author: Btjchanaíí, J.

text:
    J. C. Miller & Co. v. Steamer S. F. J. Trabue et al.
    Paymont must be imputed to that debt which the debtor bad most interest in discharging. The action of any of the sureties with their principal, cannot bind the creditors to whom the purchase price is due.

      Appeal from the Fourth District Court of New Orleans, Price, J.

      J- B. Cotton, for plaintiff. G. L. Bright, for defendant and appellant.
   Btjchanaíí, J.

The steamer Trabue having been sold in execution of various judgments against her, by consent of parties, instead of one twelve months bond for the total price of adjudication, five distinct bonds of the purchaser, with different sureties, and for different amounts, were taken. The surety on one of those bonds now claims a fund in this court, proceeding from a policy of insurance effected by the Sheriff and transferred to the plaintiffs in execution; on the ground, that the sureties on the other four twelve months bonds, had, subsequently to the signing of said bonds, and in virtue of a conveyance of the Trabue to them by the purchaser at sheriff’s sale, assumed upon themselves the whole liability of those bonds. ’

This claim of the surety is put by his counsel upon the civil law doctrine of imputation of payments; according to which, the debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge; and when the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those which are equally due. 0. 0. articles 2160 and 2162. And in support of the imputation in the present instance, to the bond of his client, the learned counsel has referred us to the report of a case decided in the Supreme Court of Maine, to be found in the 6th Law Reporter, pages 501 to 506, of which the doctrine is thus stated: “ Thus a payment is applied to the discharge of a debt, for which a surety is bound, rather than to acquit what the debtor is singly bound for, without giving any security. ”

The same doctrine is found hi Pothier on Obligations, 530, 5th corollary. ‘ ‘ The imputation, says Pothier, is made rather to the debt for which the debtor has given security than to that which he owes simply-”

In the present case, the difference in the respective positions of the principal and sureties in the different bonds given for the price of the Trabue, is a difference created by the acts and arrangements of the parties obligors to those bonds, since they were given among themselves, and without any privity of the plaintiffs in execution, the obligees in those bonds.

We agree with the District Judge, in his second ground for judgment, that “the action of any of the sureties with their principal, cannot bind the creditors to whom the purchase price is due.”

After applying the whole proceeds of the policy of insurance to the satisfaction of plaintiffs’ executions, there will remain still due and tin-paid on the purchase price of the Trabue a balance of about eleven thousand dollars.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


source: Caselaw Access Project

author: Vooehies, J. Mebbiok, C. J.,

license: Public Domain

text:
    The State v. John Mulrolland.
    Although tlie rule is that evidence of the commission of a feltuy distinct from the one charged in the indictment, is inadmissible, yet an exception lies when the purpose is to prove that the prisoner was actuated by malice.
    The testimony of a witness before an inquest, may be admitted to discredit his testimony at the time of trial.
    Confession is admissible in evidence where it has been elicited by questions put by a person having no authority, as whore the party asking them is a police officer.
    Appeal from the First District Court of New Orleans, Hunt, J.

      A. P. Field and É. FUleul, for appellant. T. G. Semines, Attorney General, for the State.
   Vooehies, J.

The prisoner was sentenced to death for the crime of murder.

On appeal he asks the reversal of this judgment on several grounds, which are brought up by bills of exception.

1. The Attorney General, in the court below, propounded to a witness the foEowing question:

“What conversation took place between the prisoner and said Condon as to the manner in which the said Condon received his wound, and by whom inflicted? ”

The party killed was an individual by the name of W. O. Somers; and Condon, the quarter-master of a steamship, was wounded whilst attempting to effect the arrest of the prisoner. The latter objected to the question above on the grounds:

1st. 1 ‘ That it was hearsay and irrelevant testimony, raising a collateral issue and tending to create a prejudice in the minds of the jurors against the prisoner.

2d. “That the stabbing of Condon was a distinct felony.”

The Attorney General stated that his object was two-fold, — to prove a tacit confession on the part of the prisoner, and to show malice; that for that purpose, and the evidence being part of the res gestm, the objections raised against its inadmissibility, were without foundation.

The District Judge allowed the question to be propounded; hut, the .answer being deemed unsatisfactory, the counsel for the State on the spot requested the Court to inform the jury that the answer was not properly before them. This was complied with; and the Judge, in his' ■charge, subsequently reiterated the instruction.

We think the question was a proper one, the District Judge being sat-* defied that the matter to be elicited by it formed part of-the res gestee* Furthermore, although the rule be that evidence of the commission of a felony distinct from the one charged in the indictment, is inadmissible, yet an exception lies when the purpose is to prove that the prisoner was actuated by malice. 3 An. 612, State v. Patza; 12 An. 382, State v. Rohfrischt.

When the commission of both offences are closely linked or connected, as, for instance, when upon the consummation of the first, and whilst being hotly pursued, the prisoner, to avoid capture, commits the second offence, — it is difficult to perceive why evidence of the whole transaction should not be legal, notwithstanding two distinct felonies have thus been perpetrated. Roscoe, Evid., p. 82.

The objection that Condon’s declaration was merely hearsay, is of no weight; for the question related to a conversation between him and the prisoner. I Greenleaf, ?¿ 199; State v. Johnston, 10 An. 456.

2. Another bill of exception raises the question of the legality of ad: mitting the testimony given by' a witness at the inquest held by the Coroner, for the purpose of discrediting him before the jury.

The defendant’s counsel bases his objection on the ground that the accused is not present when the inquest is held, and that he has no opportunity to cross-examine the witnesses. If the credit of a witness may be impeached by proof that he has made statements out of court, contrary to what he has testified at the trial, there can be no difficulty in admitting, for that purposo, the examination reduced to writing and subscribed by witnesses interrogated on the inquest. Such examination, however, is not evidence against the prisoner, but is intended merely to discredit the witness, who at the trial, and previously, may have made contradictory statements, in such matters as are relevant to the issue. Greenleaf, Evid. $ 462. Hence it is not necessary that the prisoner should have had an opportunity of cross-examining the witness.

3. The last bill of exception presents the question “whether a police officer has the right to ask a qitestion of a prisoner in his custody.”

In their brief the defendant’s counsel state: “This evidence of the police officer, having the prisoner in charge and bringing him to jail, ought not to have been received, without the State having first negatived any promise or inducement held out by the police officer; before receiving the admission of the prisoner in evidence, the Judge must require evidence that the confession is free and voluntary.”

We will here observe that nothing of the kind is to be found in the record. The statement of the District Judge, which stands in lieu of the lost bill of exception, does not even allude to the objection that the admission was not free and voluntary; this ground of complaint consequently is not before the Court.

Upon the question properly before us the authorities are clear. “A confession, says Roscoe, p. 45, is admissible in evidence, where it has been elicited by questions put by a person having no authority. Wilde’s Moo. C. C. 452, — ante id. 40; so where the party asking them is a police officer.”

The counsel for the accused states in his brief that the State witness McMullen committed suicide on the very day that sentence of death was passed on the prisoner; and, in this connection, he makes a strong appeal to this court in behalf of his client. This circumstance may have its weight with the Executive, with whom is vested the pardoning prerogative; but it is of no avail before a tribunal, whoso jurisdiction in criminal matters is limited by the Constitution to questions of law.

Judgment affirmed.

Mebbiok, C. J.,

concurring. The question propounded to the witness McMullen in regard to what conversation took place between the prisoner and Condon as to the manner in which he, the said Condon, received his wound and by whom it was inflicted, was, I think, illegal for one of the purposes offered, and legal for the other purposes.

The question was propounded to prove facts assumed to form part of the res gestee and to prove ferocity and malice.

The Attorney General'stated that he expected to prove by the declaration made by Condon in the presence of the prisoner and not denied by him, that-while the witness McMullen was in hot pursuit of the prisoner, he the prisoner rushed on board the steamship Habana, and Condon the quarter-master in attempting to stay the flight of the prisoner and to arrest him, was stabbed by him, and he immediately jumped into the coal boat alongside and concealed himself whore ho was a few minutes after-wards found.

Testimony (so the bill of exception informs us) had already been introduced tending to prove that the defendant had stabbed the deceased and immediately fled to said steamship Habana lying at the levee but a short distance from the scene of the stabbing, say about forty or fifty feet, and had passed through the steamship and jumped into a coal boat alongside of said steamship, where he was found a few minutes afterwards by the witness McMn-llsii; and the said witness having so found the prisoner, immediately brought him on board the steamship in the presence of William Condon who was bleeding from a recent wound or cut, and the witness confronted the prisoner with the wounded quarter-master.

Thus it will be perceived, that had the tacit confession existed, which it was hoped the question would elicit, it would so immediately have followed the fatal blow given to W. O. Somers and been so connected with the flight of the prisoner, as to be considered a part of the ras gesta’.

It was therefore legal evidence. It tended to identify the prisoner and inferentially to show malice by showing a consciousness of guilt by resorting to such extraordinary and desperate means to escape.

But whilst the testimony was legal as forming a part of the res gesta; and inferentially to show malice, it was inadmissible to prove ferocity.

