author: Rost, J. Eustis, C. J.

text:
    The Town of Carrollton v. W. Jones and Wife.
    Towns and cities may be projected, and streets, public squares androads, may belaid out on plans; but so long as the ground remains enclosed and no portion of it is sold with reference to those plans, and no express dedication is made and accepted by the proper authority, the right of the owner to the soil which those streets, public squares and roads cover, is not affected thereby.
    No particular form of words is necessary to effect a dedication to public use; but to render it binding, it is necessary not only that there be some act of dedication on the part of the owner, but there must also be something equivalent to an acceptance on the part of the public. In analogy to other contracts, the concurrence of two parties is necessary to pass the right.
    When neither the dedication nor the acceptance are express, the rights claimed in behalf of the public, must be supported by long continued usage.
    from the District Court of the Third Judicial District, J. Calvitt Clarke, J.

      Roselius, for plaintiffs.

      Beecher, for defendants.
   By the court:

Rost, J.

The plaintiffs, a municipal corporation, complain that the defendants have obstructed and closed up certain streets in the town of Carrollton, and seek to have the streets opened and the obstructions removed. They also claim damages.

The answer of the defendants is a general denial, and they have appealed from the judgment rendered against them in the district court.

The town of Carrollton was originally laid out in lots of sufficient size for gardens and small rural estates. The defendants are now in possession of a portion of one of those lots, measuring 215 feet 7 inches front on Levee street, by a depth of over 1200 feet. It is proved, that previous to the year 1837, and ever since that time, this lot has been surrounded with a close fence, and cultivated as a field, and that no part of it has at any time been thrown open to the public use.

The proprietors of the remaining portion of this lot and of the adjoining lots, have found it to their advantage to divide their land into building lots, by running streets through them, and the streets, mentioned in the petition, have thus been opened in their whole length, except through the ground of the defendants.

The plaintiffs insist that the defendants and those under whom they claim, have long since dedicated to the public the soil over which these streets pass, by various plans and conveyances made with reference to said plans,

The first plan to which they refer, is that made by Benjamin Bwisson, surveyor of the parish of J efferson, deposited in the office of Trl. B. Cenas, notary public, by Mrs. Brewer and others, who subsequently caused the property to be sold according to said plan; at which sale the defendant, William Jones, purchased one of the lots.

In the plan referred to, the streets claimed are not represented as running through the land of the defendants. They stop at their lower line, and only run through the remainder of the original lot of which they own a part. The fact that William Jones recognized the existence of those streets within the limits of the plan, cannot be taken as proof of dedication on his part.

The plaintiffs’ counsel has referred us to another plan, which the defendants caused to be made by John Schreiber on the 15th March, 1836, on which all the streets claimed are laid off and figured. They allege that the defendants have made various sales of property with express reference to said plans, and, among others, a sale of six lots to Stephen A. Sharp, on or about the 11th January, 1836. They also show a special mortgage granted by the defendants to the New Orleans and Carrollton Railroad Company, in which the property is mortgaged by town lots, according to the division made in the plan of Schreiber.

The sale to Sharp could not have been made with;reference to the plan of Schreiber, which bears date more than two months subsequent to it, and we have already stated that Buis son's plan was no evidence of dedication by the defendants.

It is true, that in the plan, of Schreiber, the streets claimed are laid out and recognized, and that the defendants mortgaged the property to the New Orleans and Carrollton Railroad Company according to that plan. Whatever right a mortgage thus made might have given to the company, if the loan made by them had not been paid, we are unable to perceive that, unattended as it is by possession in the public, it can confer any upon the plaintiffs. Towns and cities may be projected, and streets, public squares and roads, may be laid out on plans; but so long as the ground remains enclosed and no portion of it is sold with reference to those'plans, and no express dedication is made and accepted by the proper authority, the right of the owner to the soil which those streets, public squares and roads cover, is not affected thereby.

We admit that no particular form of words is necessary to effect a dedication. But it is indispensable that the owner shall clearly manifest an intention to dedicate the land to public use, and that the public should, relying upon that manifestation, have entered into the use and occupation of it in such a manner, as renders it unjust and injurious to reclaim it.

To render a dedication to public use binding, it is necessary not only that there be some act of dedication on the part of the owner, but there must also be something equivalent to an acceptance on the part of the public; in analogy to other contracts, the concurrence of two parties is necessary to pass the right. State v. Trash, 6th Vermont Rep. 355.

When neither the dedication nor the acceptance is express, the rights claimed in behalf of the public must be supported by long continued usage.

There are facts in the record inconsistent with the intention of the defendants to dedicate to public use, some of the streets claimed. About the time the plan was made, upon which this dedication is based, the defendants were building a house, which stands in part, in one of those streets, and in which they have lived ever since.

We are of opinion that the plaintiffs have failed to show the dedication alleged. It is therefore ordered, that the judgment in this case be reversed; and that there be judgment in favor of the defendants, with costs in both courts.

Same Case — On a Re-hearing.

Eustis, C. J.

The object of the present suit, was the extension of certain streets in the town of Carrollton, through the land of the defendants. The decision of the court was 'against the plaintiffs. A're-hearing was granted, and a further argument has been had.

The land through which the projected streets are sought to be extended, has been enclosed and cultivated since the year 1837. Part of the dwelling house is within the line of the streets. No act of use or occupation on the part of the plaintiffs or the public, has been shown in relation to the space now required for streets.

It appears, that in a sale of part of the land to a person named Sharp, the streets were laid out on a plan, according to which the sale was made, and that a mortgage was made, according to a similar plan of the land, in favor of the Carrollton bank. The sale was made in 1837, and the mortgage in 1838.

Whatever rights Sharp may have of way or servitude on the land designated as streets, he forbears the exercise of them, and contends that the whole property remain in its present condition. The mortgage creditors did not exercise their rights, and we may assume that the debt is paid.

Neither was this plan ever submitted to the municipal authority for approval or acquiescence.

As the matter stands on the evidence, the plaintiffs are seeking to enforce their claims, not in furtherance of the rights of Sharp, but adversely to him.

We think the former judgement is clearly right, and it is accordingly affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Oakey and Hawkins v. Executors of A. Gordon.
    Defendant owned the Mexican Gulf Railroad, and also a steamboat which ran from Pearl River to Proctorville, the gulf terminus of the road. At the former point, cotton was shipped to plaintiffs under a bill of lading given by the captain of the boat, binding him to deliver the cotton at the port of New Orleans, unavoidable dangers of the navigation and fire, only excepted. The cotton was transferred. from the vessel to the cars and destroyed by fire, issuing from the chimny of the locomotive, in transit to New Orleans. The court held, that the contract to carry the cotton was entire, and the exception in the bill of lading against loss by fire, extended as well to loss on the cars as on the boat, and that defendant was not bound for the loss.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for plaintiffs.

      H. H. Taylor, for defendants.
   By the court:

Rost, J.

This is a suit to recover from the Succession of Alexander Gordon, the value of certain cotton, destroyed by fire on the cars of the Mexican Gulf Railway, which is the property of said succession. It seems that Gordon and others were the owners of the steamer M. A. Moore, habitually running from West Pearl river to Proctorville, at the lake end of the railroad. The cotton in controversy was shipped on the steamer at the former port, and the captain gave bills of lading, binding himself to deliver it at the port of New Orleans. It was landed at the lake end of the railroad, placed on the cars, and, in the transit from that place to New Orleans, destroyed by fire, communicated by sparks issuing from the chimney of the locomotive.

The defence as to all the cotton destroyed but one bale, is, that it was included in a bill of lading which excepted the dangers of fire.

It is urged by the plaintiffs and appellants, that this exception in the bill of lading should be limited to the dangers of fire on board of the steamer; that the perils of the sea and the dangers of fire ai'e found in the same clause of the bill of lading, and should both be considered as having exclusive reference to the sea voyage.

