the great fact charged, an intent to commit murder. To say the most, we only find strong comments on the evidence, which the court evidently thought the course of justice required.

With regard to the character of the accused, not the offence charged against him, we find these strong expressions, which have been most severely criticised: “ It has been proved that James Green, one of the prisoners at the bar, is a man who lives by depredations upon the community; that he is a professional thief, and in addition to this, I am satisfied that he is a desperado, whose liberty is inconsistent with safety to society; that he is a man, from whose character it is natural to suppose, when he is dragged before justice, that he will sustain his cause by subornation of perjury.”

The judge was summing up and comparing the, testimony of six witnesses, who had been examined on the trial, four of whom were called on behalf of the prosecution, and rendered it certain, that a blow of an almost fatal character had been given by the accused to an officer of the police. They were positively contradicted by two witnesses, called on behalf of the accused. The court was led to the conclusion, that the evidence was irreconcilably conflicting, and therefore, on the one side or the other, must be false. He therefore referred to the character of the accused, as he understood the testimony in relation to it, and the motives which might have actuated him, to show the greater probability, in weighing the whole, that his witnesses might have been suborned, or were false, than those on behalf of the State.

In summing up the testimony in a criminal case, it is certainly a legitimate exercise of duty by the court, to present his views of conflicting evidence, and advert to such collateral circumstances which are proved, as may have a favorable or unfavorable bearing upon the principal evidence in the case. We cannot therefore say, that there was any error in the remarks of the judge, in relation to the character of the accused, as having a bearing upon the testimony of his witnesses.

The record shows, that a police officer came near losing his life in the discharge of his public duty; and the state of our society no doubt justified the animadversions of the district judge. And although we would recommend patience and mildness in the performance of our judicial duties, however painful or disagreeable the circumstances in which we may be placed, yet we cannot say the occasion did not require the rigor exercised, and apparently strong feelings manifested on this trial.

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


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Dominique Lanata v. J. L. Grass and E. Massou & Co.
    In an action against the endorser of a draft, he attempted to prove, that the acceptor did not reside at the place where the draft was presented for payment. The evidence was objected to, because the answer contained no allegation under which it was admissible. Held: It was admissible under the plea, that the_draft had not been protested according to law.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Z. Latour, for plaintiff.

      Bermudez and Beauregard, for defendants.
   By the court: (Slidell, J., absent.)

Rost, J.

E. Massou Sf Co. are appellants, from a judgment rendered against them, as endorsers of a draft drawn upon and accepted by Dupuy and Grass of this city, and held by the plaintiff.

The defence in the district court was, that the draft had not been protested according to law, so as to make the endorsers liable.

The protest shows, that the notary went to No. 75 Old Levee, as indicated on the draft, in order to demand payment thereof, and found the same shut; and, on inquiry in the neighborhood, the acceptors could not be found, nor any one who would pay the draft. Without any further inquiry, the protest was made.

On the trial of the cause, the defendants offered witnesses to prove, that Dupuy and Grass never occupied the house No. 75 on Old Levee street, in order to make out the plea in their answer, that the protest was illegal. The court refused to admit the testimony, on the ground, that the answer contained no allegation under which it was admissible. The defendants took a bill of exceptions.

It not being shown, that the direction on the draft, upon which the notary 'acted, was given by the acceptors, we are of opinion, that under our liberal system of practice, the evidence was admissible under the plea of the defendants, that the draft had not been protested according to law. If the judge thought the plaintiff was taken by surprise, he might have continued the case to another day, but the evidence should not have been rejected.

It is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law, and in conformity with this opinion; and, that the plaintiff and appellee pay the costs of this appeal.


text:
    Josiah Norwood v. Thomas Devall.
    Article 3485 of the code provides, that if the plaintiif after, having made his demand, abandons or discontinues it, the interruption of prescription shall he considered as having never happened. Held: The expression abandoned, means an active abandonment, and not such an abandonment as may he implied from the absence or default of the litigant, at the time of the trial.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      C. Ratliff, for plaintiff.

      Elam,, for defendant.
   By the court:

Rost, J.

This is an action for wages „as overseer. The defendant pleaded the prescription of three years as a peremptory exception. The plea was sustained, and the plaintiff has appealed.

More than three years elapsed from the rendition of the service, to the institution of the suit, but the plaintiff alleges, that the prescription was interrupted by an action which he instituted against the defendant in 1848. The fact is not denied in behalf of the defendant, that the suit, after being continued from time to time, was finally dismissed in April, 1850, by the following order : “ This case having been regularly assigned for trial for to-day, the same was called for trial. The plaintiff being solemnly called to prosecute his suit, and failing to appear in person or by counsel, wherefore, on motion of D. D. Avery, Esq., of counsel for defendant, it is ordered, adjudged and decreed, that this suit be dismissed at the costs of plaintiff.” It is urged, that the default of the plaintiff, was an abandonment of the suit, and that the -interruption resulting from the institution of it, should be considered as having never happened.

Article 3485 of the code provides, that if the plaintiff, after having made his demand, abandons or discontinues it, the interruption of prescription shall be considered as having never happened.

We think, the expression abandoned, means an active- abandonment, and not such an abandonment as may be implied from the absence or default of the litigant, at the time of the trial. Article 2247 of the Napoleon Code, relied on by the appellee, does not appear, to us, to present an analogous case. Under the law of France, the peremption of a demand takes place when the plaintiff ceases to prosecute it during three years; and, art. 2247, expressly provides, that in cases of peremption, there shall be no interruption of prescription. This case acts upon facts ascertained of recordis express and definite as to time ; but if an abandonment may be implied under our law, from the default of the litigant, the question after what time and under what state of facts the presumption may be made, remain uncertain and open to litigation in every case. It seems contrary to principles to base presumptions, juris et de jure,' upon an ascertained fact and indefinite periods of time, and the practice would tend to introduce confusion and uncertainty in the administration of justice.

An express abandonment does not necessarily mean a discontinuance of the suit. Instead of the abandonment being the peremption of th8 French Code, we take it to be the desistment, a thing quite distinct from a discontinuance. A party plaintiff may be willing to desist from, or abandon his demand, and may enter into an agreement to that effect; but he may make the abandonment on conditions, not acceptable to the defendant, or the case may be such a? he cap-a not abandon Without the consent of his adversary. He must in all cases have that consent, before he can abandon an appeal. After the acceptance of the abandonment, the suit still subsists, and if the plaintiff refuses to discontinue it, it can only be dismissed by a judgment of the court upon satisfactory evidence that it has been abandoned, and that the conditions appended to the abandonment, if there are any, have been fulfilled by the party claiming the dismissal. Rogi'on on article 2247, Napoleon Code, and article 403 civil procedure.

We are of opinion, that the plea of prescription has not been sustained. It is therefore ordered, adjudged and decreed, that the judgment of tlie court below be reversed, and that the case be remanded for further proceedings according to law; the defendant to pay the costs of this appeal.


author: Eüstis, C. J.

text:
    A. G. Powers v. William Florance.
    A landlord cannot, in an action against his tenant, seize the property of third persons, on which no storage is due, although it may be found on the leased premises.
    The offer to return properly of a third person, illegally seized by a landlord in an action against his tenant, does not bar the ownerfrom an action for such damages as he may have sustained in consequence of the illegal seizure.
    APPEAL from the Fifth District Court of New Orleans. This case was tried by a jury, before Buchanan J.

      J. Ad. Rozier, for plaintiff.

      A. K. Josephs, for defendant.
   By the court.

Eüstis, C. J.

The plaintiff alleges, that in a certain suit instituted by Florance, the defendant, against Mrs. Araline Brooks, he caused to be seized under a writ of provisional seizure, a certain full length picture of General Taylor and his horse, the same being the work and property of the plaintiff, and caused it to be sold at public auction; that the picture did not belong to said Mrs. Brooks, and the defendant had no privilege thereon, &c. The value of the picture is estimated in the petition at one thousand dollars, and the damages sustained by the picture at three hundred dollars. The petition concludes with a prayer for judgment for thirteen hundred dollars.

The answer admits, that the picture was seized and sold as the property of Mrs. Brooks, who was the defendant’s tenant, it being found on the leased premises, and no claim having been made thereto by any one previous to the sale; and denies all responsibility for damages, which, it is alleged, were the consequences of the plaintiff’s own neglect.

