author: Spoffohd, J.

text:
    Succession of Henry Fletcher, f. m. c.-Opposition of Rev. G. J. Duquesnay.
    An appeal taken on behalf of the State by an officer unauthorized to prosecute such appeal, which is therefore dismissed, does not bar a subsequent appeal from the same judgment, by an assignee of the State whose interests have been'affected by the judgment.
    The universal legatee having seizin of the property of a succession, is not accountable for the revenues of a particular legacy, before delivery, or a demand of delivery made of him in due form by the particular legatee. C. C. 1619.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Q. Roselius and W. C. Miller, for appellants.

      A. Robert, Collens & Wooldridge, and J. Foulhouee, for appellees.
   Spoffohd, J.

This succession has been heretofore decreed to belong to the State. See Succession of Fletcher, 11 An., 59. .

Some months afterwards, when the succession was about to be wound up, pursuant to that decree, the Rev. G. J. Duyuesnay, in his quality as Curate of the Church of St. Louis, filed an opposition to the tableau of distribution, upon which he claimed to be classed as a'creditor of the succession for the sum of $6000. His opposition was sustained to the amount of $5141 24, by a judgment of the District Court, rendered oh the 14th of January, 185V.

From this decree Henry C. Miller, an attorney appointed by the Auditor of this State, immediately prosecuted an appeal to. this court.

This appeal was on motion dismissed by this court, on the ground that an attorney appointed by the Auditor had no right to ask an appeal in the name of the State from a judgment of one of the courts of New Orleans. See Succession of Fletcher, 12 An., 498.

Pending that appeal, the State of Louisiana renounced and assigned its rights in the Succession of Fletcher to Aspasie and Oatiche Boham, free women of color, (who are the present appellants,) by a legislative Act, approved March 19th Í857. (Sess. Acts, 202). These parties were specially empowered by the said Act to take charge of said estate to the same extent that the State of Louisiana was then entitled.

On the l-Gth June, 1857, Aspasie and Oatiehe Boham, asked for and obtained an order of appeal from the judgment of the 14th Januaryprévious, sustaining the opposition of Duquesnay. This appeal is now before us.

Duquesnay has movod to dismiss the appeal, upon grounds which appear to us untenable.

Under our decision, the former order of appeal was a mere nullity, because not asked for by any person competent to represent the State. The State, being decreed heir to the succession, had an obvious interest in reversing a judgment which reduced the sum coming into the public treasury more than $5000. The State had a right to appeal, which would last one year from the time of the rendition of the j udgment. Having, in contemplation of law, taken no appeal, the State had waived none of its rights on the 19th March, 1857, when it transferred them, such as they were, to the present appellants. Among those rights was the right of appealing from the judgment on Duquesnwy’s: opposition. Asphasie and CaMohe Boham, by virtue of their subrogation to-the rights of the State, acquired the right to appeal, which the District Judge properly accorded to them.

All the other grounds urged for a dismissal should have been urged upon the rule taken by Duquesnay, to set aside the order of appeal in the lower-court. The identity of the appellants as the parties namedin the Act of March 19th, 1857, and their compliance with the terms of that Act, were not contested by the rule below, and we see no evidence in the record to justify any doubt here upon these points.

The motion to dismiss is, therefore, overruled.

The opposition of the Rev. Curate of the Church of St. Louis was founded upon the allegation that the deceased Hemp Fletcher was accountable and legally liable to him for the sum of $6000, for the rents of certain real estate held and enjoyed by Fletcher, as the testamentary executor of the Widow Bernard Convent, from the 1st May, 1837, to the 1st May, 1847.

The origin of this stale demand appears to be this :

In her last will, the Widow Couvent, f. w. c., left the following particular bequest:

“ Je veux et ordonne que mon terrain á l’encoignure des rues Grands Hommes et de l’Union soit á perpétuité consacré et omployé ál’établissement d’une école gratuite pour les orphelins de couleur du faubourg Marigny.
Cette école s’établira sous la surveillance du révérend Pére Maenhaut, et, en cas de mort ou d’absence, se trouvera sous la surveillance de ses suceesseurs en office. En conséquence, j’entends que les dits terrains et édifices ne soient jamais vendus sous quelque prétexte que ce soit, mais au contraire qu’il y soit fait par souscription ou autrement toutes les améliorations et additions que le temps et le nombre des enfants orphelins pourront exigen. ”

She then instituted Henry Fletcher, whom she had previously appointed executor of this will with seizin of her property, her universal legatee, in the following terms:

“Mes dettes et mes legs une fois payés, dans lo cas qu’il resterait quelque chose,- jo nomme et institue le dit Henry Fletcher, mon légataire universel, jaour par lui en disposer efc en faire la distribution, suivant les instructions que je luí donnerai de vive voix.”

The testatrix died about the 1st of May, 1837.

It does not appear that the Cure Maenhaut made an attempt to carry out the scheme of the testatrix, or to establish the contemplated school, until the spring of 1847. In April of that year, a number of free colored persons formed themselves into a voluntary corporation, under the general law, which was «styled “ La Société Catholique pour 1’instruction des Orphelais dans ¡’indigence.”

On the 6th of May following, by an authentic act, to which Henry Fletcher was a party, Maenhaut ceded to this society the property at the corner off ‘G-reatmen and Union streets, bequeathed as aforesaid by the Widow Convent.

In this act is the following declaration: “ Et" le dit Rev'cl. CMaenhaut a 'de plus expose que jusqu’á ce jour, il n’a vu la possibilité de mettre á execution les volontés de la t¿statrice, et qu’en consequence Henry Fletch&r, l’exé■cuteur testamentaire et légataire universel de la dite veuve Bernard Convent, a 'continuá jusqu’á present á jouir lui-méme des reversus de la propriété dont il .s’agit, sans que «lui le Reverend C. Maenhaut s’y soit le moinárement immiscé.”

It does not appear that there was ever any written recognition on the part •of Fletcher, that he was accountable to any one for the rents of this property (from the death of the testatrix up to the date of the cession.

No judicial demand was made by any one for an account for those rents, until June, 185®, more than nine years after Fletcher had ceased to possess the property, and nearly three years after his death.

The opponent JDuquesnay is the successor in office of the Rev'd. Cwré Maen•haut. He now demands that the revenues of the aforesaid property from 1837 to 1847, he paid to him out of Fletcher's succession, by virtue of the right of eurvillcmce over the school, given him by the will of the Widow Oouvent.

We think it clear that the will gives him no right of action for those rents. Not to aotioe other obstacles, it will suffice to say that Fletcher had the lawful seizin of the property, that it was bequeathed as a special legacy to found a school which, not he, hut the Curé Maenhaut was to found, and that he was never 'in default for not delivering the legacy. Indeed, the opponent’s predecessor, Maenhaut, when he received the property and devoted it to its charitable destination, expressly declared that, up to the 6th of May, 1847, it had not been possible to put the wishes of the testatrix into execution.

Fheiaher then, as the universal legatee of the testatrix, was proprietor of the revenues up to that time, since she made no express declaration in her will that they should belong to any one else before the establishment of the school, by the Curé Maenhaut.

“ Every legacy under a particular title gives to the legatee, from the day of the testator’s death, a right to the thing bequeathed, which right may be transmitted to his heirs or assigns; and this takes place as well in testamentary dispositions, universal or under an universal title, as in those made under a-particular title.

“Nevertheless, the particular legatee can take possession of the thing bequeathed, or claim the proceeds, or interest thereof, only from the day the demand of delivery was formed according to the order herein before established1, or ®-'om tbo day oil which that delivery was voluntarily granted to him.” O. G 161,j_

But the opponent Duquesnay also claimed the amount of these revenues under an alleged oral promise of Fletcher.

If he did not owe them, such promise would be a nude pact. But the evidence is too uncertain and inconclusive to establish a valid and perfect contract on the part of the deceased to pay a specific sum of money, even if there were a natural obligation to support such a contract.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, so far as it respects the opposition of J. L. Duquesnay, curate, &c, be avoided and reversed, and that the opposition of said Duguesncn/ to the account and tableau of distribution herein filed, be dismissed, the said opponent paying the costs thereof in the District Court, and the costs of this appeal. And it is further ordered, that in all other respects, the judgment appealed from be affirmed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    L. Surgi v. City of New Orleans.
    Where the Clerk has omitted to issue a citation of appeal in conformity to the order granting the appeal, the error is not attributable to the appellant; the appeal will not be dismissed on such ground, but time allowed to correct the error.
    APPEAL from ihe Fifth District Court of New Orleans, Augustin, J.

      M F. Dwell, for plaintiff.
    J". J. Miehell, for defendant and appellant.
   Merrick, C. J.

In this case there is a motion to dismiss the appeal.

The judgment was signed on the 31st day of January, 1857. The motion for an appeal and order of appeal were made and allowed on the 4th day of February, it being also ordered that a citation of appeal issue to the plaintiff.

On the 14th of February, the plaintiff took a rule upon the defendant before the District Court, to show cause why the order for a suspensive appeal should not be set aside, on the ground that no proper appeal had been taken. When the rule came on for hearing it was ordered, on the motion of plaintiff’s counsel, that the rule be dismissed.