We think there is nothing in the bill of lading to authorize such a limitation to the exception. As was observed by the distract judge, the contract to cai'i'y the cotton from West Pearl river to the port of New Orleans, for fifty cents a bale, is entire; and, as nothing shows any intention to divide the risk, the clauses and exceptions in the bill of lading must be considered as entire. The transportation, partly by steamei-, and partly by railway, was within the usage of trade. It is reasonable to believe that it was in contemplation of the parties, and it might be inferred fx’om the evidence, that the gx’eater risk of fire on the railway was the cause of the exception in the bill of lading. The defendants have the same right to avail themselves of this exception, that the captain of the steamer would have.

One of the bales of cotton destroyed, was included in the bill of lading which did not except the dangers of fire; and, if the fact had been brought to the notice of the district judge on the trial, it is manifest, from his opinion, that he would have given judgment'in favor of the plaintiffs for its value; or, if the plaintiffs had made this erx’or in the judgment the gxuund of an application for a new trial, it is equally clear that the application would have prevailed. But, as neither was done, we think the matter in controversy is not of sufficient amount so authorize a reversal of the judgment. See Hann v. Graihle, 2 Ann.

Judgment affinned.


text:
    Payne and Harrison v. Same.
    APPEAL from the Fourth District Court of New Orleans, Strawlridge, J.
   By the court:

Rost, J.

This case is identical with that of Oakey and Hawkins v. The Executors of Gordon; and, for the reasons therein given, the judgment must be affirmed.


author:
Etjstis, C. J.
      Lea, J.

text:
    Thomas K. Price et al. v. C. M. Emerson.
    A note which has been filed in a court of justice by a party litigant in a suit, cannot be seized under execution against a third party who has no apparent title to the property seized.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micou, for plaintiffs.

      Durant and Iiornor, for defendant.
   By the court:

Etjstis, C. J.

For the reasons given by the district judge in his written opinion on file, this judgment is affirmed, with costs.

Judgment of the District Court:

Lea, J.

The plaintiff in the rule,holding an execution directed to him, as sheriff of the parish of Orleans, from the Fifth District Court of New Orleans, in the suit entitled Harrod and Moody v. John McHenry, seeks to levy upon certain articles deposited in the Second District Court in the suit of Thomas K. Price et al. v. C. M. Emerson. The proceeding resorted to is, that of a rule taken on the plaintiffs, T. K. Price et al., to show cause why the notes filed in the above entitled suit, should not be delivered to the sheriff under the order of the court.

The proceeding resorted to in this case is, perhaps, unexceptionable so far as relates to its form. On this point, however, the supreme judicial tribunal of the State, while they have determined that a seizure cannot be made in the hands of the clerk, have abstained from designating any form of proceeding by which notes, deposited in the files of a court, may be made the objects of a seizure in execution. The language of the courtis as follows: We are not called upon to point out a mode in which we think promissory notes in suit and on the files of the court, can be seized and sold under art. 642 of the Code of Practice; a rule that we might under our present impressions prescribe, might work badly in practice and produce difficulties which we do not at present foresee.

Upon the. authority of this decision, I should be disposed to recognize the validity of the seizure made in this case, and to order the delivery of the notes to the seizing creditors, if the apparent title to the notes was in the defendant in execution; but in fixing a rule of practice which may serve as a precedent in future litigation, so far as relates to proceedings in this court, care should be observed to confine its application in such a manner, as, if possible, not to work badly in practice nor to produce unforeseen difficulties.

If the evidences of debt filed by litigants in courts of justice, for the purpose of enabling them to prosecute their rights, can be thus summarily seized upon, without a trial, or at least without such trial as will suffice to test a question of title by parties apparently without color of title, litigants would be deterred from the prosecution of their claims, not only by the insecurity which would attach to the possession of their property, but by the inconvenience and confusion whióh would be created by the interference of seizures made at the instance of persons, who might or ought not to be creditors. Such a rule of practice would certainly result in great confusion.

I am not prepared to say that the plaintiff in execution has acquired no rights under the proceeding had herein. It is true, that possession is of the essence of a seizure, and it has been frequently held that no valid seizure of tangible property can be made without taking it into possession ; but in the absence of express law, and I know of none applicable under our jurisprudence to a case like the one at bar, it might be within the power of the court, in virtue of the equity powers conferred by art. 21 of the Civil Code, to recognize the proceedings as conferring inchoate rights to be established and matured upon proof made under proceedings had by intervention or otherwise. Be this as it may, I know of no instance in which a note, which has been filed in a court of justice by a party litigant in a suit, has ever been seized under execution against a third party defendant, who had no apparent title to the 'property seized.

The court, having duly considered the rule taken in this case on the 26th November, 1851, by John L. Lewis, sheriff, on Thomas C• Poole, clerk of this court, for the reasons assigned in the written opinion this day delivered and on file: It is ordered, that the rule taken in this case be dismissed, the plaintiff therein paying the costs incident thereto without prejudice to the rights of Harrod and Moody, the creditors seizing in execution, if any they have in virtue of this proceeding, to be asserted hereafter, in any subsequent proceeding had herein according to law. It is further ordered, that the clerk of this court do retain the notes filed herein, subject to the further order of the court in the premises.


author: Etjstis, C. J.

text:
    Trasimond Landry v. Dickson and Boyken.
    Where the citation of a garnishee contained the title of the court, was in the name of the State and under seal of the court, was tested in the name of the judge and signed by a deputy clerk, and directed the garnishee to answer in writing, under oath, the interrogatories annnexed to the petition within ten days of the service, otherwise judgment would be entered, &c. It was held to be a sufficient mention of the place where the clerk’s office was held, and also a sufficient indication to the garnishee of the place where his answers were to be filed, under the 179th article of the Code of Practice.
    Article 252 of the Code of Practice, seems not to require that the citation to a garnishee, is to be precisely in the same form as the ordinary citation to a defendant.
    Where there was no palpable and radical defect in the citation, the petition to annul the judgment which had been obtained, should contain an allegation, that the defendant had not been legally cited, otherwise it will not be competent to attack the judgment on that ground.
    An objection that French is the vernacular tongue of defendant, and that the petition and citation were in English only, must be plead in limine litis.

    The 27th article of the Constitution, does not exempt the Lieutenant Governor from the service of civil process.
    Inproceediugs against a garnishee, who has neglected to answer, his neglect is considered in law as a confession, that he has property of the debtor, and neither judgment by default, nor a rule to show cause, is necessary to fix his liability.
    APPEAL from the Third' District Court of New Orleans, Kennedy, J.

      Durant and Horner, for plaintiff.

      Stocton and Steele, for defendants.
   By the court:

Etjstis, C. J.

This suit was instituted to annul a judgment rendered in favor of the defendants against the plaintiff, for the sum of §¡¡990 .06 and interest, on a garnishee process under an execution issued on a judgment, which the defendants had obtained against David,Meyers, in the Third District Court of New' Orleans. There was judgment for the plaintiff, and the defendants have appealed.

The grounds of the plaintiff, as alleged in his petition, are these, according to the summary in the brief of counsel: 1st. That the domicil of the plaintiff was in the parish of Ascension, and that he was therefore not amenable to the process of the court, or subject in any manner to the writ of fieri facias or proceedings under it. 2d. Because the petition and citation'of garnishment are insufficient and illegal, they being in the English language only, and French being his mother tongue. 3d. Because the judgment was rendered against him without any judgment by default being first taken, or any issue made, or any rule taken against him. 4th. Because the plaintiff was, at the time of the service of the process upon him, the Lieutenant Governor of the State and president of the Senate, and the Senate was then in session, and no process could issue to compel his attendance in court. 5th. Because said judgment was never notified to him in any lawful manner, and, by law, he was entitled to said notice and to an appeal to the Supreme Court ten days after notification. 6th. Because at the time of the service of the garnishee process he owed the defendant, Meyers, nothing, and had no property of his. 7th. Because the judgment was unduly and improperly obtained by the attorneys for the plaintiff in the original suit; that the judge of the district court signed the order for the present plaintiff to answer, under oath, the interrogatories to him propounded, under an error in the hurry of business, under a misapprehension of facts, and without the name of the petitioner being inserted in the order; that it was well known to the court and to the attorneys, at the time, that the plaintiff was the Lieutenant Governor, and the Senate was then in session, and that he was in the discharge of- his public duties, and was temporarily in New Orleans, where he did not reside; that when the process of the court was attempted to be served upon him, he minutely explained the whole case to the deputy sheriff, who had the process, and satisfied that person that he, the plaintiff, had no property in his hands belonging to Meyers, nor was he in any manner indebted to him ; and then and there offered to the person representing himself as the sheriff’s deputy, to go with him immediately to court and answer the interrogatories; whereupon the deputy sheriff then told him, the plaintiff, that he was perfectly satisfied that the plaintiff had no money or property of any kind belonging to Meyers, and was not indebted to him; that it was not worth while for him, the plaintiff, to go down to court and answer the interrogatories, and that he would inform the defendant’s attorneys of the facts of the case as represented by the plaintiff, and that these gentlemen would be perfectly satisfied.