The writ directed the seizure of the furniture and property found in the building known as the Armory Hall and auction mart, on Camp street. The return shows the seizure of a Jackson painting, with other movables, and bears date the 12th of May, 1849. The suit was instituted in November, 1849 The valuable time of no less than three juries has been consumed in this litigation. The first gave the plaintiff a verdict for $950, which was set aside. The second jury, a verdict of $1000 damages, which met the same fate. And the third trial, on the 21st of November, 1851, after the jury being kept all night in their room, resulted in a verdict for the defendant. From the judgment rendered on this verdict the plaintiff has appealed.

The last verdict, it is said, was the consequence of the erroneous charge of the judge; but, as the counsel for the plaintiff has requested this court to lermiBate this suit, it is not necessary to notice the charges, as asked by him, of the district judge, or take cognizance of any of the exceptions taken on the trial.

The rights of the lessor on the effects of the sub-lessee, contained in houses or stores leased, extend to those of persons who have loft them there on storage, for such sum as they may owe for storage. For this amount the lessor has not a mere privilege, but a right of pledge, and he may cause the effects on storage to be seized and sold to meet the extent of his right. Hennen’s Digest, verbo Privilege, iii, 1296 and 1297.

Thp day before the sale of the picture, the plaintiff filed a third opposition, and asked for the restoration of it, alleging that it had been left in the Hall as one of the decorations on the occasion of the 8th of January ball. This opposition was not served on either the defendant, Morance, or the sheriff, until after the sale. It was subsequently discontinued.

It does not appear that anything was d ue for the storage of the picture at the time of the seizure and sale. The picture was sold at the sheriff’s sale, and purchased by the defendant for fifty dollars.

On the 12th of March, 1851, the day of the last trial of the cause, the defendant having transported the picture to the courtroom, tendered it to the plaintiff, who accepted it in mitigation of damages. Under this state of facts it is urged, that the plaintiff is entitled to the damages he has sustained by the taking and retention of his property, at all events, to nominal damages, as the return of the picture does not cure the original conversion.

In December, 1850, the defendant offered to restore the picture to the plaintiff, but an objection was made to the legality of the mode in which the tender was made; and the plaintiff required the payment of his costs and the delivery of the picture to be made to him in the city, the picture then being with the defendant’s brother in the parish of Jefferson.

The rule of law insisted on by the counsel for the plaintiff, we think must govern the case. In forming an estimate of the damages we have been quite at a loss. If we had been satisfied that the acts of the defendant were done under a conscientious but mistaken view of his rights, that circumstance would have had great weight with us in diminishing the amount of damages. But the evidence has not so satisfied us. We do not think, however, that they ought to exceed the sum of two hundred dollars, and assess them at that amount.

It is therefore decreed, that the judgment of the district court be reversed, and that the plaintiff recover from the defendant the sum of two hundred dollars, with interest until paid, and costs in both courts.


author: Preston, J. Rost, J.

text:
    Carlos Garcia v. Felix Garcia and Dunlop Moncure & Company.
    Where the overseer does not take the ordinary course of engaging for a fixed salary, the court should reduce his compensation to the lowest sum, which the evidence will justify^ Overseers have a privilege on the crop which they have made for their wages, whether in the hands of the original or of third parties.

      The creditor who takes property by an act of antichresis, is bound, unless the contrary be agreed, to pay the taxes as well as the annual charges of the property, which has been given to him in pledge; he is bound to provide for the keeping and useful and necessary repairs or the pledged estate, and also for the maintenance of the slaves.
    The agent exceeded the amount which he was authorized to spend for the expenses of a plantation- Held: That third persons furnishing necessary supplies, or incurring expenses for the crop, had a privilege on it for payment, notwithstanding there was an antichresis recorded on the property in the parish where it was situated.
    It is of the essence of the contract of antichresis as of all contracts of pledge, that the creditors he put in actual possession of the property which it affects.
    APPEAL from the District Court of the parish of St. Charles, Duffel, J.

      Collins and St. Paul, and Bouney, for plaintiff.
    . Benjamin and Micou, for defendants.
   By the court:

Preston, J.

Felix Garcia executed an antichresis on two plantations, in favor of Messrs. Dunlop, Moncure Co., to pay large sums of money due on the same. He was left on the plantations as agent, but limited in his charges and expenses for the same, to $8000 per annnm, and bound to procure his supplies through Dunlop, Moncure Sf Co.

In the management of the plantations, large expenses have been incurred, probably exceeding the limit of $8000 per annum.

Garcia employed his brother, Carlos Garcia, as overseer, and on his credit supplies to a considerable amount have been furnished, and expenses incurred, part he has paid, and part remains unpaid.

Dunlop, Moncure 4" Co., being about to remove the crop, Carlos Garcia sequestered it, claiming a privilege upon it for his wages as overseer, and for the supplies and expenses furnished and incurred on his responsibility, the greater part of which he has paid.

His claims are resisted, on the gi-eund, that they are exorbitant, and are not privileges on the ci-op to which Dunlop, Móncure Sf Co. are entitled by the antichresis ; and, further, it is denied that some of the expenses have been incurred or paid.

No express agreement was made as to the wages of the plaintiff as overseer. He claims eighteen hundred dollars per annum as a quantum meruit. In eases where the overseer does not take the ordinary course of engaging for a fixed salary, we think courts should reduce the claim to the lowest sum, which the evidence will justify. We do not think the evidence in this case, authorizes an allowance of more than twelve hundred dollars per annnum, leaving four hundred dollars due to the plaintiff, eight hundred having been heretofore paid. The claim for the wages, is a privilege upon the crop. Code, art. 3184. And» as it is contended, that the defendants are third persons as to another overseei-, Bertrand, we have to observe, that the privilege follows the crop into the hands of third persons, as held by this court, in the case of Welsh v. Barrow, 3 Ann. 133.

We concur with the district court in his conclusion, that Dunlop, Moncwre <$• Co., did not take actual possession of the property, but that the same remained in the possession of F. Garcia, as owner and agent of the defendants. The limitation of his powers as agent, is not brought home with certainty to the plaintiff, or that he exceeded them. That he had a general knowledge that his brother had subjected the plantations and crops to an antichresis, we have no doubt. But then the code itself provides, “ That the creditor who holds the property by an act of antichresis, is bound, unless the contrary be agreed, to pay the taxes as well as the annual crops of the property which has been given to him in pledge, and also to provide for the keeping and useful and necessary repairs of the pledged estate, and also the maintenance of the slaves, saving to himself the right of levying on the fruits and revenues, all the expenses respecting such crops.” Article 3144. The claims allowed by the district court, are mostly embraced within these provisions. The defendants are bound, therefore, to pay them out of the proceeds of the crops.

We do not think the record of an act of antichresis in the parish, sufficient to exonerate them from the payment to third persons furnishing necessary supplies or incurring expenses for the crops, because their agent may have exceeded the amount to which they limited themselves by the antichresis. His actual possession of the plantations, the titles to which were also in him, justified third persons in contracting with him without consulting the records or his accounts with his creditors, to know exactly whether he was exceeding the limit as to supplies and expenses to which they had agreed.

There are items in plaintiff’s account, allowed and disallowed by the district court, with regard to which I think the evidence is doubtful. But neither party asked for a new trial, in the district court, and it is more probable that we should err in attempting to reform the minutiae of the account, than that the district judge has erred. On the whole, then, we will not attempt it.

The judgment of the district court is reversed as to the amount allowed Carlos Garcia, the plaintiff. It is further ordered and decreed, that said plaintiff recover from the said defendants the sum of two thousand eight hundred and seventy-five dollars and eighty-three cents, with legal interest from the judicial demand; and that in all other respects the judgment of the district court be affirmed, with costs in the district court. The plaintiff is condemned to pay the costs of the appeal.

Rost, J.

It is of the essence of the contract of antichresis, as of all contracts of pledge, that the creditor be put in actual possession of the property which it affects; and, as Dunlap, Moncure Sf Co. did not take actual possession in this case, but suffered the plantations to remain in possession of their debtor, as owner, and made a contract with him in relation to the supplies they were to furnish, I am of opinion, that they can set up no right under the antichresis, and that they stand in no better situation than their debtor towards the plaintiff.

I concur with Mr. Justice Preston, that the overseer’s wages and the plantation supplies should be paid out of the crops; and that, with the exception of the wages, which he properly reduces, the judgment of the district court aught to remain undisturbed.

Existís, C. J., concurred with Mr. Justice Rost.


text:
    C. H. Blanchard v. Heirs of Amy Blanchard.
    Amotion to dismiss an appeal, on the ground that a judgment ordering a partition in kind is au interlocutory decree, will not be maintained. By the Ccmrt: We understand this to be a contestation as to the manner of effecting a partition; and that, as such, it must be determined by the court, before proceeding further, under a provision of the code. Art. 1370. If the appellants bad gone on with the partition and executed the decree by drawing lots, they could no longer be relieved by it.
    It is not enough for the experts to state, generally, that in their opinion the land can be divided in kind ; they must point out the manner in which the division is to he made, show the value of the land and buildings, and their nature, and state all the facts upon which their opinion is based.
    from the District Court of the Parish of Rapides, Cushman, J.