This is not one of those cases in which the want of a citation is attributable to the appellant. It was prayed for in the motion for an appeal and the vo luntary appearance of the plaintiff in his rule to set aside the order of appeal, and the abandonment of that motion was calculated to put the Clerk off his guard. Under the nineteenth section of the Actof 1839, it is in the power of this court to give time to correct the error. See Act of 1839, p. 1C4.

Now, therefore, unless the plaintiff and appellee do enter a formal waiver of the citation of appeal in this case, it is ordered, that this case be continued until the second Monday of June next, in order that the plaintiff and appellee may bo served with the copy of the motion and order, as well as the citation of appeal.


text:
    Succession of Martin H. Devereux.
    A partition of a succession made between an heir of age and minor heirs cannot be opposed by the heir who was of age and who went into possession of his portion, on the ground of informalities in the proceedings as regards the minor heirs.
    Such a partition, although not homologated, is binding on the heir of age who signed the act of partition. The decree of the Judge was only necessary to bind the minors.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      G. Roselius, for tutrix and appellant.

      Semmes & Labatt, for opponent and appellee.
   Merrick, C. J.

The partition made on the 10th-day of July, 1852, cannot be disturbed in this proceeding on account of the causes alleged.

In 1843, Mao-tin H. Devereux applied to the Probate Court to be confirmed as tutor to his minor daughter, the present opponent'in this case. In 1845, he rendered his tutor’s account in the same court, contradictorily with the under-tutor, wherein he showed a balance due his daughter from her deceased mother’s estate and the community of $17,370 57. This account was homologated November 14th, 1845.

Devereux having contracted a second marriage, died in 1851, leaving two minor children by such second marriage. His second wife also survived him, George Allen was appointed his testamentary executor.

The opponent arrived at the age of majority on the 6th day of January, 1852.

The executor, in May, 1852, on presenting his final account wherein he had set forth the indebtedness of the estate to the opponent and the amount coming to her, the widow and minor heirs, proposed a plan of distribution or division, and in order to facilitate the payment of opponent and to effect a partition between the' parties, and avoid a sale, prayed that the heirs be notified of the filing of the account and alleged that a family meeting would be called to deliberate, and prayed that petitioner be discharged. In this account he placed the opponent’s claim against her father’s succession a£ the same sum as mentioned by her father in his account, .and added thereto her share of the residue of his estate after making deduction of her debt. - The account (which had been shown to her and explained previous to -its being filed) was duly notified to her after the same was filed, and she expressly approved of the proposed giving in pcnjment and partition on the basis set forth in the account on the 16th day of June, and" it was homologated on the 19th day of June, 1852.

The family meeting was convoked and was assisted by experts who appraised the property proposed to be set apart to pay opponent her debt and allot to her her portion of the estate to bo divided, and also the portions proposed by the executor to be set off to the widow and the minor heirs. The family meeting advised that the proposed partition and' giving in payment should be carried into effect, and recommended that the samo be done as soon as practicable. The under-tutor concurring, the Judge homologated the deliberations of the family meeting and ordered “ a final settlement and partition among the widow and heirs of the late Martin II. Devereux, as well of the community as of the separate property belonging to the succession of the deceased, and tho payment of the debts and legacies of the succession, by giving in payment, sotting apart and conveying certain property equivalent in value to tho claims and rights of the respective parties against and in the succession of tho deceased, (be) made before H. B. Cenas, Notary Public of this city, in accordance with the account herein of the testamentary executor and of the advico of the family meeting.” This decree was signed July 7th, 1852.

On the tenth day of tho same month, the partition took place, and precisely the same property was set off to the opponent in payment of her claim against her father’s estate, as well as her interest in it as was proposed by the executor and recommended by the family meeting and ordered by the Judge. And in like manner was the property set apart to the widow and the minor heirs.

The opponent was a party to the act of partition and signed the same with the widow and tutrix, the experts, the notary and the witnesses.

One clause of the act reads thus: “ And the said Miss Manp Han't Devereux (i. e. the opponent) and Mrs. Mary C. Dev&reux do by these presents transfer, convey, assign and set over unto the said minors Anna M. Devereux and Catherine Devereux all their right, title and interest in and to the property hei’ein allotted and given in payment to the said minors.”

The widow and under-tutor in like manner recognize the rights of the opponent, and all parties acknowledge the receipt from the executor and possession of the property “set apart, conveyed and given in payment of their respectivo claims and rights against and in ” the succession.

The opponent as well as the widow and heirs have been in the possession and enjoyment of their respective portions ever since.

The act of partition not having been homologated by the decree of tho court, the opponent filed an opposition to the partition on the 19th day of January, 1856, which was amended in May of the same year, and citation served upon the widow individually and as tutrix the 28th day of May.

As to so much of the opposition as attacks the tutor’s account and the judgment homologating the same, the Judge of the Fifth District Court correctly decided that he had no jurisdiction.

The question, therefore, to be decided by this court, is whether or not the partition signed by the opponent is binding upon her ?

It is contended that the partition is informal because special tutors were not appointed to represent the two minors as required by Article 1291 of the Civil Code, and because the allotment of the shares to the minors was made conjointly.

At the time the opponent signed the act of partition, she was of full ago, and the instrument required no homologation to make it obligatory upon her-It was an act which, if all the parties had been majors, would not have required the decree of the Judge to give it validity as to any one. The decree of the Judge was only required to bind the minors. The widow and major heirs had the right, if they had so chosen, to withhold their signatures and approbation from the act. If they had done so, they would have been at liberty at any time before ratifying it by taking possession of the property, to oppose tho partition and show irregularities in it. But' having approved the act, having conveyed to the minors the interests allotted them by the act, they are in the condition of parties who have voluntarily confessed judgment. They cannot afterwards be permitted to attack the proceedings for want of form at least. O. C. 1785,'1438. All that they now can do, is to present the partition for homologation and cito the proper parties who hayo the right to oppose the same, and if the appellee shall deem the advice of a family meeting necessary to confirm the act of partition, she has the right to pall such family meeting. O. O. 1788.

Those views have been repeatedly recognized by our predecessors.

In the case of Coocey's Heirs v. Claris, 7 L. R. 160, it is said: “The principal objections to it (the partition) are its informalities in the proceedings and want of homologation in due time. It is true that the proceedings did not appear to be clothed with all the formalities which probably are required by law to give absolute and conclusive effect to them as a final partition.' It was made in judicial form between co-heirs, some of whom were minors represented by their mother and tutrix, and if the property really belonged to the estate of their father, the partition gave to each heir a separate title to the property by him partaken, good and valid until annulled or changed by the application of those interested in the succession. See La. Code, Arts. 1219 and 1438.”

In the case of Dufau et al. v. Latour et al., 8 L. R. 552, the suit had been brought without noticing a previous partition. On an exception being taken to the action, the court says: “ The act of partition relied on in support of the exception recites that ‘ the surviving husband and the heirs properly represented appeared before the notary, who was the same Judge of Probates in pursuance of a previous notice, and that the notary proceeded to open the present proais verbal of partition.’ It then sets forth the net amount of the estate in money, after deducting the charges, and concludes by exhibiting the distributive share of each of the heirs. It appears to be signed by all parties interested, the married women duly represented by their husbands.”

“We are of the opinion,” the court proceeds, “that the Court of Probates did not err in sustaining the exception. While this act remained in force and not rescinded, no new partition could be provoked. The parties a/re to be governed by it as to the shares they wre respectively entitled to ; and if any of the heirs have received more than their share at" the sale of the estate, their co-heirs are entitled to an action to enforce the contract and to equalize the shares in the courts of ordinary jurisdiction."

In the case of Baham et al. v. Baham, 11 L. R. 511, Oarleton, Judge, as the organ of the court, said: “Courts should listen with great caution to objections of this nature, (objections relating mostly to matters of form in a sale to effect a partition,) when no injustice appears to have been done. The formalities prescribed by law for conducting suits and the fulfillment of contracts, are intended as a safeguard to protect the rights of parties, and should never be used as a weapon to inflict an injury. In the case now under consideration, the sale took placo on the 27th of May, 1835, and no complaint was heard until the 27th of August, 1836, when the plaintiffs filed their petition.”

The testimony having shown that the parties complaining had ineffectually offered some of the notes taken at the sale to effect a partition for discount, the court remarks further:

“ This testimony, standing as it does, wholly, uncontradicted upon the record, shows what, in our opinion, amounts to a ratification of the sale; and that any objections on the part of the plaintiffs against the irregularity of the proceedings, if any have intervened, comes too late.”

In the case of Kemp v. Kemp et al., 15 L. R. 520, Bullard, Judge, as the organ of the court, said: “ As it relates to the heirs of age at the time of these partitions, they ha/oe no right to complcdn, and so far as they are concerned those acts ought to be held valid. But the minors and those not parties are not concluded, and their portions ought to be made up to them according to the principles of equity. Such partial and informal divisions of property ought not to be treated as absolute nullities, specially when they have been acquiesced in for a series of years, and while the rights of minors are to be protected, other vested rights are, if possible, to be maintained.” See Opinion Book No. 9, p. 573.

Erom these authorities, it appears that Article 1785 of the Civil Code, which declares that those who have treated with a minor cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability ceases, or by those who legally administer the rights of such person during the disability, is applicable to a partition, and that the major heir who has signed and ratified the act of partition cannot be heard to allege its nullity because not formal as to the minor.