The district judge decided the case on grounds not taken by the plaintiff in his petition. He considered the citation in the garnishment as defective in two respects; 1st, that it did not command the garnishee to deliver his answer in the clerk’s office; and, 2d, that the citation makes no mention of the place where the clerk’s office is held. For these reasons, he annulled the judgment rendered against the present plaintiff.

In the proceedings in garnishment, the judgment creditors filed their petition, in which they alleged, that they believed Trasimond Landry had in his possession, property of the debtor, or was indebted to him in an amount exceeding twelve hundred dollars. They ask for process against Landry as garnishee, and that, after due proceedings had, the property or debt in the hands of Landry may be applied, by judgment of the court, to the satisfaction of the execution in the hands of the sheriff. Interrogatories were annexed to the petition, and the judge directed the “ garnishee herein named,” to answer the interrogatories within the legal delay. The sheriff returned, that he had served a copy of the petition, interrogatories and citation, personally on the plaintiff, on the 8th December, 1843. On the 9th of January, 1849, the garnishee having failed to answer the interrogatories, judgment was rendered against him for the amount due on the execution.

Several executions were issued against Meyers, on the judgment against him, without any success. On the 4th December, 1849, an execution was issued against the plaintiff, directed to the sheriff of the parish of Orleans, which was returned at the instance of the attorney of Diclcson and BoyJcen, and another execution was issued against Meyers. On the 2d of March, 1850, an alias fieri facias was issued against the plaintiff. Proceedings under this execution were enjoined at the instance of the plaintiff in the present action, and the petitioner asks, that the judgment against him be annulled, and the injunction granted, be made perpetual.

Having thus stated the proceedings, it remains to consider the several grounds presented in the plaintiff’s petition, and those on which the judge decided to annul this judgment. To begin with the latter.

The objections to the validity of the citation, are, that it does not command the garnishee to deliver his answer in the office of the clerk of the court; and contains no mention of the place where the clerk’s office is held. Both of which are required under the 179th article of the Code of Practice.

The citation in this case contains the title of the court, “ Third District Court of New Orleans,” and is in the name of the State, and under the seal of the court. It is tested in the name of the judge, and signed by a deputy clerk. It directs the garnishee to answer in writing, under oath, the interrogatories annexed to the petition within ten days of the service, otherwise judgment will be entered, &c.

The citation thus indicating in its title, that the Third District Court is held in New Orleans, and the clerk’s office being in point of fact and practice inseparable from it, the objections to its sufficiency seem to us too technical, even supposing that the citation to a garnishee is to be precisely in the same - form as the ordinary citation to a defendant, which nevertheless the article 252 of the Code of Practice seems not to require. But the answer given by the counsel for the defendants to these objections is, that they are not presented by the pleadings and cannot be noticed by the court. He refers to Landry v. L’Eglise, 3 L. R. 220, and 10 L. R. 169, Palmer v. Yarborough.

The annulling of a judgment rendered by a court of competent jurisdiction, is one of the gravest matters in the administration of justice. The code enumerates the causes for which a judgment may be annulled for defects of form. Code of Practice 604 and 605. One of them is, that the defendant has not been legally cited. This not having been alleged in the petition as one of the grounds on which the plaintiff asks to be relieved from this judgment, and it being not a palpable and radical defect, as the citation reads, we think it is not competent for the defendants to insist on the nullity of the judgment on that account.

In the case of Leeds v. Debuys, 4 R. R. 258, which was an appeal taken from a judgment by default, it was urged in argument on the part of the defendant, that French was his native tongue, and the petition and citation served on him being in the English language only, the judgment by default against him ought to be reversed. But the court held, that the right of the defendant, of requiring the petition and citation served on him to be in the French language, was one of those, like domicil, alienage, official exemption, &c., and must be urged in limine litis or considered as waived.

" This authority disposes of the first, second and fourth grounds for annulling the judgment. In relation to the fourth ground, it may be added, that the 27th article of the Constitution does not exempt the plaintiff, as lieutenant governor, from the service of civil process. It exempts the members of the general assembly, except in certain cases, from arrest, only during their attendance at the sessions of their respective houses, and going to and returning from the same. It is clear, that all matters of privilege must be taken advantage of by writ or be pleaded.

As to the third objection, that no judgment by default was taken against the plaintiff, or rule to show cause, it is sufficient to say, that the law requires neither. If the garnishee neglects to answer, his neglect is considered in law as a confession that he has property of the debtor, and judgment is accordingly rendered against him for the plaintiff’s debt. He is entitled to no notice from the plaintiff of his purpose to proceed against him. Sturges v. Kendall, 2 Ann. 566. Pavageau v. His Creditors, 13 L. R. 354.

The fifth objection taken by the plaintiff, that the judgment was not notified to him in a lawful manner, has no relation to the validity of the judgment.

The sixth objection, that he owed Meyers nothing, and had no property of his at the time of the service of the process on him, is closed by the plantiff’s n^¡lect in not answering the interrogatories propounded to him. Uno cuique mora swa nocet.

There is nothing in the objection that the plaintiff’s name was not mentioned in the order of the judge, directing the garnishee to answer the interrogatories. The judge ordered “ the garnishee herein named” to answer. Nor is the charge of even haste or misapprehension on his part, in any point of view, admissible or sustained by the shadow of proof.

The petition charges as one of the reasons for which the judgment ought to be annulled, that it was unduly and improperly obtained by the attorneys of the defendants. The particular acts of impropriety are not alleged, unless the narrative of the conversation between the plaintiff and the sheriff’s officer is considered as containing them. It is not even alleged, that the attorneys were privy to what passed between those persons.

The testimony of the sheriff’s officer and of another witness, was offered on behalf of the plaintiff, and not received by the court, on the ground, that no evidence was admissible which might have been offered previous to the judgment against the plaintiff.

The evidence is all before us, and ought to have been admitted, had the allegations of the petition been sufficient to authorize the court in annulling the judgment on the ground of fraud or ill practices. But we are of opinion, they are not. The general allegation that the judgment was unduly and improperly obtained by the attorneys, is not sufficient. Those words amount to a complaint which can always be made, in one sense, against what is called, in common parlance, a snap judgment. The. article of the Code of Practice relied upon by the plaintiff’s counsel, shows clearly what is the character of those ill practices for which judgments may be annulled.

A definitive judgment may be annulled in all cases, where it appears, that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered, as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents; or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering the judgment.

'The depositions make out no case of this kind, according to our understanding of them, and we do not feel authorized to remand the case on account of this evidence, because the allegations of the petition in relation to the ill practices complained of are not sufficient, and, if it was received, would make no change in the result. The case has been argued at bar on the effect of the evidence, of which the plaintiff has had the benefit. The whole difficulty in which he has involved himself, results from his not having heeded the process of the court, and obeyed the order of the judge to answer the interrogatories propounded to him, or, not being bound to answer, in not having exhibited to the court the sufficient reasons to excuse him. He thought proper to commit his interests to an irresponsible person, and to suffer himself to be mislead by his advice, instead of following the written directions of the process served on him. Whatever consequences have followed from this course, they are to be attributed to the plaintiff’s own neglect, and there is no propriety in straining the law, to relieve a party in such a case.

The fifth objection, we have stated, has no relation to the validity of the judgment. It is urged as a sufficient ground for sustaining the injunction.