The question in all cases of homicide, under the certainty of'proof required by our law, is, did the accused inflict the mortal wound, or administer the poison, or the like? — Not, is he an evil disposed man, or a ferocious man, for these and the like questions go to the character of the accused which in general is not the subject of inquiry before the buy-

Now, suppose the State had simply offered the testimony for the purpose of showing the res gestee and inferentially to show malice in the accused, and the same or other illegal answer had been given by the witness: would it have been error when the answer was immediately waived by the State, and the Court directed the jury to disregard it, and informed them it was not evidence? Should it be in the power of a witness by an illegal answer to a legal question to render abortive the most formal and solemn proceedings in a criminal cause V These questions answer themselves. ■ •

Again, has the discarded answer to the question ashed by the Attorney General prejudiced the accused more than it would have done if he had propounded the same question merely to show the res gestee and prove malice, or the court had received it for those purposes only? I cannot say that it has, and consequently I cannot say that the Court erred even assuming that the momentary reception of illegal testimony under an illegal examination of witnesses, is an error which cannot be cured by the subsequent withdrawal of the same by the State and the explicit charge of the Judge to the jury to disregard the evidence.

In regard to Hobsden’s testimony, the examination before the Coroner was admissible to impeach the witness; it was a question for the jury to say, whether the testimony before them was in conflict with the general tenor and principal facts of McMullen’s testimony'which he, Hobsden, had “in the main corroborated before the Coroner.

I also concur with my colleagues on the other questions considered in this case.


author: Duffeu, - J.

text:
    Mrs. Widow Nixon v. Mrs. B. Piffet et als.
    TIjo Act of 1828 repealed the whole body of the Spanish laws which remained iu force after the promulgation of the Code of 1808.
    Subsequent laws do not repeal former ones by containing different provisions : they must be contrary.
    Husband and wife may by their marriage contract, make reciprocally, or one to the other, or receive from other persons in consideration of their marriage, every kind of donation, according to the rules and under the modifications prescribed in the title of donations inte)’ vivos and mortis causa.
    As the laws of Spain remained in force m Louisiana after the adoption of the Code of 1808 and until the repealing Act of 1828, a donation propter nuj)lias or amts is not included in the dower.
    Appeal from the Eifth District Court of New Orleans, Eggleston, J.

      P. Souli, for plaintiff. Durant & Hornor, for defendants and appellants. Hitnl & Denigre, for Rocliereau and Holmes.
   Duffeu, - J.

The defendant is appellant from a judgment of the District Court, decreeing a certain lot of ground, situated in the city of New Orleans, to the plaintiff, as her dotal property.

It appears, from the pleadings and the evidence, that John Nixon, on the 21st of September, 1816, made by public act, to the plaintiff, in view of their contemplated marriage, a donation of the property iu controversy.

The act of donation contains, among others, the following clauses:

‘ ‘ The said donor doth declare further, that the foregoing valuation of the property is made, only with a view of ascertaining the value of the same, and not to transfer the property to him in kind and leave him responsible for the amount thereof. And the said donor doth moreover declare that he reserves to himself the right of reversion of the said property back again to him, or his heirs, in case he should survive the donee, or her descendants, if any she should have. ”

The donor and donee were soon thereafter joined in wedlock.

John Nixon died June.7th, 1849, and this action was commenced March 8th, 1859.

It also appears that, on the 13th of March, 1836, John Nixon sold the same property to Robert Eerriday, through whom, by a regular chain of title, the defendant asserts ownership in herself. The plaintiff intervened, in the act of sale to Eerriday, for the purpose of renouncing her legal mortage on the property thus conveyed.

It further appears that, on the 31st of January, 1843, John Nixon, by public act, transferred to the plaintiff, as authorized by the Code, article 2421, No. 2, certain landed property and slaves, to replace her dotal property, and others, alienated by him, and in particular the price of the property sold to Eerriday, as above stated.

We have not been, by the learned counsel engaged in the cause, favored with any adjudged case to the point, under our State jurisprudence, nor have our researches enabled us to find an analogous one in 'our Reports. All our decisions (and they bear remotely on the subject) refer principally to the right of mortgage of married women on account of donations propher nupttas. Gates v. Legendre, 10 Rob. 74.

This litigation must, it is evident, be determined under the provisions of the Code of 1808, and the laws of Spain, in so far as they are not repugnant to the Code. That the two must be construed together, in, pari materia, has long been the settled jurisprudence of the State, as the following extracts will show: “The Act of 1828 repealed the whole body of the Spanish laws, which remained in force after the promulgation of the Code of 1808.” Handy v. Parkinson, 10 La. 99. See also Beard v. Poydras, 4 M. 368.

“ Subsequent laws do not repeal former ones, by containing different provisions: they must be contrary.” Lacroix v. Coquet, 5 N. S. 527.

“The jurisprudence of Spain came to us with her laws. We have no more power to reject the one than the other. The people of Louisiana have the same right to have their cases decided by that jurisprudence, as the subjects of Spain have, except so far as the genius of our Government, or our positive legislation has changed it.” Saul v. His Creditors, 5 N. S. 569.

“ The question, does the enactment in our Code of a general provision • existing in the Spanish law repeal the exception which accompanied it in that law. We have so repeatedly decided the contrary, and the jurisprudence of the Court is so fixed in this matter, that it is unnecessary to refer to cases in which the principle has been settled.” Valson et als. v. Cloutier, 3 La. 170.

The property of the wife, both under the Code of 1808 and the Spanish laws, is divided into two kinds, dotal and extra-dotal. Code, p. 324, Arts. 11 and 12; Partida TV, Title XI, Laws I and XYII.

The first chapter, under the title of marriage contract, p. 322, treats of general dispositions, and the 9th article thereof declares: “ The most ordinary conventions in marriage contract, are the settlement of the dowry, and the various donations which the husband and wife may make to each other, either reciprocally or the one to the other, or which they may receive from others in consideration of the marriage. ”

The first section of the second chapter, article 15, p. 326, treats of donations made in consideration of marriage. The article in question reads:

“ Husband and wife may, by their marriage contract, make reciprocally, or one to the other, or receive from other persons in consideration of their marriage, every kind of donations, according to the rules and under the modifications prescribed in the title of donations inter vimos and mor-tis causa. ”

Thus we see, by a combination of the two articles above copied, three distinct objects, which may each be the substance of a valid contract: 1st. The settlement of a dowry by the wife. 2d. Donations by the husband to the wife, and vice versa. 3d. Donations made by others, to the wife, or to the husband, or to both.

The second section of the second chapter, p. 326, treats particularly of dowry, which is defined as follows: Art. 16, “ By dowry is meant the effects which the wife brings to the husband to support the expenses of the marriage.” Art. 17, “ Every thing which the wife settles upon herself, or which is {»iveii her by the marriage contract, is included in the dowry, unless there be a contrary stipulation.” Art. 20, “Dowry can be settled either by the wife herself, or by her father or mother or other ascendants, or by her other relations, or even by strangers.”

The 16th and 20th articles would seem to exclude donations made by the husband, while the 17th article would include them, unless modified by other articles when construed together, as a whole.

We may be spared the necessity of this analysis, and find the solution of the vexed question, by looking into the Spanish laws.

Title II, Law 1st, of the 4th Partida, describes dowry and donations .as follows: “That which the wife gives the husband, on account of marriage, is called dowry. It is a sort of donation made with a view to her maintenance, and to the support of the marriage; and according to what is said by the ancient sages, it is, as it were, the patrimony of the wife. And that which the husband gives the wife, on account of marriage, is called, in Latin, clonatio propter nuptias, which means, a donation which the man gives the woman, on account of his marriage with her; and which, in Spanish, is properly called arras.”

Under the second law of the same Partida and section, we find two sorts of dowry and two sorts of arras: — Adventitia, by which is meant the dower which the wife gives to the husband out of her own effects, or which is given for her, by her mother, or by any other relation not of the direct ascending or descending lines, or by a stranger: and profectitia, by which is meant the dower which proceeds from the estate of the father, or grandfather of the wife, or from some other person from whom she descended in the direct line.

The two kinds of donations, or arras, are, first, the one which the husband makes to the wife on account of the dower received by him; second, the one which the husband makes gratuitously, and which is called spon-salitia largitas.

It is evident, from what precedes, that donations from the husband to the wife, make no part of the dower, under the Spanish jurisprudence.

It is equally clear that the above copied article of the Code of 1808, art. 20, is an embodiment of Title XII, Law II, of the TV Partida, descriptive of the composition of dower.

It therefore follows, by the well known rules of interpretation and construction, that as the laws of Spain, regained in foüjce in Louisiana filter tlio adoption of tlie Code of 1808 and until the great repealing- Act of 1828, that donations propter nuptias, or arras, are not included in the dower. This conclusion is not in conflict with any provision of the Code, but conforms with the principles enunciated in our introductory quotations.

The property in question must, therefore, be classed as the extra-dotal, or paraphernal property of the wife.