      Elgee and Hyams, for plaintiff.

      Flint, for defendants.
   By the court:

Rost, J.

The plaintiff, who is one of the heirs of the late Amy Blanchard, sued for a partition of the lands and slaves belonging to her succession; and, on his motion, Matthew J. Jones and John ICefley were appointed experts to determine whether or not the property, belonging to the succession, could be divided in kind.

The experts reported as follows: “We report that the property of Mrs. Amy Blanchard can be divided in kind, without injury to the owners thereof.” The plaintiff and his brother, Edward O. Blanchard, opposed the homolo ■ gation of the report; and, on the trial of this opposition, a great deal of testimony was offered by them, for the purpose of showing that the property could not be divided in kind, without inconvenience and serious injury to all or some of the heirs. The district judge overruled the opposition, and homologated the report. The parties making the opposition have appealed.

A motion has been made for the dismissal of the appeal, on the ground, that the judgment ordering a partition in kind, is an interlocutory decree, from which no appeal lies at this stage of the proceeding.

We understand this to be a contestation on the manner of effecting a partition ; and that, as such, it must be determined by the court, before proceeding further, under a provision of the code. Art. 1270. If the appellants had gone on with the partition and executed the decree by drawing lots, they could no longer be relieved against it.

The evidence in this, as in all cases of the same description, consists of probable estimates, and is, as such, quite unsatisfactory. The law, in providing for the appointment of experts, has adopted the best means to give to those estimates the weight, which they have not when obtained from witnesses called up at the moment of the trial.

Correct information under the oath of the experts, of the value of the land, independently of the buildings, of the number, nature, and value of these buildings respectively, would much assist us in determining whether the situation of the buildings and improvements were an obstacle to a division in kind.

It is not enough for the experts to state generally, that, in their opinion, the land can be divided in kind. They must point out the manner in which the division is to be made, show the value of the land and buildings, and their nature, and state all the facts upon which their opinion is based. 2 N. S. 1.

The experts were examined as witnesses, but their testimony shows, that they have not made, together, an appraisement of the land and buildings, and that their examination of the premises has not been as minute as it should have been. It also leaves on our minds a doubt, whether they correctly understood the law under which they acted. They seem to say, that there would be a diminution of value upon the two outside lots, by reason of all the improvements being upon the middle lot, but that it might be compensated in the partition of the slaves and teams. If there was a loss, it was not susceptible of compensation.

The report of the experts in relation to the facts sworn to by the witnesses, would be the best evidence the nature of the case admits of, and for the purpose of obtaining that evidence, we have come to the conclusion to remand the case.

Another consideration has not been without weight with us. The plaintiff is the tutor of the minor heirs. The under-tutor, who was to represent them in this litigation, tendered his resignation to the judge before the citation was served upon him, and he does not appear to have taken any part in it. Judgment was rendered against him by default, and the proceedings went on for twelve months before the judge acted on his application and refused to receive his resignation. On the remanding of the case, he will, no doubt, take such steps as may be necessary to protect the rights of the minors.

It is ordered, that the judgment in this case be reversed; the report of the experts set aside, and the case remanded for further proceedings, with directions to the district judge, to order another report by the experts in conformity with the views expressed in this opinion. It is further ordered, that the appellees pay the costs of this appeal.


author: By the court:

text:
    State of Louisiana v. Samuel White and Isaac Clift.
    In cases of felony, where several are present, aiding and abetting, they may he joined with the principal in the first degree, and charged in the indictment, either as actual perpetrators, or as aiders and abettors.
    When the principal in the second degree is charged as an aider or abettor, it is not necessary to set forth in the indictment the means or manner by which he became thus guilty, but merely to describe him generally as being present, aiding and abetting at the felony and murder, (as the case may be,) committed in manner and form aforesaid.
    If a person be present, aiding and abetting, be cannot be indicted as an accessory.
    Three requisites must combine to make an aider and abettor a principal: he must be present, aiding and assisting, with a felonious intention, to the felony.
    This court cannot, upon an appeal, re-examine the decision of a district judge upon a question of fact, such as whether due diligence has been used to procure the attendance of a witness.
    Where an inferior court, in a capital case, had refused a continuance, though the defendant offered affidavits, setting forth the fact of the materiality of absent witnesses, and of due diligence in procuring them, there was no error, the court below believing the application to be simply an artifice to obtain delay.
    When some of the jurors on the list with which defendant is served, are absent or excused, and the regular panel is exhausted, talismen must be summoned.
    APPEAL from the District Court of the Parish of Natchitoches. This case was tried by a jury before Bullard, J.

      Elam and Hamilton, for prisoner.

      Welch, District Attorney, for the State.
   By the court:

The defendant Isaac Clift was indicted in the second count of an indictment against him'and Samuel White, for robbery, in the following words: “And the jurors aforesaid, upon their oaths aforesaid, do further present, that Isaac Clift, late of the parish aforesaid, laborer, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the district and State aforesaid, feloniously was present, aiding, abetting and assisting the said Samuel White, the felony and robbery aforesaid to do and commit, contrary to the form of the statute of the State of Louisiana, in such case made and provided,” &c. Upon this indictment the defendant was found guilty by a jury, in manner and form as charged in the bill of indictment, and the district judge sentenced him to ten years’ imprisonment in the State penitentiary. From this judgment an appeal has been taken to this court upon various grounds, as set forth in bills of exceptions, motions in arrest of judgment, and for a new trial.

The defendant based his motion in arrest of judgment, upon the ground that the before recited count in the indictment was defective, because it did not state in general terms, that he, the defendant, was guilty of the crime of robbery, but only charged him as an aider and abettor to the other defendant, Samuel White, and that there is no statute in this State to punish aiders and abettors to the crime of robbery. There is a statute of 1818, p. 168. sec. 8, punishing all accessories to any crime, both before and after the fact. See Revised Statutes, p. 206. But that is no matter of importance in the present inquiry. It is not pretended that there is any defect in the first count of the indictment for robbery committed by Samuel White. In cases of felony, where several are present aiding and abetting, they may be joined with the principal in the first degree, and charged in the indictment, either as actual perpetrators, or as aiders and abettors. Where the principal in the second degree is charged as an aider or abettor, it is not necessary to set forth in the indictment the means or manner by which be became thus guilty, but merely to describe hitn generally as being present, aiding and abetting at the felony and murder, (as the case may be) committed in manner and form aforesaid If a person be present, and aiding and abetting, he cannot be indicted as an accessory. Chitfy’s Criminal Law, 262-269. Three requisites must combine to make an aider and abettor a principal. He must be present, aiding and assisting, with a felonious intention, to the felony. Ib. 256. The defendant, Isaac Clift, has then been indicted, according to the most approved forms and authorities, as a principal, being present, aiding and abetting, with a felonious intention. He is then brought under the provisions of the act of 1805, p, 426, sec. 4, against robbery, and subjected to imprisonment at hard labor, not less than seven, nor more than fourteen years. Revised Statutes, p. 188.

The next objection urged by defendant, appears in his bill of exceptions to the decision of the district judge refusing him a continuance. The reasons given by the district judge, satisfy us that a continuance was properly refused. We have heretofore decided, that this court could not, upon an appeal, re-examine the decision of a district judge upon a question of fact, suchas, whether due diligence has been used to procure the attendance of a witness. State v. Brette, 6 Ann. 653. The district judge states, that in his opinion, there were suspicious circumstances (which he relates) going to show, that the application was made for delay. It has been decided, that where an inferior court, in a capital case, had refused a continuance, though the defendant offered affidavits setting forth the fact of the materiality of absent witnesses, and of due diligence in procuring them, there was no error, the court below believing the application to be simply an artifice to obtain delay. Wharton’s American Criminal Law, 597, 598.

The next objection urged on the part of the defendant, is contained in another bill of exceptions to the opinion of the district judge refusing to sustain his challenge to the jurors presented to him, because all of the jurors comprising the list that had been served on him were not present, some of them having been excused from attendance by the court. To which the judge says, in the bill of exceptions, that the jurors had either been excused for good and legal cause, or were absent without leave of the court. Under these circumstances, when no more jurors could be obtained from the regular panel or list of jurors that had been served on tho defendant, the court ordered talismen to be summoned. There was no error in this.