The case of the Succession of Story, 5 An. 210, is not at all opposed to the previous decisions. That case was a direct appeal from a partition which the appellants had never ratified, but which they were opposing. Of course they had a right to have the forms of law pursued in making the partition. The case of Gassen v. Palfrey, 9 An. 560, is also one of those cases in which this court has held that the bidder at a judicial sale who has not either paid the price or taken possession, is not obliged to complete the purchase and pay the price where he discovers illegalities in the proceedings, which have led to the sale, calculated to throw a cloud upon his title: a very different case from that where the purchaser has signed the act of sale or adjudication and taken possession.

As it respects the allotment of the shares of the two minors conjointly, if they are prejudiced by it, they alone can complain. At most, they are only prejudiced by its making them pay the costs of a partition between themselves, whilst any loss would be borne by both and any advantage by the increase in value of any portion of the property would benefit both. This is not a matter entering into the essence of the contract of partition, as often portions allotted per stirpes will not admit of further subdivisions.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the District Court be reversed, and that the opposition of Ma/ry Heart Devereux, wife of Gornelius Noonan, appellee, to the partition of the estate of her father, Ma/rtin Hooper Devereux, be dismissed and the prayer of said opposition rejected at cost of appellee in both courts.

Spoffobd, J., took no part in this decision.


author: Oole, J. Merrick, C. J., YoosniES, J.,

text:
    C. M. Hart v. R. A. Stewart.
    ’Hhe Article 456 of the Code of Practice does not refer to the award of amicable compounders. Where there is no allegation of fraud or other malpractice the homologation of the av/ard of amicable compounders should be made on motion without any delay being granted to the adverse party.
    APPEAL from the District Court of St. Bernard, fiousseaw, J.
    Xi. if. c6 if. H: Marr, for plaintiff.
    A. A. Upton, for defendant and appellant.
   Oole, J.

The only question in this case is whether, when it is agreed to leave the decision of the case to amicable compounders, and their award is to be final, whether a party can ask to have the award homologated when the counsel of the other party is present in court, and when no allegation of fraud or other malpractice are set up, without following the provisions of Art. 456 of the Code of Practice, and calling upon the adverse party to show cause within ten days after the notice of such motion shall have been served on him, why such report or award should not be homologated.

We think that the notice of ten days in the case at bar was not necessary, because Articles 459 and 460 of the Code of Practice declare that the court cannot revise the award of amicable compounders.

Art. 456 of the Code of Practice does not refer to the award of amicable compounders : for there would be no use to give the notice when the court has not the power to rectify the errors in the award.

The reason of this is found partly in Art. 3077 of the Civil Code, “Amicable compounders are authorized to abate something of the strictness of the law in favor of the natural equity.”

The court cannot correct what may appear to it errors, for they may have been caused by yielding to the dictates of equity.

If appellant had suggested fraud or malpractice at the time the motion was made to homologate, it would have been proper for the court to have granted delay, hut no such suggestions wore made.

Art. 456 of the Code of Practice evidently refers to ordinary errors which may exist in the award, and requires a notice of ten days to the opposite party, to give him an opportunity of alleging them ; and as courts have not the right of correcting them in the awards of amicable compounders, this notice is not then necessary when made by this class of arbitrators.

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

Merrick, C. J.,

concurring. I think the same notice is required in the ease of the award of amicable compounders as in the case of arbitrators. C. C., 8077. Although the award of the amicable compounders cannot be set aside for the causes for which an award may he annulled, still the rule or motion is important as there may be a good reason why the award of amicable compounders should not be homologated; such as informalities in their proceedings, the want of the oath, or the investigation and decision of matters not submitted to them.

But in the present case the defendant has waived the motion and notice by voluntarily excepting to the award. In my opinion this exception formed an issue which ought regularly to have been set down for trial, and judgment thereon rendered.

But the defendant does not complain that his cause was not set down for trial, but, that it was tried when it was not at issue for want of a written, motion to homologate.

I, therefore, think the judgment ought to be affirmed.

YoosniES, J.,

concurring. After the joinder of issue in the court below, the parties litigant agreed to submit to amicable compounders the matter in dispute between them, and to abide by their award, which should be final. In case of disagreement, the amicable compounders were to select an umpire, which was done. The litigants also agreed to waive the oath and all other formalities required by law to be observed by the amicable compounders.

An award made in accordance with this agreement was filed in the court below on the 18th of June, 1856. Twelve days after, the defendant filed a petition alleging that the award contained errors to his prejudice, and praying that the said award might be examined on its merits; and, after duo hearing and oyer, reversed apd annulled, and judgment rendered in his favor according to the nature of the case, &o.

The motion of the plaintiff to homologate the award was made on the 6th of October, 1856.

It is perfectly clear, that the award could not be disturbed by the Judge, whose duty was limited merely to its homologation' as it stood, in order that it might have the effect of a definitive j udgment. And the award does not appear to have been assailed on any legal grounds.

I am, therefore, of the opinion, that the defendant must, under these circumstances, be considered as having waived the ten days notice, if such notice be essential, to show cause why the award should not be homologated.

For this reason I concur in the conclusion of Mr. Justice Cole for the affirmance of the judgment of the court below.


author: Buchanan, J.

text:
    O. G. Moulton v. J. T. Hodges.
    Where the petition and notes annexed had disappeared from the Record and could not be found after diligent search, the case was properly tried on a copy of the petition filed under an order of court contradictorily rendered.
    Where consent is the basis of a judgment it must appear before the appellate court by proof independent of the judgment itself.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      W. L. Pitta, for plaintiff.

      T.- J. Semmes, for defendant aud appellant.
   Buchanan, J.

This is a suit upon several promissory notes of defendant in favor of plaintiff, which were annexed and made part of the petition.

The answer specially denies the signatures of the notes.

In the interval between the service of petition and citation, and the filing of the answer, the petition and notes annexed disappeared from the Record and have never since been found, although diligent search was made for them. Advertisements of the loss of the notes were also inserted in a newspaper of this city.

The case was tried in presence of both parties by counsel, upon a copy of the petition, which had been filed under an order of court contradictorily rendered; and judgment was rendered in favor of plaintiff for the amount due upon the notes as set forth in the petition, with five per cent interest from judicial demand; which judgment was amended the next day “ the counsel for defendant being present in court and consenting thereto (as is stated in the minute of judgment) by increasing the rate of interest to six per cent, and allowing the same from maturity of the notes.

Defendant appeals.

Plaintiff’s case is made out by the testimony of Messrs. Pitts and Lathrop, as to a conversation between plaintiff and defendant, at which those witnesses were present. The loss of the notes is' proved by-the direct testimonjr of the two clerks of the court, Weysham and Hopkins. C. C. 2258. The next question is as to the authority of the counsel of defendant to consent to the amendment of the judgment originally rendered. Upon this point, the appellant refers us to the case of Broussard v. Broussard, 19th La., 354. That was a much stronger case than this. The judgment rendered on the very day the petition was filed, mentioned that it was rendered 7>y consent of pan'ties. In the language of the Supreme Court through its organ Judge Morphy — “ Prom the proceedings exhibited in the Record it does not appear that the defendant has ever been a party to them. He never appeared in court bj1' filing any plea, exception or answer, nor does ho appear to have been cited. No judgment can be rendered without citation to the party, and without a contestatio litis, resulting either from an answer, or from a judgment by default.” In these respects, this case is certainly different from that of Broussard v. Broussard, for the present Record shows a personal service of citation, a judgment by default, an appearance to set aside default, and an answer filed for defendant. But the general remarks contained in the case of Broussard v. Broussard, and which follow the above quotation, apply to this case. Judge Morphy proceeds: “ We have often held that this court cannot receive as proper evidence for their consideration anything which the Judge states in his judgment to have been proven. An admission of material facts could not bo proved by any mention in tho Judge’s opinion of its being made. And what is a consent that a judgment be rendered, but an admission of all the facts necessary to make out the plaintiff’s case? This consent, which is the basis of the judgment, must appear before us, by proof independent of the judgment itself, when the party prays for relief from this court; otherwise the bare mention of such consent in the opinion of the Judge of the first instance would conclude the suitors before him and deprive them of the privilege of litigating their rights in this tribunal; as no appeal lies from a judgment rendered by consent or on the confession of a party.” See also 3d La., 203; 19th La., 84; 6 Rob., 149.

The consent of counsel to amend this judgment appears to have been made with the view of dispensing with an application for a new trial on thfe part of plaintiff; for the petition asked for six per cent, from the maturity of the notes. We are therefore to inquire whether the plaintiff would have been entitled to that interest upon an application for a new trial, upon the law and the evidence in the Record, and independently of the consent of defendant’s counsel.

The petition does not declare in what State the notes sued upon were made, further than this may be inferred from the allegation that defendant was a resident of the State of Mississippi. And there is no evidence in the Record of the legal rate of interest upon said notes at the place where they wore made Under the pleadings and evidence, then, the original judgment seems to have been the proper one in relation to the interest.

It is,' therefore, adjudged and doorecd, that the judgment of tho District Court be reversed; and that plaintiff’s widow' and heirs, made parties hereto, recover of defendant, John T. Hodges, five hundred and thirty-six dollars and thirteen cents, with interest at the rate of five per centum per annum from tho 20th February 1851 until paid, and costs of the District Court \ those of appeal to be paid by the appellees.


text:
    Robert Moores & Co. v. Bates, Benson & Co. et als.
    A partnership in a contract for the building of railroads is an ordinary partnership, and the partners are iiable only for their virile shares.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J. Tried by a jury.