It is true that the VII Law of the, IV Partida, Title XI, provides that “the husband cannot sell, alienate or dissipate, during-marriage, either the estate he had given his wife, or the dowry he had received from her,” &c. But it seems clear to us that the framers of the old Code have acted directly on this prohibitory law, which is an exception to the general law which declares all persons capable of selling and buying any effect of commerce. Code, p. 348, Arts. 14 and 16.

The 36th article of the Code, p. 328, says: “Immovables settled as a dowry, can be sold or mortgaged during the marriage, neither by the husband, nor by the wife, nor by both together, except as is hereinafter excepted. ”

The prohibition, as to the alienation of property donated by the husband, and which, as we have stated, is properly classed as extra-dotal or paraphernal, is not only excluded by strong implication, but, as we conceive, by a contrary provision. Article 58, p. 334, declares: “ The wife has the administration and the enjoyment of her paraphernal effects. But she can neither alienate the.same, nor appear in court of justice concerning said effects, without the authorization of the husband, or if he should not give it, without the authorization of the Judge. ”

. It is, therefore, ordered, that the judgment of the District Court bo avoided and reversed; and it is further ordered and decreed, that the demand of the plaintiff be rejected, at her costs in both courts.


author: Merrick, C. J.

text:
    Ambrose Lanfear v. James Harper et als.
    Whoro equity seems to require it, the case will bo remanded for a now trial.
    Appeal from the District Court of the Parish of St. Charles, Burthe, J.

      I-Iandlin <& St. Paul, for plaintiff. T. <T. cC; A. J. Semmes, for defendants and appellants.
   Merrick, C. J.

A suit between the plaintiff and defendant James Harper, involving the title to the land now in controversy,- was before this Court in December, 1858. See 13 An. 548. In that case a judgment of non-suit was rendered.

Suit having been commenced de novo against Harper and one Neufeldt, on the trial it was agreed by counsel that the case should be submitted to the court on the evidence on file in the former case, with such additional evidence as they might then file. In the former case, it will be seen by reference to the Beports, the judgment was reversed, on the ground that neither the proces-verbal nor the order of sale of the property of the succession of Francis M. Ward, deceased, was offered in evidence. On the trial of the present ease, the defect in this particular-was supplied. The plaintiff had judgment.

It is now objected by defendants and appellants, that the alleged transfer of the property from the succession of Daspit St. Armand, deceased, to Erancis M. Ward, stands in the same predicament as stood the alleged transfer from Ward’s estate to William Polk on the former trial. A notarial act of sale between a person styling himself executor of St. Armand and Erancis M. Ward is in evidence, but neither they)roces-verbal nor the. order for the sale of the property by the Probate Court has been produced, as we are able to discover.

This objection existed in the former case, but probably it was not considered, on account of the manner in which the defect in William Polk’s title was presented by appellant; and the objection taken was considered sufficient for the decision of that case.

According to the decisions in the 13th An. 523 and 548, plaintiff’s title is defective on the ground urged by defendants, but as some inadvertence may have been induced by reason that the objection was not noticed in the opinion of this Court in the other case, we think the cause should be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower court be reversed, and that this ease be remanded for a new trial; and that the appellee pay the costs of appeal.

Voobhies, J., absent.


author: Laud, J.

text:
    Thomas J Spear v. Gardner & Densler.
    Where there is a special contract which fixes a contingent compensation, a party cannot recover on a quantum, met'uit.

    The principal may revoke Uis power of attorney whenever he thinks proper, and, if necessary, compel the agent to deliver up the written instrument containing it, if it be under private signature. C. C. 2997.
    Appeal from the Second District Court of New Orleans, J.

      V. F. <& J. B. Cotton, for plaintiff and appellant. A. T. Steele, for defendants.
   Laud, J.

The plaintiff sues on a quantum meruit, to recover the value of services rendered by him in the capacity of agent for the defendants. He cannot recover; first, because there was between him and the defendants, a special contract which fixed a contingent compensation for his services; secondly, because the event on which his compensation depended, under the terms of the contract, never happened; and thirdly, because the revocation of the plaintiff’s power of attorney was no such violation of the contract of mandate, as entitled him to recover the value of his services, in the nature of damages, as contended by counsel. C. C. Art. 2997.

The disbursements by the plaintiff were the subject of a settlement beween tlie parties at tlie termination of tlie agency, at wliich time the present demand, so far as appears, was not made of defendants.

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

Voobhies, J., absent.


author: Mebbick, C. J.

text:
    The State v. William Brown, alias Scotty.
    The error which will justify the reversal of a judgment must be one which has, or may have, occasioned the prisoner some injury.
    Appeal from the First District Court of New Orleans, Hunt, J.

      H. Abell, for appellant. T. J. Semmes, Attorney General, for .the State.
   Mebbick, C. J.

The prisoner has been convicted of the murder of Barney McGuire, and sentenced to suffer the penalty of death. After an unsuccessful motion for a new trial, the accused has appealed.

The record shows that the motion for a new trial was filed on the alleged ground, that the evidence disclosed a case of self-defence on the part of the accused, and also on the ground of the supposed error of the Judge in excluding certain testimony of the prisoner’s witness from the jury. A bill of exception has made the ruling of the District Judge a part of the record, and we will proceed to consider the question raised by the same.

On the trial of the case before the jury, the prisoner placed a witness upon the stand and offered to prove by the same, that the deceased was a man of desperate and dangerous character, in order to show that at the time of the homicide the prisoner had reasonable grounds to apprehend the loss of his life, or great bodily harm.

And in order to lay the basis for the reception of this testimony, the prisoner had, as appears by the bill of exceptions, introduced a witness who testified that two or three months previous to the homicide, the accused, who was at JLiOuisville, Ky., said he would kill Brown, and that he would follow him to New Orleans and have his life, and that witness informed Brown of it, who made light of it; that the difficulty was about an election in Louisville.

Another witness, it was admitted, would prove that the day before the homicide, the deceased, in a clandestine manner, struck the prisoner on the head with a stick of wood and felled him to the ground, causing the blood to flow freely; and then threatened to take the life of the prisoner.

Another witness testified, that the deceased, about three quarters of an hour before the homicide, desired to borrow a large bowie-knife, which was refused him.

And another witness, a man of bad character and a reputed thief, who had been with the prisoner in the Parish prison, testified that he was on the steamboat Atlantic when the homicide occurred, and saw the deceased came out of a room and saw the prisoner go towards the stern of tlie boat, and that tbe deceased, applying an opprobrious epithet to the prisoner, said: “I have got you where I want you,” and at the same time raising his hand as if to draw a weapon; that he did not see any weapon with prisoner; that he then left to avoid seeing (what he caEed), the “fuss ” which he anticipated, and when he got on the staging of the boat heard the pistol ñre, and in a few minutes afterwards saw the prisoner run across the levee.

The counsel for the prisoner in the lower court appears to have recognized the rule laid down in the case of The State v. Chandler, 5 An. 489, that testimony in general, that the deceased was a quarrelsome man, of violent temper and dangerous when excited, is inadmissible on a trial under an indictment for murder. But he seems to have proceeded upon the supposition that there is an exception to this rule where the deceased was the' assailant, and that in such case the character and disposition of the deceased, as well as his physical strength and the manner in which he was armed, were proper subjects of inquiry before the jury in order to determine whether there were reasonable grounds for the defendant to conclude that a necessity of taking the life of the deceased existed in order to save his own, or at least to save himself from great bodily harm.

Whether our law recognizes this exception to the general rule, and if it does, whether the District Judge can inquire into the truth of the facts testified to by the witnesses as the basis for the introduction of the proof, and receive or reject the testimony as he shah believe or disbelieve them, are questions which we do not feel called upon to decide in this case; for it also appears by the same bill of exceptions, that after the State had closed its rebutting testimony, the objection to the evidence of the character of the deceased was withdrawn by the Attorney General, and the prisoner was permitted to offer the testimony if he thought proper; but he declined so to do, as stated by his counsel, because the court had pronounced it illegal and inadmissible.

It has often been said by the Court, that the error which -will jristify the reversal of a judgment, must be one which has or may have occasioned the prisoner some injury. It cannot be said that any injury was occasioned him by the ruling of the District Judge in the present case, because the prisoner himself declined to introduce the testimony: volenti non fit inju-ria. Neither can he say that such interlocutory order of the Judge on the question of the admissibility of the testimony would have prejudiced him on the trial; for non constat, the Attorney General might have conceded the question of law, and the Judge perhaps might not have refused on the trial, after the testimony had been received, to charge on this point as required by the accused. See State v. Kennedy, 11 An. 480.

Of the facts involved in the motion for a new trial, we are not permitted to inquire. The District Judge was of the opinion that the testimony proved, that twenty-four hours after the alleged provocation, the prisoner searched out the deceased to kill him and did kill him. The law makes the verdict of the jury and finding of the District Judge on this branch of the case final.

We cannot, therefore, say that any error has intervened in the proceedings and trial of this cause to the prejudice of the prisoner. See Wheaton Crim. Law, 234 and 395, ed. 1852; 2 Greenleaf’s Ev.' No. 27.

It is, therefore, considered by this Court, that the judgment of the lower court be affirmed, witli costs.