Next and last, the defendant moves for a new trial, which was overrulod.

This court has decided, that the exercise of the discretion of the district judge in the refusal of a new trial in a criminal case, cannot be revised upon a writ of error. State v. Gormer, 6 Ann. 311.

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


author: Slideli,, J.

text:
    J. D. Christian v. Michael Welch. R. H. Christian called in Warranty.
    A minor who is a party to a fraud, stands on no better footing than one of foil age.
    The court will not affirm a judgment in favor of a plaintiff whose case is tainted with fraud.
    from the District Court of the Parish of Rapides, Cushman. J.

      Ogden and Scott, for Christian.

      Hyams, for defendant.
   By the court:

Slideli,, J.

The transcript in this cause reeks with evidence of gross simulations, in fraud of creditors, on the part of the plaintiff, the warrantor, and one of the plaintiff’s witnesses. Moreover, portions of the testimony have on their face a marked character of improbability; and the general aspect of the cause, upon a careful consideration, impresses us so strongly against the pretensions of R. H. Christian, that we are unwilling to affirm the judgment in his favor. We think there is strong reason to question whether he ever had any real or fail-interest in the property in controversy. Where there is fraud, the minors stands on no better footing than one of full age. ' -

The plaintiff acquiesced in the judgment by not appealing, and by asking no amendment here.

It is therefore decreed, that the judgment, so far as it rejects the claim of the plaintiff, J. H. Christian, be affirmed, and that the said plaintiff pay the costs of the principal action in the court below, and one-half of the costs of this appeal. It is further decreed, that upon the claim of said Reuben H. Christian, there be judgment in favor of the defendant, George W. LooJc, and that the said Reuben H. Christian pay one-half of the costs of the appeal, and the costs occasioned by the prosecution of his claim in the court below.


author: Slidell, J.

text:
    Ford v. Tilden.
    A judgment was obtained by Brown against Griffin, Cotton, R. A. Hunter, Ford and Solibellas. It was registered thus: “John Brown v. Spencer Griffin et at, Sixth District Court,” &c. Held: Such a registry does not operate as a mortgage on Hunter's property, because on the face of the inscription, Hunter's name does not appear.
    If the inscription, which is in the words of the judgment, is on its face insufficient to show the name of the debtor against whom the judgment was rendered, and whose property it was desired to reach, that which the law intended should inform, leaves the reader in ignorance.
    The index to the recorder's registry, is no part of the registry, and although Hunter's name appears in the index with areference to the particular inscription in question, yetthe error in the registry itself, is not remedied thereby.
    APPEAL from the District Court of the Parish of Papides, Cushman, J.
    Flint, for plaintiff.
    Hyams, for Tilden.
    O. N. Ogden, for.R. A. Hunter, warrantor.

      Kelly and Isaacs, for Mrs. S* J’. Hunter, warrantor.
   By the court:

Slidell, J.

This is an hypothecary action brought against Tilden as third possessor. He bought the property at a sheriff’s sale made in January, 1849, upon an' execution against Robert A■ Hunter. The plaintiff bases his action upon a judgment obtained in/1840, at the suit of Brown against Griffin as maker, and Cotton, R. A. Hunter, Ford and Solibellas, as endorsers of a promissory note ; and which judgment, as he alleges, was duly recorded in 1840, and reinscribed in November, 1849.

There are various matters set up in defence, but the only question which we deem it necessary to examine is the sufficiency of the registry.

The judgment was recorded at page 138, in the judgment book kept by the parish judge, in these words : “ John Brown v. Spencer Griffin et al., Sixth District Court, parish of Rapides. May term 1840.”

“ In this case, by reason of the law and the evidence, it is ordered, adjudged and decreed, that the plaintiff recover of the defendants in solido, the sum of two thousand one hundred and sixty-two dollars and seventy-six cents, with ten per cent per annum interest thereon, from the 8th February, 1838, and four dollars costs of protest, and the costs of this suit to be taxed. Done in open court, this 23d day of May, 1840. (Signed) George R. King, District Judge, 5th Judicial District.”

At foot of this entry, in the judgment book, is the following: “A true record, this 11th June, A. D., 1840. George R. Waters, Parish Judge.”

In the case of Adle v. Anty, 5 Ann. 633, we held, that the judicial mortgage exists, and has vitality only by inscription. If there be no inscription there is no judicial mortgage. Has this judgment been inscribed so as to operate a judicial mortgage upon the property then owned by Hunter? We think it has not, because on the face of the inscription, Hunter's name does not appear. Spencer Griffin is the only defendant named in the inscription. Who the other defendants were, does not thereby appear.

It is true, that a person desiring to know who were the other defendants, could have ascertained it, by going to the clerk’s office of the district court; and, if he had done so, he would there have found their names, and that Hunter was one of them. But this the public were not bound to do. Jartroux v. Dupeire, 2 Ann. 608. Taylor v. Hotchkiss, 2 Ann. 917. Hyde v. Bennett, 2 Ann. 799. The inscription of the judgment should have contained on its face, information, that Hunter was one of the defendants, in order to create a judicial mortgage upon his property.

It is said, that this view goes beyond the letter of the law, which directs, that to obtain an inscription of a public act or judgment, the creditor, either in person or by an agent, shall present an authentic copy of the act or judgment to be recorded, to the register of mortgages of the place where the inscription is to be made. C. C. 3330. The plaintiff argues, that he has done this, that he has had the judgment inscribed verbatim, and has thus fulfilled what the law required. The article must receive a reasonable construction. If the judgment be on its face insufficient to show the name of the debtor against whom it was rendered, and whose pi'operty it is desired to reach, that which the law intended should inform, leaves the reader in ignorance.

It is said, that there was an index to this book alphabetically arranged, in which index, under the letter H, is found this entry, R. A. Hunter, administrator J. Brown, p. 138; and that by connecting this entry with the inscription, the fact that Hunter was one of the defendants, would be ascertained. But this assumes that the index is part of the record, whereas we understand it to be an assistant in searching the record book, and not the record book itself. We are not aware that we have ever sustained an inscription, which was notin itself substantially complete; and we fear, that if we should depart from a reasonable exactness in such matters, and permit defective inscriptions to be eked out by evidence aliunde, the salutary Jaw of registry would soon lapse into uncertainty and confusion.

Judgment affirmed, with costs.


author: Dumbak, J.

text:
    Executors of B. Shields v. Zachariah Richardson.
    Suit on a physician's account. Defendent excepted to the petition on the ground that there was no bill of particulars. The exception was overruled. Held.- That the court erred.
    Where interrogatories were put to defendant, and from his answers it may he inferred that something is due, butthe amount does not appear, and no hill of particulars was filed, as to which the defendant was specifically interrogated, and no explanation offered showing why the bill of particulars was not furnished, the courtis without the means of determining how much is due plaintiff, and therefore can give no judgment for him.
    APPEAL from the District Court of the Parish of Rapides, Cuslman, J.

      M. Ryan, for plaintiffs.

      Hyams, for defendant.
   By the court:

Dumbak, J.

This is a suit brought on a medical account, the principal portion of which is one item of three hundred and twenty-seven dollars, as per account rendered, the only other item being a charge of six dollars.

To this demand the defendant pleaded, by way of exception, that no bill of particulars had been filed with the petition of plaintiffs; that he, the defendant, had a right to demand an account, in Retail, of the charges against him, and ended with praying that he might not be compelled to answer until a bill of particulars should be filed. This exception was overruled by the district judge. We think there was error in this ruling. Ledoux v. Gozo, 2 Ann. 395.

The plaintiffs then proceeded to trial upon the answers of the defendant to interrogatories,' without any further evidence. There was judgment against him, and he has appealed.

The defendant, in answer to the interrogatories, says : “ That he thinks the account is not correct; that he does not know if he owes anything or not, but that he thinks he has paid him, Dr. Shields, all that his services were worth.” The plaintiffs’ counsel however contends, in argument, that if these answers tend to exonexúte the defendant, that there is another portion of his answers which fix his liability. The defendant, after stating that Dr. Shields had presented his account to him in the spring of 1848, for services rendered up to June, 1847, says: “That he told him there were eiTors in it which he must coi'rect; he, Dr. Shields, did correct one item. He told him there wex-e further and greater errors, which he must correct before he, the defendant, would pay the account. Defendant then thought that the several amounts which he had paid him up to that time, were fully equal to the value of his services.”