      T. W. Oollens, Logan Hunton, B. W. Hennen, J. B. Ly_ man and J. B. Cotton, for plaintiffs.

      George L. Bright and _E II. Burell, for T. C. Bates.

      J. 8. Holt, for J. Clarice.

      M. M. Cohen and Q. A. Bream, for Opelousas Railroad Company.
   Merrick, C. J.

Bates, Benson & Co. wrere large contractors on the Opelousas and Great Western Railroad. The plaintiffs, Moores & Biccon, were sub-contractors.

The suit is brought to recover $6,584 80 of Bates, Benson & Co. and of the Opelousas and Great Western Railroad Company, on an attested account for that amount of money due by Bates, Benson & Co. for w'ork done upon the road by plaintiffs.

Two only of the fw'in of Bates, Benson & Co. are pevrties to the suit, and final judgment was rendered in this case against them as ‘■'■Bates, Benson & Co." without regard to the non-joinder of the other three partners, in June, 1856, for $5005, from which they, the partners cited, have taken no appeal.

The answer of the Opelousas and Great Western Railroad Company was a general denial. Afterwards, when the case was called up for trial, the Railroad Company, as well as the two defendants cited, excepted to going into trial on account of the want of proper parties. The exception was overruled.

On the trial, tho Opelousas and Great Western Railroad Company were con' demned in solido with Bates, Benson & Co. (as just mentioned) to pay plaintiffs the said sum of money.

The Railroad Company alone has appealed.

The case has been defended by the appellant on tho sole grounds that the work done by the plaintiffs did not amount to so much as allowed by the jury and that as only two of the partners of the firm of Bates, Benson & Co. were parties to the suit, the plaintiffs can only obtain judgment for two-fifths of whatever amount is really due.

On tho first of these questions, we think that the estimates made by the engineer of the company during tho progress of the work, and immediately after the abandonment of the work by the plaintiffs, must, in the absence of all fraud, control the case. The engineers appear to have been selected by the parties as the judges of the work, and it was upon'their estimates that they expected to be paid. See McCord & Co. v. West Feliciana Railroad Company, 3 An. 289, 290.

If the plaintiffs would set aside these estimates, they should show that they are fraudulent or, at least, that they are clearly erroneous.

The testimony in this case effects neither of these' objects. Aside from the survey and location of the Railroad and of the plans and profiles made in conformity thereto, before any work was done upon the road, and which were made when no person had an interest to-make false.measurements, but on the contrary, when it was the interest of the engineer to attain the greatest exactness, it must be obvious, that measurements made by professional engineers, who have aided in laying out the work, and who visit the work during its progress, who know how much has been done previous to the commencement of the work by the contractor, and how much has been left undone, and who make their measurements in the presence of the parties, are much more likely to be accurate than measurments made by persons not familiar with such works, and long after the work has been completed by other persons than those for whom they make the measurement.

We do not think the testimony of plaintiffs’ witnesses sufficient to destroy the estimates, sustained as they are by the testimony of the engineers and other competent persons who, from their'superior means of knowledge, could scarcely be mistaken.

Giving proper weight to such testimony, we find that plaintiffs have done crib-work to the amount of 3,300 feet, which, at $2 per foot, is... .$6,600 00

3,400 cross-ties, it is proven, were paid for and worked into crib-

work, which leaves only 400 according to plaintiffs’ proof......... 200 00

One half mile of clearing................................... 375 00

Total..............................$7,175 00

The engineer in the estimate has deducted $1,742 45 for incomplete work. But at the rates agreed upon between Bates’Benson <& Go. it would only be $1,161 64. Plaintiffs allow.......$1,200 00

Deduct payment...................................4,049 18-5,249 18

Balance............................$1,925 82

This is a larger amount than the Railroad Company has retained to pay these parties.

This brings us to the question whether the plaintiffs can obtain judgment against the Railroad Company for any thing more than the shares of those partners who are parties to the suit.

It is well settled as a general rule of law, that' all parties whose interests are to be affected by the decree, must be made parties to the suit. Here, it is evident that the other three partners were equally interested in defeating the plaintiffs’ pretensions. If made parties, they would have the right to show that they had paid the plaintiffs, or that the work, was not done by the plaintiffs, but by themselves.

No judgment can, therefore, be pronounced in this case prejudicial to their rights. But partners in contracts for the building of railroads, are ordinary partners, and hound for their virile shares, and there is no reason why judgment should not bo rendered in favor of the plaintiffs for two-fifths of one thousand nine hundred and twenty-five dollars and eighty-two cents. McGhee v. McCord, 14 La. 362.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court, ho avoided and reversed as to the said Opelousas and Great Western Railroad Company; and now proceeding to pronounce such judgment as ought to have been pronounced in the court below: It is ordered, adjudged and decreed, that the said Opelousas and Great Western Railroad Company pay to said plaintiffs the sum of seven hundred and seventy dollars and eighty cents, and legal interest thereon from the 21st day of October, 1854, until paid, in discharge of so much of the sum of §1,715 77 in the hands of said Railroad Company, to the credit of said Bates, Benson & Co., and reserving any right they may have to the other three-fifths of either of said sums, or of any other sum in an action to which there shall be proper parties. And it is further ordered, that the plaintiffs pay the costs of the appeal, and the defendant the costs of the lower court.

Spoeford, J., dissenting. It would seem from the authorities, that if the parties composing the firm of Bates, Benson & Co. are liable only as joint obligors, no judgment could be rendered against any of them till all were made parties. McGee v. McCord, 14 La. 362; Thompson v. Chretien, 3 Rob. 28; C. C. 2080; Dougart v. Desaugle, 10 Rob. 430. If, therefore, the Railroad Company, the only appellant, has a right to object to the judgment rendered against Bates, Benson & Co. for the want of proper parties, the logical consequence would be that it could demand a dismissal of the whole action as in case of non-suit.

But I am of the opinion that the Railroad Company has no right to interfere in the judgment, as between the plaintiffs and the firm of Bates, Benson & Co., that firm having acquiesced in the judgment. It can only complain of the judgment rendered against itself on the ground of errors in the attested account of services rendered to the undertakers, Bates, Benson & Co., by the plaintiffs, as sub-contractors. That attested account is the basis of the demand against the Railroad Company. To procure a judgment against the company, it was not essential for the sub-contractors to have a judgment against the undertakers. I think the plaintiffs are, therefore, entitled to a judgment against the Railroad Company for all their claims against Bates, Benson & Co. which are not shown to be erroneous.


author: Mekbick, O. J.

text:
    W. Garland v. City of New Orleans.
    By a contract between plaintiff and defendant, the former bound himself among other thing» to put the shell roads of the city in good repair within sixty days thereafter. It was stipulated that the contractor should be deemed to be in default by the mere act of his failure in any particular, and the City Council was so authorized to declare it, without applying to a court, &c , &c. More than a week having passed, and the plaintiff not having commenced work, the City Surveyor reported the fact to the Board of Assistant Aldermen, and advised that-the oontract be declared forfeited. The advice was not immediately acted upon, and plaintiff began the work, and before the sixty days had elapsed put most of the roads in repair. The City Council then declared the contract forfeited, and plaintiff brought suit for damages. Held: That by the the terras of the contract the city had the right at any time to declare it null for neglect on the part of plaintiff. But H was not competent for the city, after having been notified of the negleot of plaintiff to commence the work, subsequently, to stand by and see him prosecute the work without objection, and then insist upon such delay in the commencement as a forfeiture. The Counoil should have acted promptly when notified of the neglect. The plaintiff did not comply fully with his contract, he has, therefore, no action for damages against the city, he is only entitled to compensation for the benefit which the city derived from his labor.
    The obligation of the contractor was to complete the work within sixty days from the date of the contract, and not from the commencement of the work.
    APPEAL from the Fifth District Court of Now Orleans, Augustin, J. Tried by a jury.

      Purvis & Fugué, for plaintiff

      J. J. Miehel, for defendant and appellant.
   Mekbick, O. J.

The plaintiff, by a contract entered into with the eity of New Orleans on the fifth day of May, 1866,' covenanted to keep the shell roads of the city in repair for a period of three years, for the annual compensation of seven thousand two hundred dollars. By the specifications which were embodied in the contract, the roads were to be delivered to the contractor in whatever condition they might be when he should begin the work, ard were all to be put in good repair, in the best workman-like manner, and with sound and clean shells of the best quality, within sixty days thereafter. The contract contained a clause authorizing the City Council to. declare it void for any neglect on the part of the contractor without applying to a court or indemnifying the contractor, and it was further declared, that the contractor should be deemed to be in default by the mere act of his failure in any particular without it being necessary to put him in default, under Art. 1605 of the Civil Code. The work done was to be paid for monthly.

Mr, Filié, the City Surveyor, having seen no attempt on the part of the plaintiff to commence the work, on the thirteenth day of May addressed a letter to the Board of Assistant Aldermen, advising that the contract be declared forfeited, on acoount of Garland's neglect to commence the work. This letter was not immediately acted upon by the Council, and Garland was suffered to commence the work, and during May and June he put most of the roads in such repair that they could be used without inconvenience.