Yoobhees, J., absent.


author: Land, J.

text:
    C. Roselius et al. v. J. A. Barelli et al.
    One of several plaintiffs cannot release liis co-plaintiffe from the payment of costs, in order to make them disinterested witnesses.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Alfred Phillips, for plaintiff. Geo. 8. Lacey, for defendant and appellant.
   Land, J.

The plaintiffs, who were formerly partners in a plantation, sue to recover the price of a slave sold at auction, with other slaves belonging to the partnership, without any warranty except as to title.

The defendant resists the plaintiffs’ claim on the ground of redhibitory defects in the slave, to their knowledge, before and at the time of the sale.

The case was tried by a jury who rendered in favor of the plaintiffs a verdict which was confirmed by the judgment of the lower court.

The defendant has appealed, and complains of the ruling of the Judge a quo on the trial, in permitting the testimony of two of the plaintiffs to be received in evidence, notwithstanding his objections at the time, as shown by his bill of exceptions in the record.

The Judge received the testimony of the witnesses for the reason, that they had conveyed all their interest in the suit, and had subrogated their co-jDlaintiff to all their rights against the defendant; and had been released by him from all liability of every character whatsoever which had arisen, or might afterwards arise out of the suit, whether for costs, warranty, or otherwise.

The Judge erred in receiving the testimony; because one of several plaintiffs cannot release his co-plaintiffs from the payment of costs, and thereby divest them of all pecuniary interest in the event of the suit; for the reason that the costs are due to the officers of court, to whom the plaintiffs are liable in soUdo for the payment of all fees from the commencement of suit. A co-plaintiff can only be released from the payment of costs, by the parties to whom the costs are due. A release by any one, except the creditor or his authorized agent, is without any legal effect and void.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed; and that this cause be remanded for a new trial, and further proceedings according to law; and that the appellee pay the costs of this appeal.


author: Dtjeeel, J.

text:
    Richard Phillips v. R. K. Bonham and C. W. Ivens.
    A party lias a clear right of action, ex contractu, under a bond given for a writ of arrest, to tlic same extent that would the owner of sequestered property have for the wrongful suing out of a writ of sequestration, the condition of the bond being the same in both cases. Hence it is not necessary, to entitle a party to recover special damages resulting from liis illegal arrest, that he should allege and prove malice and want of probable cause.
    Where the defendants in making or procuring the arrest, acted under the advice of counsel given in good faith, that they had a good cause of action against the defendant in said suit, and a legal right to hold him to bail therefor — Held .- That the defendants are not liable in damages.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Mott <& Fraser, for plaintiff. J. IT. Ycmclalson and Durant t& Hor-nor, for defendants and appellants. ■
   Dtjeeel, J.

The defendants are appellants from a judgment of the Sixth District Court of New Orleans condemning them to pay five hundred dollars, for an illegal and malicious arrest of the plaintiff in a civil action.

The writ, under which the arrest complained of was made, was quashed on proof that the present plaintiff was a non-resident and had not absconded from his residence. One of the defendants, Ivens, was charged simply because he was surety on the bond given by the other defendant, Bonham, to obtain the arrest. The amount of this bond is $1950, and the amount claimed in damages for the illegal arrest is $10,000, one-half as special damages and the other half for “personal incligmty, die.” The present plaintiff was bailed after having remained in the custody of the Sheriff from one to six hours.

1st. The plaintiff has a clear right of action, ex contractu, under the bond, to the same extent that would have the owner of sequestered property for the wrongful suing out of a writ of sequestration, the condition of the bond being the same in both cases. O. P. Arts. 276 and 214 as amended by the Act approved March, 15th 1856, p. 80; Wm. Biggs v. D’Aquin Brothers, 13 An. 21. Hence it is not necessary, in order to entitle a party to recover special damages resulting from his illegal arrest, that he should allege and prove malice and want of probable cause. Perrin v. Planchard et al., 15 An. 133.

The only special damages proved in this case, is the sum of fifty dollars paid to counsel to obtain the setting aside of the writ of arrest.

2dly. In an action for exemplary damages by reason of a malicious and unfounded arrest, the plaintiff, in order to succeed, must prove both malice and the absence of probable cause; and we think that the plaintiff in this case has failed as to one of the ingredients at least.

It is true that, in point of fact, there was no probable cause for the arrest because the defendant, Phillips, was a non-resident; but Bonham had a good cause of action in the ordinary form.

It is however in evidence, that the defendant, Bonham, was controlled, or acted under the legal advice of an old iiractitioner at the bar; that, although the plaintiff was in the habit of visiting New Orleans yearly, he had, on this occasion, been in New Orleans with his family for nearly two months, and had the intention of purchasing a sugar estate in Louisiana, in fact lie bases Ms claim for damages partly on the failure of his acquisition of the plantation in consequence of the arrest.

We therefore conclude, from all the surrounding- circumstances of the case, that the defendant Bonham acted in good faith and without malice. Edmond M. Gould v. Gardner, Sager & Co., 8 An. 11, and 11 An. 289; Greenleaf, vol. 2, $ 459.

We must not be understood as conceding that a surety on a bond given to procure the arrest of a debtor can, when sued as such only, be mulcted in vindictive damages; we express no opinion on this point.

It is therefore ordered, that the judgment of the District Court be avoided and reversed; and it is further ordered, adjudged and decreed, that the plaintiff have judgment against the defendants, -m solido, for the sum of fifty dollars, and the costs of the lower court; the costs of the appeal to be paid by the plaintiff and appellee.

Yoobhies, J., absent.


author: Yoobhies, J.

text:
    The State v. James Gallagher.
    Oil a motion for a new trial, in criminal cases, it is necessary to specify the ground upon which relief is sought; and proof made accordingly.
    Appeal from the First District Court of New Orleans, Hunt, J.

      R. Hunt and If. If. Reynolds, for appellant. T. J. Semmes, Attorney General, for the State.
   Yoobhies, J.

The ground upon which the accused applied for a new trial in the Court below, was: that James Goodwin, one of the jurors, who tried this prosecution, had stated on his voir dire, in answer to a question propounded by the State, that he had neither formed nor expressed an opinion in the matter; whilst, as the prisoner states in his motion, he had discovered since the trial that tMs juror had previously made to Captain Woolfrow of the police, statements of quite an unfavorable character for the defence.

On the trial of the motion, the accused offered to prove that similar statements had been made to another person, J. Casey. The prosecution objected to the admissibility of the evidence, and the Court sustained the objection.

The point in issue as raised by the motion for a new trial, was, whether objectionable statements had-been made by the juror to Woolfrow; and the object was to establish this fact in order to vitiate the verdict, to the rendition of which tMs juror had contributed. In a motion for a new trial it is necessary to specify the ground upon which relief is sought; and when the specifications are made, the “evidence offered must correspond with the allegations, and be confined to the point in issue.” I. Greenleaf, § 51. Hence the riding of the District Judge was correct in shutting out all conversations between the juror and persons other than the one whose name had been disclosed in the motion.

The Court refused to allow the prisoner to amend his motion so as to include the name of Casey. This was a matter resting in the sound discretion of the District Judge, the application having been made after the parties had gone to trial. State v. Nolan, 13 An. 276.

Judgment affirmed.

       Since this opinion was read the original bill of exceptions has been shown us by which it appears that “ no motion was made for further time or for a continuance of the rule in order properly to present the facts alleged to have been discovered; but the party went into the trial of the rule without reserve.”' The word llnoy‘ was omitted in the transcript. — E. T. Merrick, C. J.


author: Dtteeed, J.

text:
    The State v. Wm. W. Cassidy.
    Where the record of appeal contains neither bill of exception, nor assignment of errors apparent on tho face'of the record, and other proceedings are regular, the judgment of the Court a quo will not be disturbed.
    Appeal from the First District Court of New Orleans, JEPwnt, J.
    F. Hiestand, for appellant. 21 J. Semmes, Attorney General, for the State.
   Dtteeed, J.

The record of appeal containing neither bill of exceptions nor assignment of errors apparent on the face of the record, and ah the proceedings appearing to be in the required form, the judgment of the District Court must' remain undisturbed. State Const., Art. 62; 3 An. 499.

Judgment affirmed.

Vooehies, J., absent.


text:
    Wm. M. Lindsey v. Police Jury of the Parish of Point Coupee.
    When a contract stipulates no time within which it is to be performed, the party bound is entitled to a reasonable time for its performance ; to be determined by circumstances, and the nature of the thing stipulated to he done; and besides, he must he put in default before an action in damages can be maintained against him.
    Appeal from the Dist. Court of the Parish of Point Coupee, Me Vea, J.

      T. J. & W. JET. Oooley, for plaintiff and appellant. A. Provosty and John Yoist, for defendant.
   Land, J.

This suit is for the recovery of five thousand dollars damages, for an alleged breach of contract.