The counsel of plaintiffs says, that it is plain from the above answei's that something is due to his clients, but that something is mox-e than we can divine. Of this it appeal's to us the plaintiffs have no right to complain. If they had filed a bill of particulars it would have enabled the defendant, in all probability, to point out, in the account, the errors complained of, and in that way alone could the balance, if any, be ascertained. No excuse has been given, such as the loss of the books of the deceased, or any other good reason for failing to file a bill of particulars. This view of the case makes it unnecessary to decide upon the plea of prescription.

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


text:
    R. Winfield v. Francis Little.
    Redhibitory suit. Plaintiff was aware of the nature of the disease three weeks after the sale, but no physician was sent for until the day preceding the death of the slave. Held: Plaintiff was not entitled to recover.
    from the District Court of the Parish of Rapides, Cushman, J.

      M. Ryan, for plaintiff.

      Hyams, for defendant.
   By the court:

Rost, J.

The plaintiff seeks to recover from the defendant the price of a female slave, who died about nine months after he had purchased her from said defendant.

The ground of the action is, that before and at the time of the sale, the slave was affected with pulmonary consumption, of which disease she died. There was judgment in favor of the defendant, from which the plaintiff prosecutes the present appeal.

A careful perusal of the record has satisfied us that the judgment must be affirmed.

Physicians introduced by the plaintiff as witnesses say, that the disease, as described in the petition, requires medical treatment from its first appearance; that prompt medical attention ought to be given, and that no recovery is to be expected unless the patient receives medical treatment regularly.

Niue months elapsed between the sale and the death of the slave. The plaintiff has stated that he became aware of the nature of her disease three weeks after the sale, and yet no physician was sent for until the day which preceded her death. Under the settled jurisprudence of this court, this omission would be sufficient to defeat the plaintiff’s action, even if the existence of the disease, at the time of sale, had been shown, which is not the case. The symptoms described by the witnesses being those which attend colds as well as diseases of the lungs. Hiper v. Nuttall, 1 R. R. 46. Lyons v. Kenner, 2 R. R. 53. Dupre v. Demaret, 5 Ann. 591. Dupre v. Prescott, 5 Ann. 592.

The judgment is affirmed, with costs.


author: Siidem., J.

text:
    Cane v. Reynolds.
    The acknowledgment of a debt, in order to interrupt prescription, must be specific. Loose and vague conversations will not operate an interruption or renunciation.
    APPEAL from the District Court of the Parish of Caddo, Bullard, J.

      Terrell and Crain, for plaintiff.

      Roysdon and Spofford, for defendant.
   By the court:

Siidem., J.

This suit is brought upon several notes and due bills, all of which matured more than five years before suit brought.

The plaintiff, in argument, seems to concede, that a portion of these claims has been paid, but contends that she is entitled to a judgment for the balance. The defendant urges prescription.

The case turns upon a question of fact, namely, whether the defendant, by acknowledging these claims, has interrupted or renounced prescription.

The jury does not appear to have been satisfied with the testimony adduced on this subject. Some of the witnesses speak of conversations, which we find too loose and vague to operate an interruption or renunciation. See Conway v. Williams, 10 L. R. 568.

There is one witness whose testimony is more positive and specific; but it seems to have been disregarded by the jury.

The district judge refused to grant a new trial: from which we infer, that he also was not satisfied with the testimony.

We are not satisfied that the verdict has done injustice.

Judgment affirmed, with costs.


author: Slibeul, Ú.

text:
    Dwight et al. v. Webster & Co. John Baker, Garnishee.
    A garnishee who is required to answer interrogatories in open court, is entitled to a notice of the order appointing a particular day when his answers are to be made.
    The doctrine in Spears v. Nugent, 2 Ann. 12, applicable to an ordinary party to a suit, was applied in this case to a garnishee called on to answer in open court.
    APPEAL from the District Court of thejParishof Caddo, Bullard, J.

      Crain, for plaintiffs.

      Roysdon and Spofford, for defendants.

      Land and Cook, for garnishee.
   By the court:

Slibeul, Ú.

The plaintiffs having obtained judgment againstthe defendants, issued a fieri facias, and also filed a petition to make Baker a garnishee, under the Act of 1839. The petition contained interrogatories, and the plaintiffs prayed that the garnishee might be ruled to answer them in open court. No order fixing a day at which the garnisee should answer, was obtained at the time. A citation was served on the garnishee, requiring him to answer the petition in ten days after service. This was served on the 21st February, 1851, apparently, during vacation. At the April term following, an order was obtained by the plaintiffs, that the garnishee answer the interrogatories on a day which is left in blank upon the minutes of the court; but which, it is said, was specified in a memorandum kept by the district judge. Waiving the discussion of the omission on the minutes, which, however, it seems to us, are to speak for themselves, and assuming that an order was made specifying the day on which the garnishee should appear in open court to answer the interrogatories, £till, we are of opinion, that the garnishee was entitled to notice of the order. In Spears v. Nugent, 2 Ann. 3 2, the court said, when a party requires the answers of his adversary to interrogatories to be given in open court, a day must be appointed to that effect by the judge, by which is understood a day fixed, and of that day the party interrogated must be notified. It is true, the case was of an ordinary party, but the reasons of the rule applies to a garnishee.

In Parmely v. Bradbury, it was held, that the law does not require an order of court to the garnishee, directing him to answer the interrogatories ; the service of a copy of the petition, containing interrogatories and citation, are sufficient warning for him to answer. 13 L. R. 353. But if the creditor chooses to depart from the ordinary course, and requires the garnishee to answer in open court, au order fixing the day and notice of it, seems to us necesssary. If, in this case, the garnishee had filed his answers in the ordinary mode, the plaintiffs might have elected to disregard them, and compel him to answer again in open court.

It is therefore decreed, that the judgment be reversed, and that this case be remanded for further proceedings according to law, with directions to the garnishee, without further notice, to appear in the district court, in open court, on the third Monday of April next, there to answer the interrogatories propounded to him by the plaintiffs, in default whereof, the interrogatories may be. taken as confessed. And it is further decreed, that the plaintiffs pay the costs of the appeal.


text:
    Malinda L. Sears, Administratrix, v. Boyd Bearsh et al.
    This suit w as-brought against the sureties upon an appeal bond. Per Curiam: The appeal was dismissed because there was no legal order of appeal, which, in legal intendment, is equivalent to no order at all; and without such an order, the clerk had no authority to take the bond. The maxim, that in whatever manner a man binds himself, he shall remain bound, is not applicable to a case of this kind.
    The liability of sureties upon judicial bonds, is fixed by the law which authorizes the taking of the bonds.
    When the inducement for signing an appeal bond is the supposed existence of an order of appeal, which does not' exist, the party signing will be relieved on the ground of error.
    APPEAL from the District Court of the Parish of Morehouse, Sharp, J.

      McGuire and Ray, for plaintiff.

      Baker and Robertson, for defendants.
   By the court:

Rost, J.

The plaintiff sues the sureties of John B. Wilson, on an appeal bond, given by him in a suit of the said plaintiff against Wilson and others. The defence is, that the consideration of the bond has failed; that there never was any legal order of court for an appeal of any kind; and if any bond was given, it was null and void for the want of such an order.

There was judgment in favor of the only defendant against whom the case was tried, and the plaintiff has appealed.

When the case in which the bond was given came before the Supreme Court, the plaintiff, by her counsel, moved for the dismissal of the appeal, on the ground that it did not appear on the record, that the appeal was granted on the motion of the appellant in open court, as required by the statute in cases where the appeal is not taken by petition and citation served on the appellee. The motion prevailed, and the appeal was dismissed. 4 Ann. 525.

The appeal was dismissed, because there was no legal order of appeal, which, in legal intendment, is equivalent to no order at all. And without such an order, the clerk had no authority to take the bond. The maxim, that “ in whatever manner a man binds himself, he shall remain bound,” is not applicable to a case of this kind. It has been repeatedly held, that the liability of sureties on judicial bonds is fixed by the law which authorizes the taking of the bonds ; and, as no law authorized the taking of this bond, without a previous order of appeal being obtained, it must remainin opperative. Slocomb v. Robert, 16 L. R. 174. Welsh v. Thorne, Ib. 196. Boswell v. Lynhart, 2 L. R. 398. Bach v. Morrison, 4 Ann. 373.

It ,is true, moreover, as argued by the defendant’s counsel, that the inducement of the defendant for signing the bond, was the supposed existence of an order of appeal, and that the error under which he labored would alone entitle him to relief. C. C. 1890.

It is said, that under the view which we take of the law, debtors, by obtaining informal orders of appeal, may. delay the pursuit of their creditors without endangering their sureties. The order of appeal is under the direction of the judge, and it is not to be presumed that he will connive with litigants to frustrate the ends of justice.