The Code of Practice provides, that the plaintiff cannot take execution until after ten days from the notification of the judgment to the defendant. Article 624. The judgment in this case having been rendered without the appearance of the defendant, he is entitled to this term; and his right of appeal also may be reserved to him to date from the service of the judgment. The judgment does not appear to have been notified to him in the mode which the law requires, and, upon motion, it would have been competent for the plaintiff to have had the execution against him quashed. The courts in New Orleans were in session at the time the writ of execution issued and continued open for months after, thus affording to the plaintiff ample means for relief. From the correspondence which took place between the plaintiff and the attorneys of the defendant, we think the plaintiff is precluded from urging the non-notification of the judgment, as a ground for arresting the execution by way of injunction.

The judgment of the district court is therefore reversed; and the petition of the plaintiff dismissed, with costs in both courts, with forty-five dollars damages for extra interest.


author: Preston, J.

text:
    Richards and Alfred v. Edward Burke.
    Article 2497 of the code, which excludes from the class of redhibitory vices those defects which are apparent, does not relate to such defects as are concealed by reason of the thing purchased being in a box, barrel or package.
    Where the plaintiff purchased potatoes, in barrels, and shipped them to Shreveport, and, on opening the barrels there, the potatoes were fo'uud to be in a rapidly decaying condition, it was held, that the plaintiff could rescind the sale without offering to return them.
    from the First District Court of New Orleans, Larue, J.

      Wolfe and Singleton, for plaintiffs.

      Frank Haynes, for defendant.
   By the court:

Preston, J.

In February, 1851, the defendant sold to the plaintiffs a lot of one hundred and fifty barrels of Irish potatoes, for $2 30 a barrel, amounting to three hundred and forty-five dollars. They were immediately shipped to Shreveport, and on arriving 'there, after an ordinary passage of three or four days, were sold to a merchant of that place for $3 20 a barrel. But on examination they were found to a great extent rotten, and so worthless, that he refused to receive them.

The plaintiffs allege, that they were unsound when purchased, and claim from this defendant, their vendor, the price they could have obtained for them at Shreveport, if sound, as damages.

The district court, on conflicting testimony, has determined that the potatoes were unsound when sold. On this question of fact, the testimony produces the same impression on our minds; and, at all events, we could not disagree with the conclusions of that court, unless the testimony was clearly unsatisfactory.

It is said the defect, if it existed, was apparent, and therefore the redhibitory action cannot be maintained. The article of the code relied upon, relates to such defects as are apparent to the senses, without opening boxes, barrels or packages, to discover them by examination, and not to those which are concealed without this examination.

For the same reason, the fact that the master of the steamboat shipped the article as in good order, is no evidence of its intrinsic quality. The bill of lading referred only to the external condition of the barrels. The shipper could not recover on it for the unsoundness of the article.

The potatoes having been found, at Shreveport, in a rotten and rapidly decaying condition, were immediately disposed of at auction and otherwise. The evidence is conclusive, that the best ■ disposition possible, was made of those which are accounted for. The suggestions so 'much pressed by the defendant’s counsel, that they should have been stored at Shreveport on account of the defendant, and notice given to him; or, that they should have been reshipped to New Orleans and tendered back to the defendant, are entirely out of thequestion, under the circumstances. The master of the boat testifies, that he would not have brought them back to New Orleans for them.

There is no evidence that the defendant knowingly concealed the unsoundness of the potatoes from the plaintiffs, or in any other respect acted in bad faith. The district court erred, therefore, in allowing as damages the price for which they might have been sold, if sound, at Shreveport. The plaintiffs are entitled only to the price they gave, deducting the net proceeds of those for which they account, and the price, per barrel, of those for which no account is rendered.

The account will stand as follows: The price received by the defendant for 150 barrels of potatoes, $345. Deduct the net proceeds of sales at Shreveport, $66 73. Thirty barrels unaccounted for, at the original price, $68 70 — $136 03. Due by the defendant, $208 97.

The judgment of the district court is reversed; and it is decreed, that the plaintiffs recover from the defendant the sum of two hundred and eight dollars three cents, with interest from the 7th of May, 1851, till paid, and costs in the district court. The plaintiffs and appellees are condemned to pay the costs of the appeal.


author: Slidell, J.

text:
    Joseph Rafel v. The Nashville Marine and Fire Insurance Company.
    Conditions attached to a policy of insurance form part of the contract.
    One of the conditions of a policy was in these words: “ Goods held in trust or on commission, are to be declared and insured as such, otherwise the policy will not cover such property. Goods on storage must be separately and specially insured.” The assured held the goods in pawn, he therefore held them in trust; and, as he made no declaration and insurance, according to the condition of his policy, they were not covered by it.
    A clause in apolicy, covering ‘-jewelry and clothing, being stock in trade,” does not include such articles as musical instruments, surgical instruments, guns, pistols, books.
    THIS case was tried by a jury, before Lame, Judge of the First District Court of New Orleans.

      M. M. Cohen, for plaintiff.
    As to the law of this case. Description of the subject insured in policy. 1 Arnould, 210, citing Emerigon, c. x, v. 1, p. 292, ed. 1827. 1 Arn. 212 — That under a general policy on goods, bullion, coin and jewels are insurable when put on board for the purposes of commerce; and in note (z) to ibid., goods, wares and merchandise will cover dollars, if entered at the customhouse. Arnould, 214 — So. whalebone, oil, &c.; and the reason is that in whaling voyages it is the only cargo: citing 4 Pick. 429. Coin is protected by a policy on cargo or freight, 10 doubloons ; citing Phillips on Ins. 66. Marshall!, b. 1, chap. 7, § 3. Roccus, n. 7. 1 Phillips, 185. 1 Arn. 216 — An insurance on gold or silver will cover the loss of a gold cup or silver spoons; citing Emerigon, chap, x, § 1, vol. 1, p. 293, ed. 1827. 1 Arn. 217 — Provisions are comprised under the word furniture; so are all the stores and tackle : so outfit is included in insurance on “ship.” 1 Arn. 219 — The nature and extent of the interest- in his ship need not be disclosed on the face of the policy. S. P., 1 Arn. 216, 7, 8, citing 1 Phillips, 1689. “Profits and commissions covered by an insurance on property. Holbrook v. Brown. 2 Mass. 280. Cited 1 Phillips, 192. Pritchett v. Insurance Company of North America, 3 Yeates, 461.
    Of insurable interest: It is not necessary to have an absolute vested ownership or property; but it is sufficient to have a right in the thing insured or a right derivable out of some contract about the thing insured giving benefit from preservation, and prejudice from destruction. 1 Arn. 229, 30. Any creditor having a claim on property pledged to him for advances, has an insurable interest to the extent of his claim. 1 Arn. 251. The trust is as to the surplus, as in case of mortgagee insuring. 1 Arn. 252. Pledgee has an insurable interest. 1 Arn. 253.
    Assured need not disclose what the underwriter ought to know, ex. facts comprised in the general usages of trade, (1 Arn. 559, 60,) such as that under terms “jewelry and clothing,” are included spoons, pistols, velvet, &c. Every well settled or generally known usage of trade is, prima facie, considered to form part of the policy. 1 Arn. 66. Terms used in a secondary sense may be explained by parol. 1 Arn. 76. Evidence of usage admitted to show that the term corn is meant to comprehend every sort of grain, and also beans, peas and malt. Ib. So, on a policy on furs, held, that plaintiff could show in evidence that the term “ fur,” covered the “ skins ” in the invoice.
    The usage of trade may be proved by merchants dealing particularly in that article. Underwriters are bound to know the mercantile meaning of words, and are liable according to that meaning. 7 Cowen,-202. Asior v. union Insurance Company. 8 Humphrey’s, 684. Mortgage is immaterial.
    The measure of damage is the amount of damage, and the interest on that sum. Ellmaker v. F. F. Insurance Company, 5 Barr. 183.
    Construction: 3 Harr. 480, Rafferty v. N. B. F. Insurance Company. 18 Pick. 419, Fletcher v. Commonwealth Ins. Company. 1 Story, 360, Palmer v. Warren Ins. Company. 2 Met. 1, Whelon v. Old Colony Ins. Company. 2 Anthon, 114, Huplanty v. Com. Ins. Company. 23 Wendell, 525, McLaughlin y, N. C, Ins. Cq, 1 Arnould, 65, note.