It is shown by the evidence that the Police Jury of the Parish of Point Coupee, by resolution passed on the 20th of September, 1868, appointed certain Commissioners, and authorized them to let out a contract for budding, at the expense of the parish, a levee on two certain lots of land fronting on the Atchafalaya River, and belonging to plaintiff and two other persons; but required the Commissioners, before letting the contract, to receive an act of sale to the Parish, from the plaintiff and the other proprietors, of the lots of land upon which the levee was ordered, by the resolution, to he constructed. That the act of sale, or donation to the Parish,was passed on the 26th of October, 1868; and the Commissioners proceeded to advertise, and to let out the contract in pursuance of the resolution; that the contract was not let out, until the latter part of De-comber following, and tlie building of tlie levee was not commeneod, until tlie 1st of January, 1859, wlien tlie high waters of tlie river arrested its progress, and prevented its completion at that time. And that tlie waters continued to rise, and in the spring of 1859 overflowed plaintiff’s plantation, and caused him considerable damage.

On these facts, the plaintiff correctly contends that the resolution of the Police Jury, and the conveyance of the land in consideration of the construction of the levee, constituted a contract for the violation of which an action would lie against the Parish for the recovery of damages. - The resolution, however, does not specify any given time within which the contract should be let out by the Commissioners, and the work should be commenced aiid completed tinder it. And when a contract stipulates no time, within which it is to be performed, the party bound is entitled, by law, to a reasonable time for its performance, to be determined by circumstances, and the nature of the thing stipulated to be done; and besides, he must be put in default, before an a -ion in damages can be maintained against him.

In the case- before us, there was no unreasonable delay on the part of the Commissioners in letting out the contract, and in causing the construction of the levee to be commenced by the contractor; for only two months and a few days elapsed between the date of the conveyance of the land, and the commencement of the construction of the levee. If it were otherwise, the plaintiff, who sues for a passive breach of contract, cannot recover, because he failed to put the Parish in default, which was a condition precedent to the institution of his suit for the recovery of damages. See Hennen’s Digest, verbo Obligations, id. 1076, sec. 6.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs in both courts.

Yooesxes, J., absent.


author: Mebbiok, C. J.

text:
    The State v. The Judge of the Second District Court of New Orleans.—On the relation of Jacob Denny, praying for a mandamus.
    Iii hypothecary actions the delay for a suspensive appeal commences to run from the date of service of the notice of the order of seizure and sale, which is notice of judgment to the possessor of the hypo-thecated property. 2 An. 145 ; 14 An. 105 ; O. P. 575, 624.
    The notice required, of course, is a legal notice; and a verbal notice by a friend, or a notice served upon an unauthorized person, is, in the eye of the law, no notice.
    A curator ad hoc must be appointed for a mortgagor who is absent when executory process is sued out against the proporty mortgaged. 737 C. P.
    An absentee is a person who has resided in the State, and has departed without leaving any one to represent him. C. 0. 3522, No. 3.
    A person who leaves his domicil for a temporary sojourn in another State is not an absentee, if there are persons at his dwelling on whom service can be made in conformity with Art. 189 of the C. 1\, or if he leaves a duly authorized mandatory to represent him.
    The plaintiff in execution who undertakes to appoint a curator ad hoc to represent the defendant, should he ready to prove his absence or other sufficient cause for the appointment. 13 An. 312.
    Appeal from the Second District Court of New Orleans, Bermudez, J.

      JRoberi Mott, for relator. Alfred & Felix Grima, contra.
   Mebbiok, C. J.

A rule was granted by this Court calling upon the Judge of tlie Second District Court to show cause why a suspensive appeal from an order of seizure and sale should not be granted relator.

The District Judge having answered the rule, the case is before us on his answer, and it presents a question as to the power of a curator ad hoc of a person temporarily absent to represent him.

The plaintiff, in the order of seizure and sale, S. Roman, on the 20th of May, 1867, by notarial act sold for ¡8270,532 39, partly for cash and partly on credit, to the relator, Jacob Denny, and two others, Hieronymus and Ross, a plantation and slaves in Hie Parish of St. James, a mortgage being reserved with the pact de non alienando to secure the unpaid portion of the price.

On the first of April, 1858, the vendees sold the plantation and slaves for $>264,025 79 on credit to James Biggin, of New Orleans, who, in the act of sale, assumed the payment of the notes to S. Roman, the original vendor. Biggin died leaving a will, which was admitted to probate in the Second District Court of New Orleans, December 4th, 1860. He left his estate to his mother, Mrs. Rachel Sank, of Baltimore, as universal legatee, and she was put in possession of his succession. She appointed L. E. Reynolds, of this city, her agent to represent her.

On the 24th day of May, 1861, ($31,170 70 of the credit having fallen due) Roman applied to the Second District Court of New Orleans for an order of seizure and sale of the plantation and slaves in St. James against Mrs. Sank (represented by her attorney in fact), Jacob Denny, W. T. Hi-eronymous and Webb Ross. The latter was alleged to be an absentee, and D. O. Eorcelle, Esq., was appointed curator ad hoc to represent him. In the petition for the order of seizure and sale, Jacob Denny is described both as of the Parish of Catahoula in this State and as a resident of New Orleans. On the 28th day of the same month (May, 1861), the plaintiff in the order of seizure and sale filed a supplemental petition, wherein he alleged “that since the said order was granted and issued, petitioner has been apprised that said Jacob Denny, then in New Orleans, one of said defendants, has absented himself from this city and left the State for Kentucky, and that it is therefore necessary that a curator ad hoe be appointed to represent the said absent defendant. ” On the prayer of the supplemental petition, the samé curator ad hoc who had been appointed for Ross, was appointed to represent Jacob Denny.

On the 4th of June, 1861, Eorcelle was served with a copy of the petition and a demand of payment. On the 14th of the same month he was served ■with notice of seizure, and on the 12th day of July, 1861, notice to appoint appraisers was also served.

In the act of sale from Roman to Denny and others, Denny is described as resident of the Parish of Catahoula. When he and his co-proprietors sold to Riggin, he appears in the act as resident in St. James, where the plantation was situated.

Since that sale his domicil (as alleged by plaintiff, Roman,) appears to be in the city of New Orleans. . He occupies furnished apartments, where he sleeps and keeps his trunks and apparel, and he takes his meals at the St. Charles Hotel. He deals in horses, and usually spends his summers in Kentucky; but since he has become a resident of the city, pays rent for his rooms during his absence.

At the time the order of seizure and sale issued he had gone to Ken-tacky, as was understood, on a visit to Ms daughter. He liad returned the 31st of May, which was before the notices were served on EoreeUe, having been telegraphed on account of the order of seizure and sale. It is not alleged that he absented Mmself or secreted himself from Ms lodgings and the St. Charles Hotel at the time the notices were served. It is true, however, that after remaining at home between two and three weeks, he was again absent from Ms lodgings for some time prior .to the 20th of July. Where he went and how long he was absent does not clearly appear.

On the 17th day of July, the relator presented a petition and offered ample security for a suspensive appeal. A rule was also taken on the plaintiff in the executory process to show cause why the suspensive appeal should not be granted.

The answer to the rule simply denies that an appeal will lie to correct any error in the execution of an order of seizure and sale; alleges that Jacob Denny was not entitled to personal notice because he had divested himself of ownership; alleges that notice to the defendant, Mrs. Sank, was notice to Denny; and finally, that Jacob" Denny “having confessed judgment in case .the said mortgaged notes on which executory process has issued should not be paid at maturity,” must be considered as cognizant of the judgment.

After a hearing, the rule was discharged, and the appeal was refused. Hence the present proceeding.

It is manifest that the regularity or irregularity of the order of seizure and sale has nothing to do with the merits of the question before us. The only question is, was the relator entitled to a suspensive appeal on the 17th of July? And, to answer this question, we must ascertain whether the notices served upon Mr. Forcelle, the curator ad hoc, on the 4th and 14th of June, after the return of Jacob Denny, were sufficient and legal. If they were not, then the relator was not only in time to appeal on the 17th of July, but he is still in time, for the right to appeal from an order of seizure and sale is undoubted, and the delay in which the party is to apply for the suspensive appeal counts from the notice given under Art. 735, C. P. See 14 An. 105.

Of course the notice required by this article is a legal- notice; and a verbal notice by a friend, or a notice served upon an unauthorized person, is, in the eye of the law, no notice.

Article 737 of the Code of Practice authorizes the Judge, if the mortgagor is absent and not represented in the State, to appoint him an attorney to whom notice of the demand shall be given, and contrarily with whom the seizure and sale shall be - prosecuted. .An absentee is defined to be a person who has resided in the State, and has departed without leaving any one to represent him. C. C. 3522, No. 3.

From these two articles it is apparent, that in order to entitle the plaintiff to the appointment of' a curator ad hoc, two things are necessary, viz., absence of the defendant from the State, and his remaining unrepresented.

A person, therefore, who leaves his domicil for a temporary sojourn in another State, cannot be said to be an absentee, if there are persons at his dwelling on whom sendee can be made in conformity with article 189 of the Code of Practice, or if he leaves a duly authorized mandatory to represent him, and gives due publicity of the appointment.

The testimony in this case does not show that service could not have been made under Art. 189 C. P. at the domicil of Denny when the order for the appointment of the curator ad hoc was made, and at the time the two notices were served on the 4th and 14th of June respectively, he was here. In the case oí Farrell v. Klumpp, 13 An. 312, we said that “the plaintiff in execution, who undertakes to appoint a curator ad hoc to represent the defendant, should be ready to prove his absence, or other sufficient cause for the appointment.”