The judgment is affirmed, with costs.


text:
    Gandy v. Taintor and Wife.
    The Supreme Court seldom interferes with verdicts on questions of fact.
    APPEAL from the District Court of the Parish of Caddo, Bullard, J.

      Terrell and Hodge, for plaintiff.

      Crain, for defendants.
   By the court:

Rost, J.

This case is not in a condition to be finally closed.

We seldom interfere with verdicts on questions of fact, but in the present instance we have no means of ascertaining whether the jury acted upon the facts of the case, and came to the conclusion that the defendants had not taken proper care of the slave Sarah, during her last illness; or whether they considered that taking the slave with them, on a visit to a friends house, eight miles from the place where she was hired, was such a breach of their contract with the plaintiff, as rendered the husband liable, under all circumstances, for the loss of the slave, which occurred during that visit.

On the first hypothesis, the evidence of culpable neglect is far from being satisfactory. On the second the finding of the jury is manifestly erroneous. There was no agreement that the defendants should never take the slave out of the corporate limits of the town of Shreveport; and as she was hired to nurse their infant child, they had the right to put her to the ordinary uses of a nurse, and to take her with them in their occasional visits to their neighbors.

The district judge having refused to grant a new trial, we will, in deference to his opinion, remand the case.

It is ordered that the judgment in this case be reversed, and the case remanded for further proceedings, according to law; the plaintiff and appellee paying the costs of this appeal.


text:
    State of Louisiana v. Jordan Lewis.
    'The acfc of March 11th, 1837, which points out the manner of proceeding against the parties to bail bonds in criminal cases, assumes that the bond is authentic, and thereby dispenses with proof of its execution.
    The act itself directs judgment to be entered against the parties to such bonds in solido.

    Where tbe sheriff’s certificate is silent as to the date when he received and accepted the bail bond given under this act, it will be presumed that such acceptance was after he had been authorized to do so by the committing magistrate.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Morrison, District Attorney, for the State.

      Roysdon and Spofford, and Buckner, for defendant.
   By the court:

Rost, J.

The appellants became the sureties of Jordan Lewis, on a baii bond given by him, to answer for a charge of larceny. He failed to appear in court when called, and judgment was rendered against him and his sureties in solido, on motion of the attorney representing the State, as authorized by the act pf 1837. The sureties have appealed, and allege the following grounds of error: 1st. That there is no legal evidence of the excution of the bond. 2d. That the bond is a joint obligation, and not an obligation in solido. 3d. That the bond was taken by the sheriff without previous authority from the committing magistrate, or any other competent officer, and is therefore null and void.

The two first grounds of error may be answered by a simple reference to the act of 1837, under which the bond was taken and the proceedings had in the court beiow. It provides that, on the failure of the sureties to produce, instante!', in open court, the person of the defendant, when called upon to do so, on motion of the attorney representing the State, the court shall forthwith enter up judgment against the principal and securities in solido, for the full amount of the bond.”

This law evidently assumes that the bond is authentic, and orders judgment to be entered upon it forthwith. The authenticity of judicial bonds, after they are filed in court, had been previously recognized by the Supreme Court. See 10 M. F. 180 and 197. The bond proved itself, and the law, under which it was taken, fixes the nature of the liability of the sureties towards the State, by ordering judgment to be entered against them in solido. Slocmob v. Robert, 6 L. F. 174.

On the 17th October, the committing magistrate authorized the sheriff to bail the accused, who was then in custody, upon his giving bond and security in the sum of $350. And on the same day the sheriff certifies that the accused, having given bond, was released from custody. The bond taken bears date the 14th October, 1851. There is, on the back of it, a certificate of the sheriff that the bond had been accepted and received by him. This is immediately followed by the approval of the bond, signed by the committing magistrate, which bears date the 17th October, 1851. The certificate of the sheriff is without date, and we are bound to presume that he received and accepted the bond after he had been authorized by the committing magistrate to do so. In accordance with that presumption, it is shown that he did not release the accused from custody till after that time.

We are of opinion, that the judgment must remain undisfi ordered that the judgment be affirmed.


author: Dunbar, J.

text:
    Mabury Wafer v. Alexander Wafer et al.
    Tbe Act of tbe 18th of March, 3850, does not require that tbe oath to authorize’^'^cl^^^K^ the parish of Claiborne to issue an execution upon a judgment, destroyed by tbe burning of the coxirt house of Claiborne, should be made by the owner of such judgment, and by no other person. It requires a statement, under oath, specifying the exact amount of such judgment or the balance due thereon, without saying by whom tbe oatb shall be made.
    The attorney who has obtained the judgment, and who has kept a memorandum of it, is a proper person to make the affidavit.
    Errors and irregularities in the proceedings and sale by a sheriff, under execution, are cured by the giving of a twelve months’ bond.
    The proviso in the Act of the 18th of March. 1850, “That the person against whom such execution may be issued, shall have the right to enjoin the same, upon making oath that any material statement in the affidavit of the person applying for the execution is not correct j and if such injunction be set aside, the person enjoining shall not be liable to any damages except the costs of said injunction,” is not applicable to an execution upon a twelve months' bond.

      from the District Court of the Parish of Claiborne, Bullard, J.

      Jones, for plaintiff.

      McGuire and Bay, for defendants.
   By the court:

Dunbar, J.

This is an injunction, sued out by the plaintiff, to stay an execution issued upon a twelve months’ bond, given by the plaintiff, Mabury Wafer and his sureties, in the case of Alexander Wafer v. Mabury Wafer and Sicily Wafer. It appears, that on the 29th of May, 1850,.John Ray, in the capacity of attorney for Alexander Wafer, made an affidavit in conformity with an Act of the Legislature oí' Louisiana, of the 18th March, 1850, in which he set forth that Alexander Wafer, at the fall term of the district court of the parish of Claiborne, had obtained a judgment against Mabury Wafer and Sicily Wafer jointly, as the universal heirs and legatees of Thomas Wafer, deceased, for the sum of $751 24, with interest, &c.; that the said judgment, above described, had been destroyed by the burning of the court house of the parish of Claiborne, in November, 1849, and that he made the affidavit from his recollection of the facts and from memorandums taken by him at the time of the trial of the case. Upon this affidavit, under the provisions of the aforesaid Act of the 18th March, 1850, the clerk of the district court issued an execution on said judgment against Mabury Wafer and Sicily Wafer, under which the sheriff, as is shown by his return, proceeded by levying the same on the plantation on which Mabury Wafer resided, who waived notice of levy and the notice to appoint appraisers. At the first exposure, the property seized not bringing two-thirds of its appraised value, the sheriff proceeded to advertise and sell the same at twelve months’ credit, when Mabury Wafer became the purchaser, executing the twelve months’ bond upon which the execution now enjoined has been issued.

The plaintiff alleges in his petition, that there are material errors in the affidavit of John Ray, upon which execution was issued against him; that even under the affidavit itself he is only bound for one-half of the aforesaid judgment, and that the said John Ray, as the attorney at law of Alexander Wafer, was not authorized by the Act of 1850 to make the oath required by that statute, but that it should have been made by Alexander Wafer. The plaintiff further alleges that he gave in error the aforesaid twelve months’ bond.

We have examined the Act of 1850, and find that it does not require that the oath to authorize the clerk of the parish of Claiborne to issue an execution upon a judgment destroyed by the burning of the courthouse of Claiborne, should be made by the owner of such judgment and by no other person. On the contrary, it requires “ a statement, under oath, specifying the exact amount of such judgment or the balance due thereon,” without saying by whom the oath shall be made. In the present instance, we consider that John Ray, the attorney who obtained the judgment and who had kept a memorandum of it, was the most proper person to have made the affidavit.