On the 11th day of July, the Council declared the contract null and void. The city refused to pay monthly for the work done by the contractor, on the ground of his alleged non-compliance with the contract.

This suit is brought to recover twenty thousand dollars damages for the alleged broach of the contract on the part of the city. The case was tried by a jury, and resulted in favor of the plaintiff for $2500 damages. The defendant has appealed.

The appellant complains of the charge of the Judge to the jury, to which he excepted, and, furthermore, that the city was justified in declaring the contract abandoned, and, therefore, the verdict ought to have been for defendant.

As we shall express an opinion upon the right of the city to declare the contract abandoned, we do not deem it important to consider the defendant’s bill of exceptions.

The plaintiff) by subscribing the contract, which he did, placed it in the power of the city to declare the contract void for any neglect on his part. He assumed the obligation of a strict compliance with his engagement, with a knowledge that any failure on his part was a forfeiture of his contract without any demand or notice from the city further than that it had, through the proper authorities, put an end to the same. But it was not competent for the city after having been notified of the neglect of the plaintiff to commence the work, subsequently, to stand by and see him prosecute the work without objection, and then insist upon such delay in the commencement, as a forfeiture. If they had intended to insist upon that ground of forfeiture they should have acted promptly when notified of the neglect.

We think, however, that at the time the contract was really declared aban-' doned in July, that the plaintiff had not complied with the stipulation in the contract to have the roads in good repair within sixty days from the commencement of the work, that is the date of the contract. For we understand the delay to commence running from the date of the contract. It was in the specifications under which the proposals were received that it was mentioned, that the work was to be in good repair within sixty days from the time the contractor should begin the work, and this was subsequently recited in the contract. If the term “ begin” were at the option of the contractor, the work might have been delayed for months, and the public might have suffered the greatest inconveniences without its being in the power of the city to declare the contract forfeited, or to cause themselves the necessary repairs to be made at the expense of the contractor. We think it is clear that at the expiration of the delay of sixty days from the date of the contract the contractor had not put “ the whole of” the shell roads in the best workmanlike repair with sound and clean shells of the best quality, as he had bound himself to do. The city were authorized, therefore, by the contract, to declare it at an end, aijiájhg_plaintiffiias no right to claim damages of the city for the loss of the profits which he might have made if he had complied with his engagement. But this does not prevent the plaintiff from recovering of the defendant for the benefit which the city derived from the plaintiff’s labor. The city, although not bound to indemnify the contractor for losses upon the outlays for conducting the work, such as the carts, horses, and vessels he may have bought, nevertheless is bound to pay for so much of the contractor’s materials and labor as have actually been taken possession of by the city, and to the extent of which the city has really been benefited. s

On looking into the record, in order to ascertain the value of the work done, we are unable to find sufficient data for a safe judgment upon this branch of the case. The verdict of tlfe jury evidently embraces as one of its elements the supposed loss of profits of the plaintiff on the contract. We have just shown that this cannot bo allowed. We think that justice requires that the case should be remanded in order that the plaintiff may have an opportunity of showing what was the real value to the city of the labor and materials furnished upon the shell roads by him, under his imperfect execution of the contract, up to the time it was declared void by the city.

It is, therefore, ordered, adjudged and'-decreed by.'the court, that the judgment of the lower court be avoided and reversed, and' that the case be remanded for a new trial to be conducted in conformity to the foregoing opinion, 1 he plaintiff paying the costs of the appeal.


author: Vooriiies, J. Spofeord, J., Merrick, O. J.,

text:
    State v. F. Brunetto.
    Dying declarations of the deceased are admissible, although given in the absence of the prisoner.
    Counsel for the prisoner asked the question of a witness who had testified as to the dying declarations of the deceased, “ From your knowledge of the character of the deceased, and from her conduct on the occasion of the conversation held with you by her, do you think she was under a religious sense of her responsibility to her Maker ? ” Held,: That the question was inadmissible.
    The Supreme Court has not jurisdiction to revise the judgment of the District Court refusing a now trial, the motion for which was based on the misconduct of the jury — for in criminal cases the jurisdiction of the Supreme Court is restricted to questions of law, and the conduct of the jury involved matters of fact.
    APPEAL from the First District Court of New Orleans, Hunt, J.

      H. Warren Moise, Attorney General, for the State..

      ITill and B. F. Tap-pan, for the appellant.
   Vooriiies, J.

The defendant was found guilty of murder, without capital punishment, and was sentenced for life to the State prison.

The case comes up on two bills of exceptions and two motions for a new trial.

The first bill of exceptions was taken to the ruling of the court below in favor of the admissibility of the dying declaration of the deceased, although given in the absence of the prisoner.

The reason for the rejection of heresay evidence is, that the party against whom it militates has not had the benefit of a cross-examination, and because the declarant did not speak under the sanction of an oath. An exception to this rule obtains, in cases of dying declarations, the sense of impending dissolution being considered as offering the necessary guarantees that the declaration is in accordance with the truth. Although it is indispensable that the whole declaration be given in evidence, if is not required that the party accused be present at the time it was given. Any other construction of the law would have the effect of shutting out this species of proof; for if the prisoner were present, it would bo unnecessary that such declaration should be in extremis in order to determine its admissibility in evidence. The defendant’s objection was, therefore, properly overruled.

The District Judge properly overruled the following question, propounded on behalf of the defendant to one of the State witnesses :

“ From your knowledge of the character of the deceased, and from her conduct on the occasion of the conversation held with you by her, do you think she was under a religions sense of her responsibility to her Maker ? ”

Witnesses are to be examined on the facts of the case; and are not expected to give their opinions on the conclusions, which it is the provinoo of the court and jury to draw.

The first motion for a new trial is based on the allegation, “ that while the jury were deliberating upon a verdict in this case, and beforo they agreed to and rendered their verdict in court, they were permitted to intermingle, converse and eat with and at the same table with one Mr, Jlinohs, and several other gentlemen, whose names are unknown to affiant.”

The second, or rather amended motion for a new trial, states: “ That since the filing of the original motion for a new trial in this case, new and material facts have been discovered, which are as follows: that while the jurors were out and were considering their verdict, brandy and other spiritous liquors were drank by several of the jurors; and that also at dinner said jurors partook freely of wine; and that after dinner a bottle of Champagne wine was bet by two of the jurors upon the price of the dinner, which said wine was drank by the jurors and the Deputy Sheriffs; and that the said dinner was paid for by the State.” The District Judge allowed the amendment, for the purpose of adding as an additional ground for a new trial, “ the above irregularity and misconduct of the jury as above set forth.” In truth both motions allege the irregularity and misconduct of the jury, with this difference, however, that the amended motion is more explicit on the subject. They both present for adjudication questions of fact, and, although they are accompanied by the testimony taken down by the Clerk, we cannot decide whether the conclusions of the District Judge were correct or erroneous. Our appellate jurisdiction in criminal matters is limited to questions of law alone; and it has been repeatedly decided that, as regards continuances and motions for new trials, this court would not, and could not, interfere with the ruling of the court of the first instance, “ unless brought before it in such a mode as to present for solution an unmixed question of law ;” (State v. Bass, 11 An., 478,) and also “that the only proper mode of bringing the subject before this court, is by bill of exceptions, which will show affirmatively on its face, that the ruling of the District Court was predicated exclusively upon a matter of law, in which the court erred.” 11 An., 422. In the case at bar, there is no bill of exceptions, showing that in the motion for a new trial the court below erred in any question of law, mixed or unmixed; and in the assignment of errors, there is no complaint whatever of any error of law committed to the prejudice of the prisoner; but it is alleged in so many words: “ That facts developed upon the motion for a new trial show the trial to have been irregular, and that the misconduct of the jury vitiated the verdict.” The proof of the irregularity and of the misconduct of the jury, may or may not be satisfactory. With this we have nothing to do; for that is a question of fact, which rests in the sound discretion of the District Judge, and is not subject to our revision; State v. Brette, 6 An. 657, 662; 6 An., 311; 7 An., 532; State v. Tucker, 10 An., 501. Had he decided erroneously any question of law connected with the matter, and had such decision been presented in proper shape before us, we might grant relief. It has already been decided, that the jury are entitled in all cases to necessary refreshments. 4 An. 27. This is a question of law which wo could decide; but what constitute necessary refreshments ? and whether the verdict is or is not to be affected in any given case, is certainly a question of fact, and, as such, cannot bo revised by this court.

It is, therefore, ordered and decreed that'the.judgment of the court below bo affirmed, with costs.

Spofeord, J.,

concurring. In overruling the motion for a new trial the District Judge observed: “that he considered the irregularities in the present case as not of a nature to have influenced, in the smallest way, the mind of the jury in the verdict which they rendered.”

In this I find no error of law presented in a shape to be cognizable by this court. The Judge had the jurors before him, and was not bound by the opinions or testimony of witnesses, disregarding.what he saw with his own eyes. I think he has not made a statement of facts in such a form as to show that his opinion was predicated, as a conclusion of law, from those facts alone. And there is no agreed or admitted statement of Tacts submitted to this court as a basis for solving- the question whether the law infers therefrom a fatal irregularity in the conduct of the jury.

I, therefore, concur in the decree.