That proof has not, as we think, been exhibited-in this case, and, as a consequence, it has not been shown that the notice required by article 735 of the Code of Practice has been given. Jacob Denny is, therefore, entitled to his appeal.

It is, therefore, ordered, that a writ of mandamus issue to the 'Hon. J. Bermudez, Judge of the Second District Court of New Orleans, commanding him to grant a suspensive appeal to said Jacob Denny from said order of seizure and sale, in favor of said Sosthéne Boman, dated the 24th day of May, 1861, the said Denny giving bond with E. M. Fisk, or other sufficient surety, in the amount and in the form required by law.

Yoobhies, J., absent.


author: Duffel, J.

text:
    The City of New Orleans praying for the opening of Royal Street. Michel Sohr, et als., opponents.
    In tbe matter of expropriation of property to public uso, all tho forms of law must be rigidly obsei-vod. Some of tbe signers of a petition to open a street must be those who possess a portion of tho land on tbe projected street.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      A. J. Vüleré, for plaintiff and appellant. M Bermudez and Johnson & Denis, et als., for defendants.
   Duffel, J.

On the 6th of April, 1858, the following petition was presented to the City Council: “To the President and Members of the City Council of New Orleans.

“The undersigned property owners; on and near Casaealvo street, between Louisa street and the tobacco warehouses, respectfully petition your honorable body to decree and order the opening of said Casaealvo street from Louisa to said tobacco warehouses, according to law. ”

This petition is signed by eight persons, with the addition of the number of feet of land owned by each of them.

The above application was made and based on the 121st section of the Act approved March 20th, 1856, to amend an Act to consolidate the city of New Orleans; &c., p. 136. The section reads as follows: “That whenever any owner or owners of real property, situate in tho city of New Orleans, shall by petition, signed by the petitioner or petitioners, and addressed to the Common Council of said city, ask for the opening, widening, or straightening of a street or streets, through their property, and through other real property adjacent thereto, setting forth m said petition the length, width, and direction of said street or streets, together with a description of said other adjacent real property, and the na/mes of the owners thereof, said Common Council shall, if it deem tlie same to be for the public benefit, cause said petition to be published in French and. English in the official journal of said city for and during eight weeks, once in each week; and if, at the expiration of said publication so made of said petition, a majority of the owners of said other adjacent real property shall not, by petition, signed by the petitioner or petitioners, and addressed to said Common Council, object to the same, said Common Council shall, by resolution or otherwise, order said street or streets so petitioned for, to be opened, widened, or straightened, under and in accordance with the existing laws; and the whole cost of said opening, widening, or straightening of said street or streets, so made as aforesaid, shall be borne by the owners of the property affected by the same: provided, that no petition for opening, widening, or straightening said streets shall be presented to the Common Council during the months of July, August, or September. ”

The required publication of the petition u-as made, and a resolution was adopted by the City Council authorizing legal proceedings to be taken to open said Casacalvo street from Louisa to Desiré streets; and, pending the proceedings had for that object in the Second District Court of New Orleans, various oppositions were made by owners of property on the projected street. The principal grounds of opposition are: 1st that “the proceedings had before the City Council are irregular, null and void, and not binding, in as much as no petition was ever presented to said Council by owners of property, through whose property said street was to be opened. 2d. That no petition -was ever presented to said Council setting forth the length, width and description of said street, nor through whose property said street was to be opened; nor a description of the adjacent property, and the names of the owners of the property to be affected by the opening of the said street. 3d. That no monition or citation was ever published to the owners of property to be affected by the opening of said street,”

The District Judge sustained the objections, decreed the nullity of the whole proceedings and rejected the report of the commissioners. The city appealed.

It is a well established rule that in matters of expropriation to public use, all the forms of ¡law must be rigidly observed. Matter of Roffignae street, 4 Rob. 357. Matter of Exchange Alley, 4 An. 4.

The evidence shows that none of the signers of the petition addressed to the Council possessed any portion of the land on which the projected street was traced, and we are of the opinion that the law imperatively requires that some such should join in the petition, and never contemplated that adjacent owners only could, by petition, require the opening of a new street wholly through their neighbors’ property.

The objection that the oppositions on the above stated grounds come too late, and should have been made pending the publication of the peti-. tion, has no force, for the opponents were not called upon to interpose, neither their names nor a description of their property being inserted in the petition.

Judgment affirmed.

Yoobhies, J., absent.


text:
    The State on the relation of Wm. C. Emerson, Recorder of the First District of New Orleans, v. John T. Monroe, Mayor of New Orleans et al.
    Tho Acts of 1852 aod 1856 contain no express repeal of the former laws investing the Mayor with a concurrent criminal jurisdiction with the several Recorders; nor are the provisions of these Acte contrary to, or repugnant to those of the former statutes investing the Mayor with such jurisdiction.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Pield & Blocker, for plaintiff and appellant. Bonford and Michel, for defendants.
   Land, J.

This proceeding is a rule taken by the relator against the Mayor and Chief of Police to show cause why a writ of quo warranto should not be directed to them, enquiring by what authority they claim to exercise a criminal jurisdiction within the limits of the First District of this city.

On the answers of the Mayor and Chief of Police, the District Judge refused to grant the writ, and dismissed the rule. The relator has appealed.

The only question presented for our decision in the case, is whether the Mayor when acting as a magistrate or justice of the peace, is invested by law with a concurrent criminal jurisdiction with the several Recorders of the city. It is conceded that, the Mayor possessed such jurisdiction prior to the passage of the Act of 1852, to consolidate the City of New Orleans, and provide for the government and administration of its affairs. But the relator contends that the Mayor was divested of h'is criminal jurisdiction- not only by the Act of 1852, but also by the Act amendatory thereof, approved March 20th 1856. The question of jurisdiction is therefore dependent on the one of repeal.

The Civil Code declares that the repeal of laws is either express or implied. It is express when the repeal is literally declared by a subsequent law. It is implied, when the new law contains provisions contrary to, or irreconcilable with those of the former law. Art. 23.

The Acts of 1852 and 1856 contain no express repeal of the former laws in/vesting the Mayor with a concurrent criminal jurisdiction with the several Recorders; nor are the provisions of these Acts contrary to, or repugnant to those of the former statutes investing the Mayor with such jurisdiction. But on the contrary, the Acts of 1852 and 1856 expressly provide that the Mayor shall be, ex officio, justice and conservator of the peace; and thereby invest him with a concurrent criminal jurisdiction over all offences committed within the limits of the city, and cognizable by other municipal officers acting in the capacity of magistrates and conservators of the peace. And besides, as Art. 124 of the Constitution of 1852, enjoins on the Governor the duty of issuing commissions to the Mayor, Recorders, and other officers, as Justices of the Peace, it may be doubted whether the Mayor could be inhibited, by legislative enactment, from concurrently exercising the ‘ criminal jurisdiction vested by law in the several Recorders of the City.

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


author: Dtjefel J.

text:
    Levi Pierce v. The City of New Orleans.
    A party may appeal from all interlocutory judgments when such judgments may cause him an irreparable injury. C. P. 566.
    Appeal from the Sixth District Court of NeAV Orleans, Howell, J.

      Durant & Horner, for plaintiff. J. J. Miehel, for defendant and appellant.
   On a motion to dismiss.

Dtjefel J.

The plaintiff’s petition declares, in substance, that he purchased, in 1849, and still holds, a lot of ground which is fully described, together with a three story brick .dwelling house thereon, and a blank brick Avail on the rear and side lines of said lot, in the city of New Orleans.

That the ground in the rear of said lot is occupied by the "Washington Artillery, Avho have on it an arsenal and armory.

“That some year or more ago the city of NeAVOrleans, under Avhichthe Company of Washington Artillery is in possession of said arsenal and armory,” raised said rear Avail rvithout making any opening in it, and used the same, and his wall for their extended buildings.

That recently their wall was still further raised to enlarge their buildings, but no opening Avas made in it.

That still later in May, 1861, the plaintiff noticed a hole in the Avail looking on his property, evidently intended for a window, and on his remonstrance against such a design, he was assured that the hole Avould be filled up; but notwithstanding said promise, and against his Avill and the protest of some members of his family, the city of NeAv Orleans, taking-advantage of his inability to attend to his affairs on account of a severe illness, suddenly completed the windoAv which hoav opens on his yard.

The petition concludes by asking $500 as damages; that the city be ordered, on a rule to show cause, in limine and before other proceedings had, to restore said Avail to its original condition as a blank Avail; that a surveyor be at the same time appointed to run the rear line between said lot and the adjacent one, “and that after due iiroceedings had, a perpetual order and injunction may issue,” &c.

The city excepted to this summary proceeding, but the exception was overruled — the rule made absolute, and the city ordered to “close up the opening in the wall referred to in the petition, and to restore the said wall to its original condition of a blank wall during the pendency of this suit, upon the plaintiff giving bond, &c.” The city thereupon took a suspensive appeal from said order.