      Policies are to be construed largely for the benefit of trade and of the assured. Hillyard, 201, marginal paging. 1 Duer, 161, § 5, 6, 8.
    As to trust: 1 Arn. 251. L. C. 310, Pawn. A statement less inpmount than what he is legally entitled to, does not estop from claiming a large amount, if a settlement is not made pursuant to such statement. Am. Ins. Co. v. Griswold, 14 Wend. 399, Stock in trade, includes tools, fixtures and implements of a mechanic, as a baker. 2 Hall, 490. Silver spoons included in household furniture. Ib. As to carpenter and interest. Ib. 589. A general description sufficient. 5 R. R. 424. Defendant presumed to insure with knowledge of all the circumstances. 1 Hall, 42.
    The case was tried by a jury, and their verdict resolves the meaning of the terms jewelry and clothing, &c., in accordance with L. C. art. 1941.
    My sole object in praying for a jury, was to have the verdict of twelve citizens upon the common and usual signification of the words of the contract according to general and popular use. Had the case been decided by the judge alone, this court might well say, we are as competent as he to decide on the common and usual signification of the words of the contract, according to general and popular use; and, if your honors differed from him, you would reverse his judgment. But, when a jury have passed upon it, this court will say the jury is right in their interpretation, or, if we differ from them, it is a matter peculiarly within their province. We will not say that we know the common and usual signification of the words better than twelve of our fellow citizens. We will not annul their verdict on this point. ■ L. C. 1952. S. P., 3 Ann. 224, Ib. 2 Ann. 250. 1 Phil, on Ins.'44, 45, 46, 47, 48, 50.

      Hunton and Bradford, for defendant.
    Article of conditions annexed to the policy declares, that “ if there is any fraud or false swearing,” on the part of the insured, he shall forfeit all claim under his policy. Is it not fraudulent to demand payment for a loss for $5000, when his Joss was not a fourth of that sum ? Is it not fraudulent to demand payment for a harp at $75, when it is proved by plaintiff’s own witness, (the witness who first presented the account of the loss,) that the harp was only of the value of $50 ? Is it not fraudulent to claim for the loss of “ gold pencils, Algerian watches,” &c., when it is shown by the testimony of his own witnesses, that these articles were not on the inventory of his stock taken just before the fire, and from which it is said the account of the loss was made out 1

    In the case of Levi v. Baillie et al., 7 Bing. 349, the plaintiff claimed ¿61085. The jury gave a verdict for £500. The court granted anew trial, on the ground that the loss was fraudulently overrated. In the case of Wood v. Masterman, Sfc., cited in Ellis, p. 14, Lord Tenterden instructed the jury, that if the plaintiff has overrated his loss, with a fraudulent intent, they should find not the amount of the loss, but for the defendant. So, too, in Reguier v. La. State Marine Ins. Co., 12 L. R. 344, it was held, that as plaintiffhad overrated his loss knowingly, he should recover nothing.
   By the court:

Slidell, J.

This action is upon a policy by which the defendants insured Joseph Rafel, “ against loss and damage by fire, to the amountof five thousand dollars, on jewelry and clothing, being stock in trade, contained in the store occupied by him on St. Charles street.” There was a verdict in favor of the plaintiff for $4197 50. The defendants applied for a new trial, which the district judge refused. In doing so, he remarked, that he could not understand upon what principles of law or evidence the jury found the verdict in the case ; but preferred to send the matter before this court for final settlement, rather than to grant a new trial before a jury, which would consume time, and might be attended with equally unsatisfactory results.

The first question which presents itself for our consideration is, whether this policy covers a large number of articles which the plaintiff, who was a pawnbroker, held in pawn.

The conditions attached to a policy form part of the contract. This has been long settled. See Duncan v. Sun Insurance Company, 6 Wendell, 488. Ellis on Fire Insurance, p. 12. Moreover, the present policy itself declares, that it is made and accepted in reference to the conditions- thereto annexed; which are to be used and resorted to, in order to explain the rights and obligations of the parties thereto, in all cases not therein otherwise specially provided for.

The 8th condition of the policy is in these words: “ Goods.held in trust or on commission are to be declared and insured as such; otherwise, this policy will not cover such property. Goods on storage must be separately and specially insured.”

The goods in question were not the property of the plaintiff. He had, at best, a privilege upon them. They were his security for monies advanced to the pawners. His holding was in the nature of a trust for the owners, to whom he was to restore the goods upon their paying him the amount loaned. He must be regarded as coming within the class of holders contemplated in the condition of the policy. In the common law States and in England, from which this form of policy was derived, a pawnee is considered as clothed with the character of a trustee. See Kent, vol. 2, p. 583.

The condition, upon which alone property held by the plaintiff in trust could be covered by the policy, has not been fulfilled, and the policy never attached to the articles so held. It is not, perhaps, necessary to seek for the motive of this condition; but a reasonable motive for it may be easily imagined. As was said in the case of De Forest v. The Fulton Ins. Co., 1 Hall, 84, the declaration and insurance by the trustee or factor of the goods he holds, as goods held in trust or on commission, must have been required, on the ground that the legal title of the trustee and the special property of the factor, though conferring upon each an insurable interest to the value of the goods, yet did not authorize a calculation upon that active zeal and watchful vigilance in the safe-guard of the goods, which an absolute ownership would insure. See, also, Columbian Insurance Company v. Lawrence, 2 Peters, 49.

The case of Brichba v. N. Y. Lafayette Insurance Company, 2 Hall, 375, is not distinguishable in principle from the present. There the plaintiff, effected a policy of insurance against fire, with the defendants, “ on goods and furniture contained in his counting room.” Among other items of loss, the plaintiff claimed a sum of $280, for damage by the fire to certain piano fortes, watches, &c., which had been deposited with him for sale, and on which -he had made advances. The court observed : The third condition annexed to the policy declares, that goods held in trust or on commission shall not be covered, unless they are insured as such. The articles in question were not the property of the plaintiff; they were held by him “ in trust or on commission.” He had a lien upon them for advances, which could have been defeated by a repayment of the money advanced. His interest was not absolute, but conditional; and it could not be covered by a mere insurance upon his own property. If the goods in question were to be covered by the policy, they should have been specified in it as goods held in trust or on commission; and it would be violating the plain terms of the third condition annexed to the policy, if this claim were to be allowed.

Another question raised by the appellants is, what kinds of goods are covered by the terms of the policy, which is “ on jewelry and clothing, being stock in trade, contained in the store occupied by him on St. Charles street?”

If the words had been simply “stock in trade,” it would have been sufficient to cover all kinds of goods belonging to the plaintiff, contained in the store and pertaining to its business, except, perhaps, such as, under the conditions of the pelicy, might require a special designation. But those words, as they are here used, are limited by the antecedent words, and cannot be considered as comprehending any other effects besides jewelry and clothing.

There was no attempt to show by evidence, that any peculiar meaning is attached to such a description by the usage of trade; and we are therefore left to construe the words according to their plain, ordinary and popular sense.

Testing the rights of the parties by this standard, we are quite unable to say that the terms “jewelry and clothing,” include such articles as musical instruments, surgical instruments, guns, pistols, books, and many others that appear in the statement of loss.

Excluding the articles held in pawn, and those which cannot be classed either as jewelry or clothing, the loss sustained by the plaintiff is below the claim made by him under oath. The excessiveness of the claim over the real loss within the policy, was a fraud, it is said, which, under one of the conditions annexed to the policy, deprived the plaintiff of all recourse. This condition requires the assured who has sustained a loss, to deliver in a particular account of such loss or damage, under oath; and provides, that if there appear any fraud or false swearing, the insured shall forfeit all claim under the policy. To subject the plaintiff to this penalty, it should appear that the exaggeration of his claim was wilful and fraudulent. The plaintiff may well have thought he was covered for the goods held in pawn; and his mistake with regard to his legal rights, is not to be visited upon him as a fraud or perjury.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial; the costs of this appeal to be paid by the plaintiff.


author: Preston, J. Rost, J.

text:
    George Longworth, praying for a writ of Habeas Corpus.
    A judge or court, authorized to issue a writ of habeas corpus, cannot refuse bail, by sufB cient securities, except far capital offences, where the proof is evident or the presumption great. It is the constitutional right of the prisoner to demand it, and it is not in the discretion of the judge to deny it, nor does the conviction of the prisoner deprive him of the right.
    from the First District Court of New Orleans, Larue, J.