Merrick, O. J.,

dissenting. The case of The State v. Tucker, 10 An. 601, appears to have overruled the cases of The State v. Hornsby, 8 Rob. 558, 592, and State v. Desmond and O' Conner, 5th An. 398, so far as those cases might have justified the inference that this court would examine and decide for itself questions of fact in order to ascertain whether the jury who had tried the case in the lower court had or had not been guilty of misconduct.

But I do not understand the case of The State against Tuclcer, as deciding that this court cannot in any case take cognizance of a question of law submitted to the lower court, because the same was mixed with the facts. On the contrary, it assumes that the cases of The State v. Hornsby and The State v. Desmond and O' Conner were correctly decided because the facts were admitted in the Supreme Court, whereas in the case of The State v. Tucker the facts were disputed. 10 An. p. 502.

The Constitution, in limiting- the jurisdiction of this court to questions of law, was not intended to prevent all control on the part of this court over questions of law (which should happen to be mixed with facts) submitted to the determination of the District Judge without the intervention of a jury. But I think it was the intention of the framers of that instrument to allow the accused the privilege of separating every legal question from the fact, and thus presenting it to this court. By allowing the accused an appeal on questions of law, as an incident, it allows him the means of separating the law from the fact and presenting it as a question to this court. On the trial to the jury, the accused can accomplish this by excepting to the Judge’s charge, on all interlocutory questions, by requiring the Judge to state whether he credits the witnesses, or what facts ho considers as established, and bringing them up with the bill of exception.

This is brought about, in some States, by the Judges’ notes at the nisi prixis trials which are reserved for the consideration of the court in bcmlc.

Without this right on the part of the accused, the trials in criminal cases would be necessarily imperfect and there would bo no redress if the District Judge should express an opinion upon the most important question of law, if it should happen to be mixed with any facts however insignificant.

In the case at bar no bill of exceptions was needed. The motion for a now trial is a part of tbo record and speaks for itself. So does the decree overruling the same.

The testimony, which is not disputed by the State, is found by the District Judge. It is as follows, viz :

“The testimony of Deputy Sheriff, Alpuente, shows briefly and in substance that he took the jury, after they had been deliberating for some time in the jury room, to a public house — a restaurat, to furnish them with some refreshments in pursuance of an order of court; that he had engaged for the purpose two rooms connected with one another by a folding door; that he caused dinner to be served up there; that the Deputy Sheriffs and himself, attendant on the juiy, sat at a table in one of the rooms, and the jury sat. at a table in the other room during the dinner; that just before the dinner, each of the jurors had a glass of absynthe and water or anisette; that six bottles of red wine were allowed the jury for dinner, and that a bottle of brandy was brought in by the restaurat keeper, at his own cost, after dinner, with the coffee; about half of which bottle, he believed, was drank by all the jurors. That two of the jurors, after dinner, made a bet about the price of the dinner and referred to him to decide it, and that the loser, by his permission, called and paid for a bottle of champagne, which was drank by the witness and five or six of the jurors.
“ This is the testimony with respect to the drinking.
“ Alpuente, further testifying, said, that the jury were upwards of two hours in the room at the restaurat; that while they were there, they did not deliberate on the case; that he and his assistant deputies did not speak with any juror on the subject of the case; that he had given express orders to his deputies not to speak to any juror on the subject; that he had also cautioned the jurors against speaking to him or his assistants on the subject; that there was no conversation between any of the jury and himself, or any of his deputies, about the case ; that the folding doors between the rooms were open and the jury under his view during the whole time the jury was at the restaurat; that no juror was at all intoxicated; that all the jurors behaved with the greatest propriety; that after dinner, the jurors smoked and walked about the rooms and mingled with the Deputy Sheriffs, and that shortly after, he carried the jurors back to the jury room, where they renewed and continued their deliberations together, until they made up their verdict.
Alpuente further stated that the jury did not separate from one another at any time.
“ This condensed testimony brings to view several irregularities, which must be avoided in the future.
“ The dinner was protracted too long. The deputies should not have remained in the same room with the jury and eat their dinner where they did ■ — there should have been no communication or intercourse other than official between the Sheriff and the jurors, however innocent the nature of that communication.
“The Sheriff should keep the jury within his view, so that they may not separate or engage in any acts foreign to their trust, but he should not be present among the jurors and privy to their conversation; a proper provision should be made for the sustenance and comfort of the jury while employed in the most serious and important office that can be exercised by man ; but that provision should be restricted within the safe and reasonable bounds of temperance and moderation. Betting in the jury room, although, in the instance, not having the least reference to the case before the jury or any influence upon the verdict, is disapproved and reprobated by the court as a practice of a tendency pernicious to public justice.

Reasons given by Judge Hunt for refusing the new trial asked for in the lower court:

“ A motion for a new trial was made in this case on the 22d July, inst., by Mr. Abell, of counsel for the defendant, on seyeral grounds.

“ 1st. That the verdict of the jury is against law and evidence.”

This ground is of a vague and indefinite character and presents nothing for examination.

“ But the court considers the irregularities in the present case as not of a nature to have influenced in the smallest way the minds of the jury in the verdict which they rendered.”

question of law arising therefrom, we are merely doing what every court of error does in a like case, and precisely what is conceded, in the case of The State v. Tucker, may bo done. The facts, therefore, I consider found to our hands, and in considering the

If I read the decisions of this court correctly, the inference to be deduced from them all, is that this court will consider the legal question whenever the record presents it in such a form, that it can be reached without deciding a contested fact in order to arrive at the question.

I think, therefore, we are compelled to decide whether the facts narrated by the District Judge amount to such misconduct on the part of the jury as to require that their verdict should be set aside.

Perhaps, in favor of a beverage of such common use for the table as claret, we ought to presume that the six bottles were so distributed among the twelve j urors as not to disqualify any one of them from giving the accused an impartial and intelligent consideration of every fact in his case, however complicated the facts may have been. But in this case, in addition to the absynthe and anisette, and claret, the jurors were furnished with a bottle of brandy which was partaken of by some of them. The Deputy Sheriff, it is true, presumes it was not all drank, because no brandy was charged, in the bill for the dinner. Still some of the jurors drank of it. To this a bottle of champaign was added, which was drank by five or six jurors.

It is possible that some one juror partook of absynthe, claret, brandy and champaign in proportions larger than his fellows, during the two hours spent over the dinner, and thus that one or more of the jurors were not in possession of that unclouded intellect which the accused had a right to demand. The possibility that this might have occurred, I think entitles the prisoner to a new trial.

The safer rule is to exclude spirituous liquors entirely from the use of the jury in capital cases, and so I understand the current of decisions to tend. See the cases of People v. Douglass, 4 Cowen, 26; Brant v. Fowler, 7 Cowen, 562; Kelly v. Read & Wilson, 15 Johns, 423; Commonwealth v. Roby, 12 Pick. 520 ; Page v. Pelham, 1 English, 535; Gregg v. McDaniel, 4 Harrington, 367; and Jones v. The State, 13 Texas R. 168.

The rule has this merit also, it relieves the court from the trouble of deciding whether the quantity of liquor which a juror has drank, in reference to his constitution and habits, is or is not immoderate.

Mr. Justice Cole concurs in this opinion.

The court is firmly of opinion that the verdict of the jury is supported by ^aw an(^ ov^enoe and ought not to be disturbed.

“ 2d. That the jury were not kept separate and apart during their deliberations, but were permitted to sit at table and eat in company with Mr. Minds and other gentlemen, whose names are to the said Brunetto or his counsel unknown, ana who were not members of the jury, contrary to law and against the instruetiorls of this court.”

This ground will be disposed of hereafter as connected with the ground of of the second motion for a new trial filed in this case.

“ 8. That the court erred in admitting the pretended dying declarations of Mary Jane."

An exception was taken to the ruling of the court on this subject.

The court remains of opinion that the ruling was correct.

See exception.

“ 4. That the court erred in sustaining the objection of the Attorney General to the following question propounded to Bevoile, a witness for the State,

“Prom your knowledge of the character of the deceased, and from her conduct on the occasion of the conversation held with you do you think she was under a religious sense of her responsibility to her Maker ? ”

The opinion of the court on this ground will be seen in the statement of the court appended to the exception on file on this subject.

A second motion for a new trial, or an amendment of the first motion, based on an affidavit of the defendant, was, on leave of the court, made by Mr. Abell and Mr, Taptpan, of counsel for the prisoner, on the 25th July, inst.

The following contains the grounds of the motion:

“ That while the jurors were out and were considering their verdict, brandy and other spirituous liquors were drank by several of the jurors, and that also at dinner said jurors partook freely of wine, and that after dinner a bottle of champagne was bet by two of the 'jurors upon the price of the dinner, which said wine was drank by the jurors and the Deputy Sheriff and that said dinner Was paid for by the State. It is hereby ordered by the honorable court that the defendant have leave to amend his original motion for a now trial, and to add as another cause the above irregularity and misconduct of the jury as above set forth.”

See motion.

The allegations in the motion with respect to drinking, refer, as the court Understands them, to the mere fact of drinking. It is stated that at dinner the jurors partook freely of wine, but it is not expressly and positively averred, that any juror was guilty of any excess, or was rendered unfit by drinking for the discharge of his duty, or that the drinking had any effect on the final result of the deliberations of the jury.