The plaintiff moves the dismissal of the appeal on the grounds: 1st. “ That by law defendant has no right to a suspensive appeal in this case; that the judgment works no irreparable injury. 2d. That if a suspensive appeal lies, the Avrit of injunction is virtually abolished, &c. ”

We have thus given the principal averments of the petition, and the absolute order of the District Judge on the rule to show cause, in order that our conclusion may not be misconstrued and applied to the generality of injunction cases, properly speaking.

The article 566 of the Code of Practice provides, that “One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury. ”

Now, a suspensive appeal will lie in this case, should the. effect of the order be as stated in this article; and that such will be the case, were the interlocutory judgment to be voluntarily obeyed or judicially enforced by writ of distringas or otherwise, is to us apparent.

It is therefore ordered, that the motion to dismiss the appeal be overruled.


text:
    F. M. Hereford & Wife v. W. E. Leverich, Curator.

      An action arising out of a contract of mandate is barred by tbe prescription oí ten years.
    The mandatory has a right to retain, out of the property of the principal in his hands, a sufficient amount to satisiy his expenses and costs ; creating a right of pledge.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Bonford, Singleton & Clack, for'plaintiffs. W. S. Stansbury <& G. A. Breaux, for defendant and appellant.
   Land, J.

The plaintiff sues to recover compensation for the labor of her slaves and the use of her horses, mules and carts, employed in cultivating and taking off a crop of sugar in the year 1851, on a plantation belonging to the estate of Edward J. Walsh, deceased, in the Parish of East Baton Rouge.

In the suit of William E. Leverich, curator of the succession of Edward J. Walsh, instituted in the District Court of the Parish of East Baton Rouge against one Amos Adams and Mrs. Harriet Hereford, the plaintiff in this action, it -was alledged by the curator and afterwards held by the court, that the defendants were in possession and control of the plantation as Ihe agents of Walsh; and after his death, as agents of his legal representatives. In that suit the entire crop of 1851 was adjudged to the succession of Walsh, and the right of Mrs. Hereford to recover from his estate, compensation for the labor and use of her slaves, mules, &c., (although not claimed in her pleadings) was expressly reserved by the judgment of the District Court, which was affirmed in this particular, on appeal to this Court in May, 1855.

The allegation of agency in the petition of the curator, and the judgment of the court thereon, recognizing the relation of principal and agent between Walsh and the defendants in that suit, determine the nature of the contret on which the present action is founded, and have a material effect on the x>laintiff’s right of recovery, in opposition to the defences set up in the curator’s answer to her petition.

The curator contends, in tlie first place, tliat the entire demand of the plaintiff is barred by the prescription for three years. This prescription would bar the action, if the plaintiff were simply suing on a contract of letting and hiring; but such is not the case, she is suing to enforce a right arising out of a contract of mandate, and her action is not barred by the prescription of three, but of ten years. See Garland v. Estate of Scott, 15 A. 145: Imboden v. Richardson, Ib. 535.

The curator contends, in the second place, that the plaintiff' has no right of privilege on the proceeds of the crops of 1851; and that her claim, if allowed at all, can only be allowed as an ordinary debt against the sue-. cession of Walsh. The law declares that the mandatory has a right to retain, out of the property of the principal in his hands, a sufficient amount to satisfy his expenses and costs; and thereby creates a right of pledge ;which operates in favor of the agent, a privilege on the proceeds' of the property in his hands, for the reimburs' nent of the expenses and charges incurred in carrying out the execution of the mandate. O. C., Arts. 2991, 2992, 3184, No. 4.

As the plaintiff was in '' ¡session of the crop of 1851, as agent of Walsh; and as the labor of her slaves, and the use of her horses, mules and carts, must be considered as advances, or expenses incurred with the consent of the principal, in the execution of the mandate, there is no legal ground on which the right of privilege can be rejected. The judgment awarding to the succession of Walsh the crop of 1851, did not pass upon the plaintiffs the right of privilege, but reserved it with her other rights to be determined in a subsequent action.

The curator contends, in the third place, that legal interest was improperly allowed in favor of the plaintiff, from the 1st of January, 1852;. but as the plaintiff was entitled to recover interest on the amount of her claim from the date of the death of Walsh, there is no error in the judgment of the lower court in this particular.

The amount allowed to tlie plaintiff, by the District Judge, is justified by the evidence.

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


author: Voobhjes, J,

text:
    N. G. Rhodes et als. v. J. H. Myers et als.—W. H. Flynn, Intervenor.
    Where the interest oí a witness is neutralized, ho is competent.
    The issuance of a commission by a deputy clerk to take testimony when it is ordered by the court is a ministerial act, and when executed, is properly received by tlie court.
    Where defendant in attachment makes a prima farie f- bowing that he did not intend leaving the State permanently, ami his adversary does not rebut this proof — Held: That the acts and declarations of the former were properly admitted.
    Appeal from the District Court of East Feliciana, McVea, J.

      B. J. JBowmem and Muse <& Hardee, for intervenor and appellants. F. Hwrdesty and W. F. Kerncm, for appellees.
   Voobhjes, J,

The defendant’s slaves were attached upon the allegation that he was about leaving the State permanently. Issue being joined on this allegation, the motion to dissolve the attachment was tried, and judgment was rendered in his favor.

The object of this suit is to cancel, on the ground of simulation, the adjudication of these slaves to Samuel Lee, and the sale from Lee to the defendant. The slaves had been sold by the Sheriff on an execution against Burrel Myers, the defendant’s father. The question in the main suit is, whether the property attached belongs to the succession of Burrel Myers, and, as a consequence, is liable for the plaintiff’s demand.

There are several bills of exception in the record.

1. Is William Myers, as one of the heirs of Burrel Myers, deceased, disqualified on the ground of interest? His pecuniary interest is to have the property recognized as belonging to the succession; on the other hand, being sworn on his voir dire, ho acknowledges to have received, in money, his share of the slaves. But as the object of this suit is the payment of the debt of his father, for which he and his co-heirs are responsible, his interest is neutralized. His obligation in warranty is for his virile share; and such also is his obligation to pay the debt in question. He is, therefore, a competent witness. C. C. 2260.

2. For the same reason, John Myers is not an incompetent witness on account of Ms heirship.

3. The clerk having granted the order for a commission to take testimony, the issuance of the commission by his deputy was not a judicial, but a ministerial act. The commission executed upon such issuance was properly received by the court.

4. The defendant has made a prima faaie showing that lie did not intend leaving the State permanently at the time of the institution of these proceedings; nor has his adversary rebutted this proof. It is true that the acts and declarations of the former were, for that purpose, admitted on his behalf; but this is the only way in which the mere intentions of a party can be gathered. O. P. 240.

Judgment affirmed.

Mekbick, O. J., recused himself.

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


text:
    L. Chaudet v. M. De Jong et al.
    The salary of a city assessor is oxompt from execution, lio being the o/Ticor of a political corporation.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      J. Magne, for plaintiff. Boselms <& Phillips, for defendant and appellant.
   Yoobhies, J.

The question presented for adjudication in this cause is, whether the emoluments of the office of City Assessor are exempt from seizure under article 647 of the Code of Practice.

The text speaks of salaries of office.

The term office, under our article, has reference to functions conferred by public authority and for a public purpose. These functions must be political.

The City of New Orleans is a corporation essentially political: it has for its object the administration of a portion of the State; and a part of the powers of government is delegated to it for that purpose. C. C. 420. The functions which it has conferred on its assessors, are public or political, and are ancillary to the exercise of the power to levy and collect taxes.

The office of City Assessor consequently falls under the operation of article 647 of the Code of Practice. See C. C. 1987.

It is therefore ordered and .decreed, that the judgment of the District' Court for the seizure and garnishment of the salary of the City Assessor, in the hands of the City authorities, be avoided and’ reversed; and that, upon this rule, there be judgment in favor of the appellant, with costs in both courts.


author: Voobhees, J.

text:
    State of Louisiana v. Widow H. Walters.
    The prescription of one year from the finding of the Grand Jury, governs all criminal cases, except murder, robbery, arson, forgery, and counterfeiting.
    It is the duty of the State to contradict the plea of proscription ; not of the party settiug it up.
    Time is an essential averment in an indictment; but it was sufficient for conviction to show that the fact charged had taken place at any other time, whether before or aftei' the day laid, so that it be before the time when the indictment or appeal was preferred : provided the charge had been preferred in due
    A formal conviction or acquittal will bar a subsequent prosecution. But the acquittal or conviction must he a legal ouc — upon trial by verdict of a petit jury. The verdict must be a valid one, not subject to be set aside. If the court award a new trial upon quasliiug the verdict, whether at the instance of the prisoner, or, m special application, on the application of the prosecution, it is evident, in the eye of the law, the accused has not been in jeopardy.
    Appeal from the District Court of St. John the Baptist, Berault, J.

      S. Filleul, for appellant. T. J. Semines, Attorney G-eneral, for the State.
   Voobhees, J.

I. The defendant being prosecuted for the offence of selling liquors to slaves, pleaded the prescription of six months.

This plea is unfounded; for the defendant is prosecuted for a criminal offence, and not sued for the recovery of a fine or forfeiture. The prescription of one year governs this prosecution. Acts 1855, p. 151, § 10; State v. Hollin, 12 An. 677; State v. White, 13 An. 573; State v. Markham, 15 An. 498.