      John R. Grymes, for prisoner.
   ' By the court: (Rost, J., dissenting.)

Preston, J.

The prisoner was prosecuted for larceny, convicted and sentenced to one year’s imprisonment at hard labor in the penitentiary, and to pay the costs of prosecution. He took an appeal to the Supreme Court.

Immediately afterwards, he applied to the executive for a reprieve and pardon. A reprieve was granted by the governor for good and sufficient reasons, but upon the condition, that he should remain in the parish prison until the meeting of the next Legislature, in order that the sense of the Senate may be made known, as to their concurrence with the executive in a pardon.

The governor was obliged to prescribe this condition of his clemency, under a law passed at the late session of the general assembly, but as the Legislature may not meet for two years; the condition, except as to the ignominy, is more onerous than the punishment.

The prisoner therefore applied to the district court to be discharged from imprisonment, on giving bail to surrender his person at any time to be dealt with according to law. The district court refused to bail him, because he was a convict under sentence'and could not be bailed, notwithstanding his appeal.

In the case of the State v. Jones, convicted of burglary, this court held that the prisoner could be bailed pending an appeal although convicted. The 108th art. of the Constitution was cited as the basis of the opinion. It prescribes, that “all persons shall be bailable by sufficient sureties unless for capital offences, where the proof is evident or presumption great.”

But at that time the 10th section of an act approved the 30th of May, 1846, was in force, which permitted the accused, if the offence was bailable, to be bailed after conviction when an appeal was taken.

On the contrary, the general assembly have, at its recent session, expressly enacted: “That in all cases where persons convicted of crimes shall be sentenced to death or to imprisonment at hard labor, it shall be the duty of the sheriff of the court where such sentence has been pronounced, immediately to take such person into custody, and to keep such person confined in the parish jail, notwithstanding any appeal or reprieve, until the final action of the Supreme Court on the appeal, or the action of the Senate on the reprieve, shall have determined what disposition shall be made of the person so sentenced.”

Notwithstanding this law, the prisoner has applied to this court for a writ of habeas corpus, and asks to be dischargedofrom imprisonment, on giving sufficient bail, conditioned as offered to the district court.

His counsel insists that the act passed at the late session of the Legislature conflicts with the 108th art. of the Constitution, and that he is not bound by it. His application, therefore, imposes upon us the very serious duty of examining the constitutionality of an act of the Legislature. This is a painful duty under any circumstances, and we feel the more reluctance in performing it on this occasion, as we are fully impressed with the truth and weight of the observations of the attorney general, that the construction we are obliged to give to the article in the Constitution, may conflict with the best interest of society, by enabling a wealthy criminal to escape justice by means of his property.

The convention in providing, by the 108th art. of the Constitution, for the liberty of the citizen, though accused of crime, must have referred to the principles of bail, in criminal cases, as they existed at the time of the adoption of the Constitution. It becomes necessary, therefore, by a thorough search to ascertain what those principles were.

Blackstone in his commentaries says: “It is agreed that the Court of King’s Bench, or any judge thereof, in time of vacation, may bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstances of the case. And herein, he adds, the wisdom of the law is veiy manifest, because cases may arise where it would be hard and unjust to confine a man in prison though accused even of the greatest offence.” In Coke’s entries from 354 to 356 it will be seen, that the power to bail, even in cases of murder, was exercised in the reign of Queen Elizabeth. So Lord Mohan, found guilty of murder by the coroner’s inquest, in the reign of William and Mary, was bailed. 1 Salkeld’s R. 103.

Chief Justice Marshall declared, upon the trial of Colonel Burr, that the court had power to bail a person indicted for treason according to its sound discretion.

Thus, prisoners accused of the most henious crimes have been bailed, the courts or judges exercising, in each case, the utmost discretion of which they were capable. And if the power to bail may be exercised as to the greatest crimes, of course it may be exercised as to crimes of a lower grade ox guilt.

But the rule laid down by Bacon, title bail, letter D, and adoptedby the district judge, that if a person be attainted of felony, or convicted thereof by verdict, general or special, or notoriously guilty of treason or manslaughter, &c., by his own confession or otherwise, he is not to be admitted to bail without some special motive to grant it, has always regulated the discretion of courts and judges at common law. Still there was the exercise of discretion without certain rules to guide it, which has ever been regarded with jealousy by a people tenacious of liberty.

The people of Louisiana have, therefore, by their Constitution, restrained the discretion of the judges and enlarged the liberty of the citizen, by declaring, “ that all prisoners shall be bailable by sufficient securities, unless for capital offences, where the proof is evident or presumption great, and the privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.” Art. 108.

A judge or court authorized to issue a writ of habeas corpus, cannot therefore refuse bail by sufficient securities, except for capital offences, where the proof is evident or the presumption great. It is the constitutional right of the prisoner to demand it, and it is not in the discretion of the judge to deny it.

Does the conviction of the prisoner deprive him of this constitutional right ? A conviction did not deprive the judges of the power to bail, according to their discretion, at common law. In England, a person improperly convicted was relieved, not by a new trial, but by the king’s pardon, and no doubt might bo bailed until the pardon could be obtained.

In many cases where persons were entitled to relief, they have been bailed by the judges after conviction. In Bacon’s Abridgment, title, bail in criminal cases, it is laid down, that" a man convicted of felony upon evidence, by which it plainly appears to the court that he is not guilty ofit, may be bailed.”

In Strange’s Reports, p. 9, in the case of The King v. Bishop, he was convicted of a libel and moved to be bailed, on the ground that he was in a bad state of health. The court said, as a punishment commensurate with his offence might endanger his life, we will bail him for the present..

In the same vol. p. 531, in the case of The King v. Reader, the defendant was convicted of keeping an ale house without a license, and was thereupon sentenced and committed for one month, as the act directed. After he .had been in jail a fortnight, he brought a certiorari, and, upon the return of it, was admitted to bail, the court being of opinion that if the conviction was confirmed, they would commit him in execution for the remainder of the time.

In the case of The King v. The Mayor of Saltash, the defendant, who had been indicted and convicted of a riot, and was confined under sentence, was bailed, because he had brought a writ of error. 2 Shower’s R. p. 96.

In the case of Lisle, he was indicted for the murder of Richard Armstrong, and was thereupon tried and convicted of manslaughter. The brother of Armstrong filed a bill of appeal of murder. Lisle prayed, but was not immediately admitted to the benefit of clergy. He thereupon moved that he might be bailed, which was opposed by Armstrong because he was found guilty of manslaughter, but the court bailed him to appear from day to day. The appeal of murdejGjjy.as subsequently dismissed, and he was surrendered by his bail and branded for the manslaughter of which he was convicted. Salkeld’s R. p. 60. See also the case of The King v. Elwell, 2 Strange 794.

In many of the States of the Union, an appeal or writ of error is allowed by law to obtain relief from an improper conviction. Where that means of relief -g accorded, until the appeal or writ of error can be tried, the party prosecuting it has often been bailed notwithstanding his conviction.

In the case of The People of New York v. Croswell, convicted of a libel upon the President of the United States, the prisoner was bailed by the Supreme Court of New York until his case could be heard by that court. 1 Cain’s R. p. 148.

In the same vol. p. 72, McNeil, having been convicted of a conspiracy, was bailed by the Supreme Court of New York, until the record should be made up, to pronounce sentence.

At page 431 ofl Wheeler’s criminal cases, Recorder Riker mentions the case of Mr. Barnwell, who was indicted of manslaughter, pleaded guilty, and was continued under bail; and in the case then under his consideration, he held, that a person convicted by a magistrate of vagrancy might, upon affidavit disclosing the merits of his complaints, obtain a certiorari, and upon giving bail to abide the judgment of the Supreme Court, be entitled to his discharge.