“The testimony of Deputy Sheriff, Alpuente, shows briefly and in substance that he took the jury, after they had been deliberating for some time in the jury room, to a public house- — a restaurat, to furnish them with some refreshments in pursuance of an order of court; that he had engaged for the purpose two rooms connected with one another by a folding door; that he caused dinner to be served up there; that the Deputy Sheriffs and himself, attendant on the jury, sat at a table in one of the rooms, and the jury sat at a table in the other room during the dinner; that just before the dinner, each of the jurors had a glass of absynthe and water or anisette; that six bottles of red wine were allowed the jury for dinner, and that a bottle of brandy was brought in by the restaurat keeper, at his own cost, after dinner, with the coffee ; about half of which bottle, he believed, was drank by all the jurors. That two of the jurors, after dinner, made a bet about the price of the dinner and referred to him to decide it, and that the loser, by his permission, called and paid for a bottle of champagne, which was drank by the -witness and five or six of the jurors.”

This is the testimony with respect to the drinking.

“ Alpuente, further testifying, said, that the jury were upwards of two hours in the room at the restaurat; that while they were there, they did not deliberate on the case; that he and his assistant deputies did not speak with any juror on the subject of the case; that he had given express orders to his deputies not to speak to any juror on the subject; that he had also cautioned the jurors against speaking to him or his assistants on the subject; that there was no conversation between any of the jury and himself, or any of his deputies, about the case; that the folding doors between the rooms were open and the jury under his view during the whole time the jury was at the restaurat; that no juror was at all intoxicated; that all the jurors behaved with the greatest propriety; that after dinner, the jurors smoked and walked about the rooms and mingled with the Deputy Sheriffs, and that shortly after, he carried the jurors back to the jury room, where'they renewed and continued their deliberations together, until they made up their verdict.”

Alpuente further stated that the jury did not separate from one another at any time.

This condensed testimony brings to view several irregularities, which must be avoided in the future,

The dinner was protracted too long. The deputies should not have remained in the same room with the jury and eat their dinner where they did —there should have been no communication or intercourse other than official between the Sheriff and the jurors, however innocent the nature of that communication.

The Sheriff should keep the jury within his view, so that they may not separate or engage in any acts foreign to their trust, but he should not be present among the jurors and privy to their conversation; a proper provision should be made for the sustenance and comfort of the jury while employed in the most serious and important office that can be exercised by man ; but that provision should be restricted within the safe and reasonable bounds of temperance and moderation. Betting in the jury room, although, in the instance, not having the least reference to the ease before the jury or any influence upon the verdict, is disapproved and reprobated by the court as a practice of a tendency pernicious to public justice.

But the court considers the irregularities in the present case as not of a nature to have influenced, in the smallest way, the minds of the jury in the verdict which they rendered.

It has been held by the Supreme Court, that; “Every irregularity will not vitiate a verdict, but those only which are calculated to produce an impression on the minds of jurors, and influence the verdict which they are to render, (2 Sumner, 83); and courts will satisfy themselves that such has been the tendency of the acts complained of, before- new trials will be granted on the ground of misconduct on the part of the jury.” The State v. Kennedy, 8 Rob, R. p. 593.

This principle has been expressly applied where the exception was that tho jury drank ardent spirits at their meals during the progress of a trial, “ a fair and unbiassed expression of opinion is what is required, and any little misconduct, which is shown could not have been attended by bad consequences, will not vitiate a verdict.” 4 Humphrey’s R., Stone v. The State, p. 88. Authorities abound on the same point and may be found cited in 1 Arch. p. 178, 21.

The object of the law is a fair and impartial trial by a jury of the country, and this object has been clearly attained in the case under consideration.

The evidence shows that the jurors were faithfully kept together, and that no one took part in their deliberations.

The last in the series of the defendant’s allegations is, that the dinner which the jury eat was paid for by the State. Nothing was said on this matter by the counsel of the defendant in their remarks to the court. The allegation is true, and the fact is as it ought to be. It is just and proper that the State should furnish necessary nourishment to a jury engaged in the administration of justice and confined for many hours deliberating upon the important issues submitted to their judgment.

The State is concerned only for justice; and the duty of the jury is to find a just verdict according to the law and the evidence, whether that verdict is favorable or unfavorable to the party accused. The court cannot conceive how the payment by the State of the expense of a dinner can influence the mind of a juror to the prejudice of one under trial.

The payment for the dinner was in conformity with well established usage.

The motion for a new trial is denied.


text:
    Shaw & Co. v. A. Grant, sr., & A. Grant, jr.
    The oases of Shct/LO <& Zunts v. Knox and McCutchon, Howell S Co. v. Wilhvnson, 12 An. pp. 41 and 488, reviewed and the principles of those cases re-afllrraed.
    The Act of 1848, p 44, gives a privilege for necessary supplies, furnished to any farm or plantation, on the product of the last crop and the crop at present in the ground. Money advanced cannot be considered as the necessary supplies of the plantation in the sense of the statute; although it may be exchanged for necessary supplies, it does not give the commission merchant or any other person who has furnished it a privilege upon the crop in the hands of third persons. It is otherwise as to the crop which has actually been shipped to the commission merchant.
    The payment of the planter’s drafts in favor of his laborers and workmen does not subrogate the party so paying to the privileges of the laborers and workmen.
    The law gives the furnisher of necessary supplies for a plantation a privilege upon the crop at present in the ground. But that privilege cannot be extended to a crop yet uncultivated, and towards which nothing has been done.
    APPEAL from the District Court of the Parish of Plaquemines, Rousseau, J.

      K. R. Ogden & J. A. Rozier, for plaintiffs and appellants.

      K. Rawle, for defendants.
    •
   Merrick, C. J.

The appeal in this case was brought up by the appellee, Alexander Grant, sr., who has filed an answer to the appeal praying an amendment of the judgment in his favor. It is conceded by appellant’s counsel, that this case as to Alexander Grant, sr., (who was a purchaser of the “Nain” plantation at Sheriff sale) is governed by the principles enunciated in the two cases of Shaw & Zunts v. Knox and McCutchon, Howell & Co. v. Wilkinson, lately decided by this court, if those cases can be considered as law. 12 An. 41 and 483.

The correctness of those two decisions has therefore been questioned in this case, and the court has been earnestly requested to review them and declare the same overruled,

In the case of Shaw & Zunts v. Knox wo said :

“ The pajunents made by them (the plaintiffs) for debts due by Knox, even though they may have been contracted for supplies, can be considered only as so much money advanced; and this remark will apply as well to payments made for labor and the price of machinery, as to payments made to furnishers of supplies. Subrogation by operation of law 'does not take place in favor of one who pays a privileged debt in the absence of any obligation so to do, and it is not pretended that the plaintiffs have acquired any right by conventional subrogation.”

We see nothing in these remarks which requires modification or even inspires a doubt of their correctness.

Privileges are strieti juris, as the lawgiver has himself declared. They “ can be claimed only for those debts to which it is expressly granted in this Code.” C. C., 3152; 3 L. R., 158. They cannot be extended to analogous cases. 18 L. R., 72; Hoffman v. Lawrens et als., 6 An., 113; Guion v. Brown, 2 An. 774, 10 An. 429.

The Act of 1843, p. 44, gives a privilege for neaessan'y supplies furnished to any farm or plantation on the product of the last crop and the crop at present in the ground.

Is the draft which the merchant has paid, or the promissory note which he lias taken up a necessary supply furnished, the plantation ? It seems to us that it cannot be so considered in any reasonable sense. What does the merchant furnish the planter when he pays his draft or takes up his note? He advances money, and so the plaintiffs considered it in this case, for they have (besides interest) charged the defendants with two and a half per cent, for advancing, amounting to $252 78 for such commissions. Now, as money cannot be considered as the necessary supply of the plantation, in the sense of the statute, although'it may be exchanged for necessary supplies, it does not give the commission merchant or any other person who has furnished it a privilege upon the crop in the hands of third persons, although it is otherwise as to the crop which has been actually shipped to the commission merchant. C. C., 3214; 3 An., 82; 7 An. 336; Story on agency, § 364.

We have been referred to the case of Farrar v. Rowley, 8 An., 277, as being-in conflict with these views. Whether the court would now feel disposed to go as far as it did in that case, it is not necessary to determine. Certain it is, we do not think the doctrine can be extended beyond the very case the court then had before it. The term “supplies,” under Art. 3204 C. C., relative to ships, has been held not to cover money'advanced to purchase materials for a vessel, although both words “materials” and “supplies” are used in the Article. Grant v. Fiol, 17 L. R., 158; 19 L. R., p. 1; 4 An., 10, Hyde v. Culver.

But it is said, that by the payment of the drafts in favor of the laborers and workmen the plaintiffs are subrogated to their rights, because laborers have a privilege superior to that of the furnisher of supplies, and therefore, subrogation takes effect by operation of law. We are pointed to Art. 8181 as giving-such privilege. We do not think the Article in question, supports the position for which it was cited. The class of persons therein named is “ clerks, secretaries and other agents of that sort.” 3 An., 498; 8 An., 42.

That the payment of a privilege debt does not ordinarily subrogate the per. son who makes payment to the rights of the creditor, is a proposition which we are not permitted to doubt. The Code is express and the decisions are uniform. C. C. 2156, 2157; Brother, Syndic v. Constance Fagot, Opinion book 26, p. 361; 9 R. 477; 5 R. 415; 7 N. S. 602; 4 An. 576; 11 An. 294. And so it has been held as to the payment of debts for supplies to vessels. 19 L. R., 9; 17 L. R., 158, and 2 Rob., 36. We see no reason to distinguish the case at bar from those cases, and we are not advised of any other legal ground upon which a different conclusion might have been arrived at in the case of Shaw & Zunts v. Knox.