II. The'District Judge charged the jury: “That the onus probandi oí the .facts necessary to sustain a plea of prescription, was in the party setting up the plea of prescription. ” The defendant’s counsel contended that it was for the State to prove that the offence had been committed within the period fixed by the statute of limitation.

This objection was well taken; and, having been overruled by the inferior court, entitles the prisoner to a new .trial.

The law, as it formerly stood, required in all indictments a specific averment as to the time of the commission of the offence; and, although the State was not held to prove that the crime had been committed on the very day charged, yet it was indispensable to establish that it had been committed within the statute of limitations. Time was an essential averment in an indictment; but it was sufficient for a conviction to show' that the fact charged had taken place 11 at any other time, whether before or after the day laid, so that it be before the time when the indictment or appeal was preferred.” AlacNally Ev. p. 496. But notwithstanding the latitude given as to the proof of the time, it was not the less incumbent on the prosecution to give evidence that, in point of fact, the charge had been preferred in due time. State v. Foster, 7 An. 255; State v. Markham, 15 An. 498; Archibald’s Cr. P. p. 95.

The. practice has been greatly modified, as respects the allegation of time in indictments. The provisions of tlio Act of 1855 (to regulate the. mode of procedure in criminal prosecutions, p. 175, $ 17) aro sweeping; no timo need be alleged in an indictment for the commission of an of-fence; nor, if alleged, need be correctly stated, — the clause relative to time, considered as of the essence of the offence, notwithstanding.

But this statute did not introduce any change as to tlio requirement of proof in this respect.

III. It is necessary to dispose of the prisoner’s plea in bar of a former conviction. She had been tried upon tlio samo indictment; and the jury had rendered a verdict of guilt against her in the French language. On appeal this Court decided that, under article 100 of the Constitution, tlio verdict should have been recorded in the English language, under pain of absolute nullity. 15 An. 648. The cause was remanded" for a now trial; and, in the court below, the idea of autrefois convict uras filed on behalf of the prisoner.

It is a principle of the common law, that no man is to be brought into jeopardy more than once for the same offence; hence a former conviction or acquittal will bar a subsequent prosecution. But the acquittal or conviction must bo a legal one, upon trial by verdict of a petit jury. There must bo a legal acquittal or conviction by verdict, i. e., the verdict must be a valid one, not subject to be set aside. If the court awards a new trial upon quashing the verdict, whether at the instance of the prisoner, or, in special c-ases, on the application of the prosecution, it is evident that, in the eye of the law, the accused has not been in jeopardy. The contrary opinion is illogical; and, wore it to prevail, would entirely do away with new trials. State v. Hornsby, 8 R. 583. The verdict must 'be such a one as. the court may act upon, and the conviction susceptible of being followed by sentence. State v. Ritchie, 3 An. 715.

It is therefore ordered and decreed, that the judgment of the District .Court be avoided and reversed; that the verdict of the jury be set aside; and "that this cause be remanded for a new trial.


text:
    A. Xiques, Syndic, v. F. Rivas et al.
    No contract .can bo avoided unless made in. fraud of creditors» If made in good faitli it cannot be annulled, although it prove injurious to the creditors.
    No sale of property, or other contract made in the usual course of the party’s business, nor any payment óf a just debt in money shall bo avoided, although the party was'in insolvent circumstances, "and the person with whomliQ contracted, or to.vjhomhe made the payment, knew of such insolvency.
    Appeal from the Fifth' ^District Court of New Orleans, Dggles'ton, J.

    ' Durant & Horner.' for'plaintiff. ' Deiyjamin, Bractfohl & Mivnetj,-iov defendants and appellants.
   Merrick, C. J.

This Suit was brought by the syndic to' set aside the sale of a lot of cigars sold by the insolvent to the defendant a day or two pfevioiis to the surrender, on the ground that this sale gave’the defendant an unjust and fraudulent preference over the other creditors.

The testimony in the case is somewhat meagre, but we gather from it the following facts: -

The defendant, Bivas, was a wholesale dealer in cigars. The insolvent, A. Hernandez, was both a wholesale and retail dealer- iii the same articles. The cession took place ábbut the'15fh of April,-1858,■ as appears from the oral testimony; the insolvent proceedings not being in evidence.

From September 7th, 1857, to April 13th, 1858,' inclusive, the insolvent, Hernandez, bought cigars of Bivas in various- quantities, in- value at a time from $12 to'$484 50, the sales of the last mentioned day. The sum total of sales during the period was $4,702-23. ' -Hernández was allowed a few days credit, although the sales appear to ha^e been- for cash. 'About the 14th of April, 1858, Bivas, the defendant, being the' creditor of Her-iiahdez'in the sum of $574 87, b ought -of-him -tifo kinds-of cigars,-which Hernandez himself had bought and imported from Havana; amounting to $585, and over-paying himself $10’ 13. 'The suit is brought'to set aside this sale. ■• ' • ‘ ' ■' ' - ■ - ■ - - ■ -

JV M. Hernandez, the plaintiff’s only'witness, and; the clerk and brother of'the -insolvent, gives the-following account'of ‘the transaction; viz; ‘1 Being asked to look at the bill -annexed- to plaintiff’s petition, 'says the cigars therein mentioned were sold-by-him to-Mr. Bivas-on-the date of the bill;” (April 14, 1858) “ and about- two or three -days- before the session. Bivas did not pay cash for the cigars. The transaction was this:' Witness, a few days before, had purchased'a :lot of cigars-from1 Bivas-for-cash. Thfee ór fotir days affcer, about tlfé'14th‘; Mr. Bivas'-came to witness-’store. He told Bivas he had orders from his'brother, A. Hernandez,' to .pay-his "BivaS said it'Was'all fight;'but that h'é liad'g'dt-án oídéf fóf eértain cigars which he did not have in his store, but as witness líád them in the store, and asked witness the price of said cigars, Rivas then said the price suited him, and he muela preferred them instead of the money that A. Hernandez owed him then. He would take said amount in said brand of saict cigars.' He Wanted them:-' The transaction was liiadd^aH&iihere wasfc about $10 over, which was due fróin Rivas; and this is how Rivas got the cigars in lieu of money due by A. Hernandez.” In another place he says, the cigars were sold at a regular price, and that he did not suppose Rivas knew the situation of the affairs of Hernandez. “Witness did not.know, at that time that Hernandez could not pay his debts.- All the bills were paid as they were presented, at that tiine.” “ The'Order witness got from his brother was to pay Rivas the amount of his claim, about $400 and some dollars, and he had at one time sufficient amount in the store to «pay. him; that is aaot in cash, but bills he had to collect on that day; also the' cash receipts from the other stores.” . ■■ • - - • -

' This festiihoiiy,' Wliieli ca-hnobfe controverted-1 >y-jdlaintiff, doesmafcají-pe'ar to us tb b'riilg’the cash Within' tlíé--rule established -in ithei cases«ejfVj Debon v. Bache, 1 M. R. 240; Ritchie v. Sands, 10 M. R. 704. Cansfield v. Maher, 4 N. S. 174; and Coddington v. Tapper, 4 L. R. 127.

In the case at-bar, the goods' Sold by ¡Rivas -to 'Hernandez were,sold!j nominally for cash-.' :A considerable portion; at least,-of'the--‘cigars sold-1 on'the 13th of April by'RiVas to the insolvent, were''surrendered to.-the:-; erfeditors. The insolvent, with1 ability so to do, had offered to pay ¡Rivas;’j The sale from the ‘fdíóner “-td'-'the' latter was in the due course ef-Hmideás-. of Hernandez, and it'may also be" inferred, of Rivas. Rivas was in good:faith, and there was nothing remarkable in his desire to'purchase1 (to sup-,.-, ply a customer) á‘ pif tiofilai' brand which -Hernandez himself'had- selected« at 'Havana: - '• ■ ■

The case does not therefore elearly'sliow that "the creditors have been'-: iiijú’red by the sale.’ 'Had-'it not-'taken'place; Rivas Wóuldffiave:hítd'Ms>. money) !ór át least his venclor;-s '¿uivilégb- upon the'cigws‘sold-by.-him kndo surrendered. i

ithe' transaction,' although' 'differing from 1 all iirevioíis 'ónés-'between these parties, was in tlie fisiial course of business of the two hotisesyfdr-theybótii:bbaiglit’ánd: sol'd by'thó wholesale. : . - • •> ••

TÍie"'defendan't'íi.ppeárs, tlíéréfóre, to- be protected by article 1981,- .and: the latter clause of article 1973 of the Civil Code. "-u l!i-r'f "J

li^istherefore ó'rdéred,: adjudged and'decreed by-the- Court,-that the judgment of the'lower ijonrt b'e: avoided and reversed; and that there be« jiidgnieiit'in' 'this 'Coui’tín favoTóf the defendant, with costs of both coúrts‘.- ) ’i ’<■[> ' ■ •} Í ”5 ►*•»! ; >*ííf