With regard to the errors and irregularities complained of by the plaintiff, in the proceedings and sale by the sheriff, under the execution issued upon the destroyed judgment, we are of opinion, if there were any, they were all cured by his giving the twelve months’ bond. Jones v. Frelsen, 9 R. R. 185. Coons, curator v. Graham, curator, 12 R. R. 209. There is, moreover, evidence in the record, that in the partition of Thomas Wafer’s estate, it was agreed between Mabury Wafer and Sicily Wafer,.his heirs, to leave $1650 in the hands of Mabury Wafer to pay the debts of the estate of Thomas Wafer, for one of which debts the destroyed judgment was rendered. From which it may well be inferred that Mabury Wafer intended, in the giving of the twelve months’ bond, to settle, in full, the whole amount of the judgment against himself and Sicily Wafer. There is nothing in the record to satisfy us that there was any error in the affidavit of John Ray upon which the execution issued ; but the Act of 1850 provides “ that the person against whom such execution may be issued, shall have the right to enjoin the same upon making oath that any material statement in the affidavit of the person applying for the execution is not correct; and if said injunction be set aside, the person so enjoining shall not be liable to any damages, except the cost of such injunction.” We are of opinion that this proviso is not applicable to the execution on the twelve months’ bond.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed; the appellant paying the costs of this appeal.


author: Dotibab, J.

text:
    James W. Quarles v. D. L. Evans.
    Previous to the act of March 10th, 1852, our laws expressly prohibited every person from practising the profession of a physician or apothecary, or that of midwifery, without a special license granted by the medical board, or a diploma from the University of Lou. isiana, and imposed a fine upon all persons so offending, for the benefit of the Charity Hospital.
    The act of March 10th, 1852, authorized any person with a diploma from a chartered medical college in the United States, to practice medicine without license, and to charge, demand, and receive fees for visits, &c., and repealed the prohibiting and penal laws not consistent therewith.
    The repeal of a penal statute prevents a penalty or fine from being enforced, but does not render a contract made in defiance of law valid, nor does it give any right of recovery on such a contract.
    The unrepcaled proviso of sec. 4lh of the act of the 16th March, 1816, only relieves the person coming within it, from the fine or penalty declared in the act.
    APPEAL from the District Court of the Parish of Claiborne, Bullard, J.

      Roysdon and Spojford, for plaintiff.
    The plaintiff, a physician, sued the defendant, as universal legatee of Mrs. Prothro, deceased, for medical attentions and services rendered her at the instance of defendant. Defendant pleaded, that plaintiff was not duly licensed by a medical board of the State, according to the statutes, and therefore could not recover for services rendered as a physician, in contravention of law.
    Plaintiff, in an amended petition, also claimed compensation for medicines furnished, and attentions bestowed in nursing the deceased during her last illness, which was protracted and incurable. To the amended petition, defendant pleaded the prescription of one year. Plaintiff had a verdict and judgment, and the defendant appealed, his motion for a new trial having been overruled.
    The plaintiff and appellee respectfully submits the following points and authorities: 1. Pending the suit, and before trial, the act of March 10th, 1852, was passed, authorizing any person with a diploma from a chartered medical college in the United States, to practise medicine without further license, and to charge, demand, and receive the usual fees for visits, medicines, prescriptions and medical services, and repealing the old prohibitory and penal laws, which were not consistent therewith. The disability to charge and collect fees was, in substance and effect, but a part of the penalty of the old laws. The repeal of a penal statute, pending a litigation in which its penalties are invoked, takes from the courts the power of enforcing those penalties. The State v. Johnson, 12 L. R. 547. “ The reason is, that a legislative pardon is presumed to have been intended.” Formerly, the practice of medicine without the license of a medical board, was maturn prohibitum merely; a party receiving the benefit of services rendered in contravention of the laws then in force, was still under a natural obligation to pay for them. C. C. art. 1751, No. 1. The repeal of the prohibitory laws wipes every trace of a misdemeanor from this transaction, and transmutes the natural into a civil obligation. No reason can be given for a different doctrine, unless it be the necessity of punishing an offender, and deterring others from violating any prohibitory law, by enforcing a penal statute even after its repeal, so far as to release a party from a contract made in violation of it before the repeal. This argument would be still more forcible in a criminal case, and would sustain an indictment under a penal statute after its repeal, for an offence against it committed before. But no court of law would listen to such a doctrine. The judge a quo charged the jury, that his impression was, that this view of the law was correct; to which charge the defendant took his bill of exceptions. The charge was not sufficiently positive to mislead the jury, even if the judge’s impressions were erroneous; and if they were, there are other grounds on which the verdict must be supported.
    2. The plaintiff committed no violation, even of the repealed laws. The act of March 16th, 1816, (Bul. and Cur. p. 671,.) in its title and through all its sections, uses the terms, “practise physic, or the profession of an apothecary.” The act of 27th March, 1840, in sections 2 and 5 (Acts 1840, p. 99,) changes these terms in a very significant manner. This act imposes a penalty, not, like the former, upon persons who shall “practice physic, or the profession of an apothecary,” but upon those who shall “practice the profession of a physician, an apothecary, or that of midwifery.” Why this change of phraseology? It was manifestly the design of the Legislature in the latter enactment, to punish him only, who, without a license, followed the profession of a physician as a pontinuous pursuit, and held himself out to the world as such, not to visit with its penalties him who turned aside from another calling to prescribe for a single family, who, as in this instance, would have his services. It is in evidence that the plaintiff, at the time he rendered these services, did not follow the calling of a physician, but that of a planter, and that he only yielded to the urgent request of the present defendant, to attend his deceased connection in her illness, after having consulted him as an attorney at law, about the propriety of doing so without a license. Furthermore, it is submitted, that the plaintiff comes within the unrepealed proviso of sec. 4th of the act, 16th March, 1816, which exempts from penalties “a planter in the country, who, on the application of any of his sick neighbors, should procure them some alleviation, or administer them any kind of physic.” The acts of 1816 and 1840, being penal statutes, must be strictly construed. 1 Blackstone, 88. If the evidence is insufficient to convict the plaintiff under an indictment, he cannot be deemed to have violated the law, so as to defeat, his action.
    3. He is clearly entitled to recover, under his amended petition, for medicines furnished, and services rendered in nursing the deceased testator, and alleviating her sufferings whilst laboring under the palsy, which terminated her life. The testimony of Dr. McFarland, as to the value of such services, would juslify the verdict. This claim is not barred by the prescription of one year. GaUaspy v. Livingston, 5 Ann. 671.
    4. Finally, if, upon a view of the whole case, there be any doubt upon the mind of the court, the plaintiff’, in this instance, is entitled to the benefit of it. When the facts of a case present a double aspect, one of which displays a contract authorized by law, and the other one which the law reprobates, the contract must be sustained. Succession of Bushrod Jenkins, 5 Ann. 682- Bank of Louisiana v. Briscoe, 3 Ann. 157.

      Jones, for defendant.
   By the court:

Dotibab, J.

The plaintiff, a physician, sued the defendant as universal legatee of Mrs. Prolhro, deceased, for medical attentions and services rendered her during her last illness, and by an amended petition, claimed compensation for medicines furnished, and attentions bestowed in nursing the deceased during her last illness, which he says was protracted and incurable.

Defendant pleaded, that plaintiff was not duly licensed by a medical board of the State, in conformity to law, and could not recover for services rendered as a physician, in contravention of law.

There was a verdict and judgment for the plaintiff, and the defendant has appealed.

Our laws expressly prohibited every person from practising the profession of a physician, an apothecary, or that of midwifery, without a special license granted by the medical board, or a diploma from the University of Louisiana, and imposed a fine upon all persons so offending, for the benefit of the Charity Hospital. It is true, that subsequent to the services rendered by the plaintiff as a physician, and during the pendency of this suit, the Act of March 10th, 1852, has been passed, authorizing any person with a diploma from a Chartered Medical College in the United States, to practice medicine without license, .and to charge, demand and receive the usual fees for visits, &c., and repealing the penal laws not consistent therewith. From whence, it is argued by plaintiff’s counsel, that the repeal of penal statutes pending a litigation in which its penalties are invoked, taking from the courts the power of enforcing those penalties, confers on the plaintiff the right to recover for services that were illegally rendered before the repeal of the statutes. This we think by no means follows. The repeal of a penal statute prevents a penalty or fine from being enforced, but does not render a contract, made in defiance of law, valid, nor does it give any right of recovery on such a contract.

It is next argued, that the plaintiff comes within the unrepealed proviso of sec. 4th of the act of the I6th March, 1816, which exempts from penalties “a planter in the country, who, on the application of any of his sick neighbors, should procure them some alleviation, or administer them any kind of physic.” The same answer may be given to this, as to the former proposition. It only relieves him from the fine or penalty.

The plaintiff’s counsel further contends, that the plaintiff is entitled to recover under his amended petition, for medicines furnished and services rendered in nursing the deceased.

"We consider this a mere shift or device on the part of the plaintiff, with the hope that he might recover as a nurse, for services rendered illegally as a physician.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that there be judgment for the defendant, the plaintiff paying costs in both courts.


author: Rost', J.

text:
    Mary L. Drake v. Henry Drake, Administrator et al.
    A minor’s mortgage, on the property of his tutor, commences from the date of the tutorship.
    The omission to insert the date of the mortgage, in the-judgment obtained for the minor against his tutor, cannot affect the legal rights of the minor. It is enough that the right of mortgage should be recognized in the judgment.
    The date of the mortgage is established by law, and may be proved aliunde.