We are next informed that the case of McCutchon, Howell & Co. v. Wilkinson is not law, the present case being, as plaintiffs’ counsel admit, precisely analogous to that case.

If we understood the oral argument of plaintiffs’ counsel correctly it is, that in order to judge of the question whether the supplies are to attach to a crop, or not, it is only necessary to look at the calendar month in which they were furnished. Eor instance, if they are furnished in January, they drag after them the continuous supplies of the preceding year and attach with such preceding supplies to the crop of that year, although they were supplied to take off the crop of the preceding year alone, and were not furnished for, nor contributed to aid in making the crop of the new year to which they attach. And if the last article in the account was furnished in December, the whole account would apply to that year alone.

If privileges are stricti juris, there is still greater reason so to consider them when it is sought to enforce them against innooent third persons.

The law gives the furnisher of necessary supplies for a plantation a privilege upon the crop at present in the ground. How can we extend it to a crop which has not yet been planted or which remains yet to be cultivated, and towards which nothing has been done ? To do so, would be. to legislate to the prejudice of third persons without notice, as will be apparent by a few examples.

The factor (as in the present case) furnishes the supplies for the year 1854. On the 31st of Deoember, he has not received a hogshead of sugar or a barrel of molasses of the growth of that year. In January of 1855 he sends to the. planter a few barrels and hogsheads which aro filled with molasses and sugar, and the whole of the crop is then shipped to him. Now, because he sent a few articles in January, to contain part of the crop, he is to have the right, as wé understand plaintiff’s argument, to apply the whole of the crop to his general advances of the preceding year; to dissect that account, take the supplies therefrom, add them to the items of supplies for 1855, and hold the whole as a privilege claim over the crop of a third purchaser of the plantation who has entirely cultivated the crop hims’elf and whose own factor has furaished the supplies for the ci'op which he has made!

Take another example : a cotton planter has a few bales of ungathered cotton to pick in January. His factor sends him baling sufficient to put it up. The whole is then sent to such factor. Now, according to plaintiff’s theory, because the single item of baling was sent in January for the crop grown the preceding year, although gathered afterwards, the factor is to have not only that crop, but a privilege upon the next for which another merchant has furnished the supplies!

An overseer has been employed by the month to take off a sugar crop ; because his labor is not completed on the thirty-first day of December, he is to have the right to share equally with the overseer who makes the next crop and to prime the faotor who has furnished the supplies for it.

An overseer remains over a day or two after the first of January either to complete gathering the crop or to hold the place until his successor comes, he has the right to share equally with the overseer who has made the new crop and has a privilege superior to the furnisher of supplies.

Suppose again a planter has shipped his entire crop in December and has commenced the cultivation of his new crop. His factor furnishes him in one lot, on the 31st of December, all the pork or corn he needs for the coming year in order to make and gather his new crop. Would his privilege be defeated because the item was furnished in the year 1854 ? Would it not be a sufficient answer to say and prove that the provisions were furnished for the crop of 1855 and were actually used and consumed in making it ? If so, then in a controversy as to a privilege for supplies where the property of third persons is sought to be subjected to the privilege, an inquiry may be made as to the condition of the crop at the time they are furnished and the day in the calendar will not be conclusive upon the parties.

These and other examples which may be given show that the rule established in the case of McCutchon, Howell & Co. v. Wilkinson (that where the supplies are clearly shown to have been furnished for taking off a particular crop that they cannot attach to the next crop, and consequently draw after them as a privilege the supplies of the preceding year) is not only within the letter but the spirit of the law in question and is a reasonable interpretation of the same.

But we are informed that this case is in direct conflict with the cases of Johnson v. Kennedy, 3 Rob., 216, Welsh v. Shields, 6 Rob. 484, and Farrar v. Rowley, 3 An., 277. In the first of these cases, the overseer had acted as such upon the plantation of the deceased for the year 1839 and some months in the year 1840. In the absence of all proof to the .contrary, the court might well suppose that he was employed to make the crop of that year. In the case of Welsh v. Shields, the overseer was on the plantation at the time it was bought by Ban-row, and the latter continued him as such to cultivate the crop which the court say was “then growing,” 6 Rob., 486. In the case of Farrar v. Rowley, the overseer had been on the place in that capacity for eight months, and it is hardly possible to suppose that he was employed in cultivating the crop upon which he claimed his privilege. It is thus apparent that these cases are quite different from that where it is expressly shown that the services ww-e not rendered towards the cultivation of the crop upon which the privilege is claimed, and where a third person has purchased the property for a full price and without notice.

Again, there would be just as much reason in calling that portion of the crop of 1854 which remained ungathered in the commencement of 1855, the crop of 1855, as there would be to consider the services of those employed in taking it off as services of that year. If they furnished supplies for or were employed to take it off, their privilege ought to be considered extinguished when they have received the full price for which it was sold.

In the case at bar, the plaintiffs did not receive any portion of the crop until after the first day of January. The only items in the account after that date which might be allowed as a privilege are two items for corn, items for bi-sulphite of lime and several (much the greater part) consisting of barrels and half barrels for the molasses. It appears by the account current that these barrels and half barrels were with others returned filled with the products of the crop to their factors.

They received from the sales of the sugar and molasses $6,745 25, it being more than sufficient to satisfy and extinguish all the privilege claims which we find charged in their recount. Their counsel admit that the supplies for which they claim a privilege were furnished towards taking off the crop which they have received, and that at the time they were furnished nothing was done towards the new crop, although they assert the germs of it were in the earth in the form of stubble cane.

They have received back what they have furnished, and equity uncontrolled by positive law does not allow them to gather where they have not planted and prosper by the labor and expenses of others.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to the said Alexander Grant, sr., that the sequestration be set aside and plaintiffs’ demand against him be rejected, the plaintiffs paying the costs of both courts.

Spofford, J., took no part in this decision.


author: Spoitokd, J.

text:
    City of New Orleans v. Bernard Turpin.
    The Legislature, besides levying taxes for the support of the State Government, may delegate to the several parishes and municipal corporations of the State a similar power of taxation for the support of a local government and police within their respective limits.
    There is no constitutional or legal provision inhibiting the taxation of the profession, calling or business of an auctioneer.
    The license granted to auctioneers by the Auditor of Public Accounts and their quasi official character involve no contract exempting them from, taxation.
    The power of taxing such a calling having been delegated to the city may be exercised by it, although the State has not chosen to tax the same calling for the support of the State Govern-
    APPEAL from the Second District Ooui't of New Orleans, Morgan, J.

      Lamlle & Morel, for plaintiff.

      Qlarlce & Bayne, for defendant and appellant.
   Spoitokd, J.

This case presents the question of the constitutionality and legality of an ordinance of the city of New Orleans, levying a tax of one hundred dollars per annum upon each person pursuing the profession or calling of an auctioneer.

Article 123 of the Constitution provides, that “the Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”

The Legislature, besides levying taxes for the support of the State Government, may delegate to the several parishes and municipal corporations of the State a similar power of taxation for the support of a local government and police within their respective limits.

By the Act of March 20th, 1856, sec. 102, p. 158, it was declared, “that the city of New Orleans shall have power to levy taxes, commonly known as licenses, upon trades, professions, callings and other business carried on, and upon carriages, hacks, drays, carts and other vehicles, used is said city, and said taxes, commonly known as licenses, laid as aforesaid, shall not bo construed to bo a tax on property, within the meaning of sections 30, 38 and 42 of this Act.”

The profession, calling or business of an auctioneer is, then, taxable by the city, unless there is some constitutional or legal provision inhibiting such taxation.

No Article in the Constitution has been pointed out or is known to us which prohibits the exercise of such a power by the city under an authority delegated by the Legislature.

The Act of March 12th, 1855, p. 106, “Relative to Auctioneers,” has been largely commented on, as implying an exemption for them from parochial or municipal taxation.

It is contended that they are State officers, and, as such, exempt from this species of taxation. They are quasi officers; but they are neither elected nor appointed ; they receive no commission from the Governor, and are paid no salary; any citizen of the State may voluntarily become an auctioneer for the parish in which he is a qualified voter, upon giving bond and. security, and taking the oath prescribed by Article 90 of the Constitution.

They are required to take out an annual license from the Auditor of Public Accounts ; but this is to secure the payment of certain duties upon auction sales, to aid the State revenue; it does not debar either the State or the political corporations to whom it may delegate its powers, from taxing the calling or business carried on by auctioneers.

Attorneys-at-law are quasi officers; they receive licenses to practice their profession: but we have recently held, that, notwithstanding, they may be taxed annually for pursuing their profession. Their license and their quasi official character involve no contract exempting them from such taxation; the title and the license granted to auctioneers by the Auditor of Public Accounts imply no greater immunities. State v. Waples, 12 An. 342; State v. Fellowes, 12 An. 344.

Because the State has not chosen to exercise its power of taxing this calling or profession for the support of the State Government, it does not follow that the city cannot exercise the power specially delegated to it by the State.

Judgment affirmed.