In some States express provision is made by law, enabling convicts to give bail until their appeal or writ of error is tried. Thus, in Mississippi, “ it is provided that in all cases not capital removed into the Supreme Court, the defendant shall enter into recognizance, to be approved by the judge of the circuit court, in which the prosecution is pending, in such sum as shall be directed by said court to appear before the Supreme Court at their next succeeding term, and abide the sentence or judgment which may be there pronounced against him.” Revised Statutes of 1824, p. 138.

So in Massachusetts, the appellant is authorized to recognise to the Commonwealth, in such reasonable sums, and with sureties, as the Court of Common Pleas shall order, with condition to appear at the court appealed to, and there to prosecute his appeal and to abide the sentence of the court, &c. 2 Revised Statutes, p. 763.

' Indeed, it is probable that a little research would show that, in most of the States where appeals or writs of error are allowed in criminal cases, similar relief is extended to prisoners either by statute or by the practice of their courts, by suspending the execution of the sentence and all the effects of conviction during the pendency of the appeal or writ of error; otherwise the hope of relief would be attended with certain evil, rendering its advantages doubtful.

There is nothing in the case of the State of South Carolina v, Bryan Connor, adverse to the prisoner’s application. Being convicted of forgery, the Constitutional Court of South Carolina approved the refusal of the circuit court to admit a defendant to bail in a case so highly criminal; but admitted the necessity of an exercise of discretionary power, even after conviction, in cases of lower offences, to bail for the appearance of offenders at the Constitutional Court of Appeals, to abide the final sentence of the court. 2 Bay’s Rep. 37. The common law doctrine, giving the judges a discretion, prevailed, because the principle above quoted from our Constitution was not contained in the Constitution or laws of South Carolina. That principle takes away all discretion, and leaves but a single distinction. Capital cases are not bailable after conviction, aeeause the presumption of guilt is great; all other cases are bailable, because the Constitution makes them so, without distinguishing between heinous or lower offences, as to the right of giving bail.

But in the case of the State v. Ward, 2 Hawke’s North Carolina Rep. p. 443, it was held, that after a conviction of an offence, not capital, and appeal to the Supreme Court, the prisoner is not entitled to he bailed as a matter of right; it is a question addressed to the sound discretion of the judge before whom the appeal is taken. And it is to be observed, that the Constitution of North Carolina contains the identical clause quoted from our Constitution. This, then, is a decision directly in point, against the application in the present case.

We cannot so interpret the clause in our Constitution, the words of which are plain, unambiguous and imperative, “that all prisoners shall be bailable, by sufficient securities, unless for capital offences.” They are entitled to be bailed as a matter of right, and the judge has no discretion except in fixing the amount of the security.

It has been argued, that the conviction leaves no doubt of the guilt of the accused. That is not absolutely certain, since an appeal is allowed by the Constitution and laws of the State. But suppose the guilt certain, it is not more so than if an individual, accused of perjury or forgery, should voluntarily declare, in writing, under his signature, that he had committed the peijury or forgery of which he was accused ; and yet it will not be denied that our Constistitution allows him, in such case, to be bailed until sentenced to punishment.

So in this case, the prisoner is not undergoing the sentence of the law for his crime, but is a prisoner awaiting the final determination of his case by the Supreme Court, to which the 63d article of the Constitution allows him an appeal.

The probability of an offender absconding, at least when the opinion of the Supreme Court is known to be adverse to him, has been much pressed in the argument. The argument has great weight against the provision in our Constitution, but while the provision exists the danger must be counteracted, as much as possible, by the amount of bail to be required. Lisle, as we have seen, who, convicted of manslaughter, was at large onbail, was surrendered in execution, and branded for his crime. ‘

A judge cannot violate or abridge the right, under the Constitution, of prisoners to be bailed, in all except capital cases, until the final judgment of the law, condemning to merited punishment, shall shut the doors of this constitutional privilege upon them.

We adhere to the injunction of the Constitution the more readily, as probably this is the last case in which we shall be called upon to exercise the power of bailing after conviction,- as the considerations urged by the attorney general will, , no doubt, induce the coming convention to restrain the power to bail after conviction.

There are other considerations operating upon the court. The prisoner appears to be in bad health, and might perhaps be deprived, by death, of the executive clemency, if detained in the Parish Prison two years before he could enjoy it.

Further, we do not know the motives which induced the executive to reprieve him, but possibly they may be of such a character as to induce the governor to oxtend to him the reprieve, even if the judgment of the district court against him should be affirmed by this court, and although he should be under bail.

We are therefore of opinion, that the prisoner should be bailed; and as the district court considers the law we have examined, forbidding it, constitutional and conclusive upon him, we will bail him in the sum of five thousand dollars.

It is therefore ordered, adjudged and decreed, that the sheriff take good and sufficient surety from the prisoner, in the sum of five thousand dollars, conditioned, that as lie had been convicted of larceny, and sentenced to hard labor for one year in the penitentiary by the First District Court of New Orleans, but }la(j appealed to the Supreme Court, which appeal had not been tried; that when the decree of the Supreme Court in this case shall be made and duly certified to the said district court, the said Longworth shall appear from day to day in said district court, and there be ready to abide the further orders of the district court, and not depart without the leave of the court. It is further ordered, adjudged and decreed, that the bond be submitted to this courtbefore the discharge of the prisoner, and afterwards be deposited with the clerk of tho First District Court of New Orleans, for safe keeping; and thereupon, let the prisoner be discharged from custody.

Eustis, C. J. and Slidell, J. concurred.

Rost, J.

dissenting. I adhere to the opinion of the Supreme Court of North Carolina, in the case of the State v. Ward, decided under a constitutional provision similar to ours, that after a conviction of an offence not capital, the prisoner is not entitled to be bailed as a matter of right, and that it is a matter adverse to the sound discretion of the court, before whom the appeal is taken.

Conceding that the Legislature could not take away that discretion, it has been exercised in the present case, and the application has been refused. I think we should not interfere.


author: Ros-r, J.

text:
    Sarah Hubbell et al. v. Mary Inkstein et al.
    Slight proof of the celebration of marriage is sufficient, whore the spouses uniformly,publicly, and for a longtime bear to each other the relation of husband and wife.
    Whore a man married two wives, and the second wife was in good faith, each wife is entitled, at the death of the husband, to one-half of the community.
    from the Second District Court of New Orleans, Lea, J.

      Magne and Koontz, for plaintiffs.

      Durant and Horner, and P. O. Cumllier, for defendants.
   By the court:

Ros-r, J.

This is an action by the widow and children of Julius Hubbell, who died in this city in 1837, claiming fromthe defendants the entire succession of their husband and father.

The defence is a general denial and an averment, that the defendant, Mary Inkstein, married Julius Hubbell in 1826, believing him a single man, and that the other defendants, with the exception of Joshua Peebles, are the issue of that marriage, born during the continuance of her good faith, and that even if the allegations of the plaintiffs should be true, they also are entitled to all the advantages which would result from a lawful marriage.

The succession of Julius Hubbell was composed exclusively of community property, and consisted of money, with which Mary Inkstein purchased a house and lot for herself and children. The two eldest of those children having become of age, sued her for their share of their father’s succession, and obtained against her a judgment for $460 each, which, on appeal, was affirmed by this court. 5 Ann. 524. Under this judgment, the house and lot were seized and sold to Joshua Peebles, for $1850, on twelve months’ credit. On the suggestion of Mary Inkstein, that this house was the only property she had to satisfy the claims of her five children, and that as the price bid was less than they were entitled to ¡receive, the proceeds of the sale should be distributed among them pro rata. This sum has been arrested in the hands of the sheriff, subject to the further order of the court. All those who claim to be paid out of it, are parties to this suit.

The district judge was of opinion that the allegations of the defendants were made out, and that, for the purposes of this suit, they were to be considered as a lawful wife and legitimate children.