    APPEAL from the District Court of the Parish of Bossier, Jones, J.

      Lawson and Fuller, for plaintiff.

      Peets, and Roysdon and Stafford, for defendants.
   By the court:

Rost', J.

There is no error in the judgment appealed from.

The minor’s mortgage on the property of Reuben, Drake, relied on by the defendant, commenced from the date of the tutorship in 1836. Although it would have been proper to insert the date of that mortgage in the judgment obtained for the minor against his tutor, the omission cannot affect his legal rights. It is enough that the right of mortgage should be recognized in the judgment. The date of the mortgage is established by law, and may be proved aliunde. This date being long anterior to that of the mortgage claimed by the plaintiff on the property of her husband, Reuben Drake, and the fund in the hands of the sheriff being insufficient to satisfy the minor’s judgment, she has no right to any portion of it.

The judgment is affirmed, with costs.


author: Dunbak, J.

text:
    Heirs of Joseph Thomas v. John M. Phillips.
    It would introduce infinite public mischief, were the court to decide that the confirmations by the commissioners and Congress, made expressly to those who claim by derivative title, did not operate to their own use.
    If the adjudication by a commissioner in favor of the claimant, duly authorized by Congress to make such a decision, would be final, the court cannot perceive why a decision and confirmation by Congress itself, should not be equally valid and final.
    APPEAL from the District Court of the Parish of Catahoula, Barry, J.

      McGuire and Ray, for plaintiff.
    The decisions relied on by the judge, are Purvis v. Harmanson, 4 Ann. 422. Lobdell v. Clark, 4 Ann. 99. Strother v. Lucas, 12 Peters, 458. Le Bois v. Bramell, 4 Howard, 449.
    We contend that this case differed materially from those cited; they were confirmed by acts of Congress, based upon reports of commissioners vested with powers to hear, decide and adjudicate upon the validity of the claims and the transfers thereof. In some of those cases the court gives this as a reason for their decision. The powers vested in those commissioners are to be found in Land Laws and Opinions, vol. 1, p. 122, No. 74, s. 5, May 2d, 1805; p. 154, No. 94, s. 4, March 3d, 1807; p. 228, No. 151, s. 3, February 27, 1813; p. 242, No. 162, s. 3, April 12, 1814; p. 247, No. 166, April 18, 1814.
    We think the old decisions are correct in relation to this case; that the confirmation inures to the benefit of Thomas, unless a transfer to Henry is proven. Thomas v. Tunley, 3 R. R. 212. Bradley’s Heirs v. Calvit, 5 M. R. 662. Sanchez v. Gonzales, 11M. R. 207. Sackett v. Hooper, 3 L. R. 107. There has not been any evidence offered either in court or in the Land Office, of any transfer to Henry, or any occupancy by him.
    The deed from Turnley and Walton to Philips, subrogated him to their rights of warranty on Mrs. M’Cluer. The deed from Mrs. M’Cluer to them was a private sale of property, belonging to an estate in which minors were interested, is a nullity, and not a sufficient basis for prescription without actual possession over thirty years. It is a nullity. Francoise v. Delaronde, 8 M. R. 629. Green v. Hudson, 7 L. R. 123. Huey v. Barrow, 4 Ann. 252. Reeves v. Towles, 10 L. R. 283. Smith v. Corcoran, 7 L. R. 49. C. C. 3449 to 3453, 3414. Balot v. Morina, 12 R. R. 559. Bradford v. Cook, 4 Ann. 231. Williams v. Booker, 12 R. R. 257. , M’Clusky v. Webb, 4 R. R. 204. Actual possession is necessary to commence a prescription upon.

      Mayo and Curry, for warrantors.

      Phelps, for defendant.
   By the court:

Dunbak, J.

This is a petitory action, to recover a tract of land lying on Black river, in the Parish of Catahoula, containing six hundred and forty acres. The plaintiffs, who are the heirs of Joseph Thomas, in their original and amended petition, claim title to this land under an act of Congress of the 28th February, 1823, which confirmed it to John Henry, upon D. J. Sutton’s report, as register of the land office at Monroe, Louisiana, January 1st, 1821. They allege, that although it is true that the confirmation was thus made to John Henry, founded on a settlement and cultivation by Joseph Thomas, prior to the 20th December, 1813, and by conveyance from said Thomas to the claimant, yet in truth there never was any assignment of the claim by Joseph Thomas to John Henry, and on the trial of the cause, the plaintiffs introduced proof, that no evidence now exists, in the land office at Monroe, of any such assignment. This is proved by a certificate of the present register at that office, dated May 31st, 1851.

The defendant sets up title under the said John Henry. There was a verdict and judgment in his favor in the district court, and the plaintiffs have appealed.

Oh the trial of this cause, the district judge instructed the jury, “that by the confirmation, the title to the land in controversy was vested in John Henry; and unless the plaintiffs showed title through him since the confirmation, they could not recover.” To this charge the plaintiffs took their bill of exceptions. We think the district judge did not err in this instruction, and this is indeed the only question to be decided in this cause. We still adhere to the opinions heretofore expressed by this court, in. Purvis v. Harmanson, 4 Ann. 422, and Lobdell v. Clark, Ib., 99, and are yet disposed to follow the doctrine so often reiterated and affirmed by the Supreme Court of the United States, “thatit wopld introduce infinite public mischief, were we to decide that the confirmation by the commissioners and Congress, made expressly to those who claim by derivative title, did not operate to their own use.” Strother v. Lucas, 2 Peters, 458. Marie Niccolle Les Bois v. Samuel Bramel, 4 Howard, 449.

But the plaintiffs’ counsel contends, that the act of Congress of May 11th, 1820, only authorized the register to receive evidence of the claim, to record the same, and send copies thereof, with his opinion as to the credibility of the evidence, to the Secretary of the Treasury, on or before the 1st January, 1821, but that there was no provision in that act, authorizing tha register to adjudicate upon the claim. We cannot see that this alters the case. If the adjudication by a commissioner, in favor of the claimant, duly authorized by Congress to make such a decision, would have been final, we cannot perceive why a decision and confirmation by Congress itself, should not be equally valid and final.

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


text:
    H. Kendall Carter & Co. v. W. J. Q. Baker.
    A factor has a privilege apon the crop of the current year for all necessary supplies furnished to the plantation of his principal. C. C. 3184. Act of March 23,1843, p. 44.
    APPEAL from the District Court of the Parish of Ouachita, Sharpe, J.

      McGuire and Ray, for plaintiff.

      Baker, propria persona.

   By the court;

Dunbar, J.

This suit is brought on a note for twelve hundred and ninety-five dollars, with 8 per cent interest from the 16th April, 1850, payable the 1st January, 1851, the payment of which is secured by mortgage. It appears that the plaintiffs were the factors of the defendant, and upon the settlement of his account with them on the 22d April, 1850, gave the note and mortgage above-mentioned. After the note and mortgage were given, as stated by a witness of the plaintiffs, who was their agent, the defendant solicited “ other accommodations and supplies,” which witness promised that plaintiffs would furnish him, “provided he would ship his growing crop, of the year 1850, to them,” which was assented to ; and the plaintiffs continued, upon this condition, to furnish the defendant advances and supplies.

In January, 1851, the defendant shipped to the plaintiffs twenty bales of cotton, which neted $1093 31 and paid the account current of the defendant, leaving a balance in his favor on the 1st March, 1851, of $591 10, which was imputed as a payment on the note sued on.

The defendant, on the 1st January, 1851. the date of the shipment of his cotton, wrote to the plaintiffs that he desired them to place the proceeds of the cotton to the payment of the note and mortgage, as it was the most onerous debt, and now sets this up as his defence to this action.

The district court gave judgment for the plaintiffs, disregarding this defence, and the defendant has appealed.

From the testimony of the witness before referred to, we think the district judge might very well have come to the conclusion, that the condition upon which the plaintiffs agreed to continue furnishing the defendant with supplies and accommodations was, that they should be paid out of the proceeds of the sale of the cotton shipped to them. See Acts of 1841, pp. 21-22, and 1843, p. 44. Bloodworth v. Jacobs, 2 Ann. 24. We do not believe that it was intended by the parties, that the plaintiffs should be placed in a worse condition than if they had been undertaking, for the first time, the factorage business of the defendant. If, after the settlement with the plaintiffs, he had employed a new factor, the latter would have had a privilege for all necessary supplies furnished his plantation on the crop of 1850.

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