The plaintiffs and appellants insist that there is error in this part of the judgment, and that the marriage is not proved by legal evidence. The argument of their counsel would apply, in all its force, to a case in which a woman who had not the status of a lawful wife, would claim to be recognized as such after the death of the alleged husband. They have entirely overlooked the possession d'etat which Mary lnkstein and her children have uniformly enjoyed, as shown by the unimpeached testimony of witnesses, and by the still stronger evidence that, after the death of Hubbell, Mary lnkstein was recognized by the court as his widow, was confirmed as such in the tutorship of his children, and placed in possession of his succession, without any one contesting oijdoubting her right. If to this be added the fact of her cohabitation with Hubbell, to the time of his death, slight proof of the celebration of the marriage is sufficient to establish it. We are sure that there are hundreds of marriages, in Louisiana, in relation to which more satisfactory evidence than is found in this record, could not be obtained.

It is said that in the certificate of marriage adduced,'her name is not properly spelt. But as she can neither read nor write, and it is not shown she had any relations in this country, no one can tell how her name should be spelt; and the French priest who married her, at Mobile, is as apt to be right in the spelling as the counsel who attended to the proceedings in the succession of her husband.

It is also urged that there is no proof that the person, married in Mobile, was the defendant in this suit. The names of the husband and wife, and the date of the act are, under the facts of the case, prima facie evidence of the identity of the parties, and sufficient to throw upon the plaintiffs the burden of proving that the marriage in Mobile was between other persons. It may be true, that Hubbell had his marriage celebrated in Mobile for purposes of concealment, but this cannot affect the good faith of his wife; nor do we think her declaration, that it had been celebrated in New Orleans, sufficient to produce that effect. Succession of Prevost, 4 Ann. 348.

Being of opinion that there is nothing in the record to show that Mary lnkstein ceased to be in good faith, before the death of Julius Hubbell or until long afterwards, we consider her entitled to the rights of a lawful wife, and it becomes necessary to ascertain what those rights would be.

Julius Hubbell came here from New York, in 1820, and remained till his death, in 1837. He was an inhabitant of the State, and the property acquired by him during his residence was subject to our laws, and must be held, under the circumstances of this case, to have been community property between his first wife and himself. The marital cohabitation did not fail through her fault, and she is not to lose her rights on account of the fault and misconduct of her husband.

In the case of Patton v. The Cities of Philadelphia and New Orleans, in many respects similar to the present, we held, that under the former laws of the country, where a man married two wives, and the second wife was in good faith at the death of the husband, each took one-half of the community propertyHubbell died after the repeal of those laws. But the principle upon which they rested, appears to us clearly deducible from those now in force; and the reasons of the law, as stated in Patton's case, have equal force under both systems. The wife is now, as under the Spanish laws, entitled, at the dissolution of the marriage, to one-half of whatever may remain after paying the community debts. This claim may be assimilated to a debt from the succession of the husband to the wife, and as such it excludes the right of inheritance of the children. 1 Ann. 98.

We are therefore of opinion, that Sarah Hubbell and Mary Inkstein were each entitled to one-half of the acquets and gains at his death. But as the defendants possessed, in good faith, they made the fruits of the property theirs, and the plaintiff, Sarah Hubbell, has no claim for interest, except from the judicial demand.

We must now examine the. claim of the plaintiffs against Joslvua Peebles. They aver, that the house and lot having been purchased with the funds of the community, they have the right to ratify the purchase, and to claim them as community property. They further allege, that if the property does not belong to the community, they have a legal mortgage upon it, which they pray may be enforced. Without determining what the rights of Sarah Hubbell might be, if the property was still in the possession of Mary Inkstein, it is sufficient to say, that she purchased in her own name, and that the title remained in her name, on the public records, for many years, and until it was sold to the defendant. He cannot, therefore, be affected by secret equities existing between her and the plaintiffs. The minors having no claim upon the property, it is clear that there was no mortgage, in favor of Sarah Hubbell, to secure community rights. The sale to Peebles, made under a valid and subsisting judgment, transferred the property to him, and the only question in the case which concerns him, is to to whom he is to pay the price.

The petition prays for a judgment againstiliaiy Inkstein and her children, for the entire succession, and contains, also, a prayer for general relief. We think with the district judge, that the plaintiff is not entitled to a personal judgment against the children of the second marriage. But they have rights against them, which may, under the pleadings, be determined in the present suit.

James and Horothe Hubbell, the two heirs of age, obtained against their mother a judgment for the sum of $460 each, this being the amount of their share in the half of the community property, supposed to belong to the succession of their father. In this suit Sarah Hubbell evicts them of their title to the community, and is adjudged to be the sole owner of the share of her husband. The judgment rendered in favor of the supposed owners must, therefore, inure to her benefit, and she is entitled to receive the amount made under the execution, in satisfaction of that judgment, and in part payment of her claim.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff, Sarah Hubbell, recover from the defendant, ■ Mary Inkstein, $2257 13, this being the undivided half of the succession of Julius Hubbell, with legal interest from the I4th February, 1851, till paid. It is further ordered, that the judgment obtained by James and horothe Hubbell, against their mother, Mary Inkstein, be, and is hereby adjudged to be, the 'property of Sarah Hubbell. It is further ordered, that Joshua Peebles be ordered to pay over to the said Sarah Uubbell, the price of the property purchased by him, under execution, in the suit of James Hubbell et al. v. Mary Hubbell, and that upon payment thus made, the judgment in that suit be entered satisfied, and the whole amount paid entered as a credit upon the present judgment. It is further ordered, that Mary Inlcstein and her children pay costs in both courts.


author: Preston, J. Preston, J.

text:
    The State of Louisiana v. William Foster.
    Where an offence, other than willful murder, arson, robbery, forgery and counterfeiting, has not been committed within the year next preceding the indictment the indictment should show, that the accused cannot avail himself of the limitation, by charging that he absconded or fled from justice, or that the crime was not discovered and denounced in the manner pointed out by the act of 25th March, 1844, until within a year of the finding by the grand jnry.
    The indictment charged that the mortal stroke was given in the parish of St. Bernard, buj that the deceased languished and died on Lake Borgne. It was held, that it was proper to charge in the indictment, the truth that the death occurred on Lake Borgne, and it was immaterial whether it occurred within the jurisdiction of Louisiana, Mississippi, or on the high seas, within the jurisdiction of the United States.
    APPEAL from the District Court of the parish of St. Bernard, Rousseau, J.

      Charles Biemerm, District Attorney, and Isaac Johnson, Attorney General, for the State.

      J. M. Ducros, for defendant.
   By the court:

Preston, J.

The prisoner was accused of murder, convicted of manslaughter, sentenced to the penitentiary, and has appealed.

He complains that, being in prison, he was not allowed to procure for his defence counsel of his choice. He was arraigned on the 5th of January, 1852, and was not tided until the 12th of that month. This interval afforded ample time for him to have procured counsel of his choice, in default of which, the court assigned him counsel, who it appears by the record and briefs, was fully competent to defend him.

There are other grounds presented in support of an application for a new trial, which it has heretofore been decided are not tenable in this court.

In arrest of judgment, it is urged that the place where the death took place, was not set forth in the indictment with sufficient certainty. It is charged in the indictment, that the mortal stroke was given in the parish of St. Bernard, within the jurisdiction of the Second District Court, but that the deceased languished and died on Lake Borgne.

The common law adoption by our Act of 1805, was modified by the statute of II. George, which provides that, “where the stroke has been givenin England, and the death occurs out of England, or the reverse, the killing may be inquired of in that part of England where either the death or stroke shall happen respectively.” 1 East, p c. 365, and so the late Court of Errors and Appeals, in criminal cases, held in the case of The State v. McCay et al. “ That where the mortal stroke was given in this State, but the death occurred in the State of Mississippi, the crime might he prosecuted in the parish where the mortal stroke was given.” 8 R. R. 545. It was proper, therefore, to charge in the indictment the truth, that the death occurred on Lake Borgne, and it was immaterial whether it occurred within the jurisdiction of Louisiana, Mississippi, or on the high seas, within the jurisdiction of the United States.

To maintain tho plea of autre fois cornicb, the crime must not only be the same for which the defendant was befere convicted, but the conviction must have been lawful on n sufficient indictment.

The accused was indicted for murder, and convicted of manslaughter. The indictment was insufficient to sustain tho charge of manslaughter, and judgment was arrested, but without prejudice to a legal prosecution for the crime of manslaughter.

Another ground urged for arresting the judgment, presents more difficulty. The indictment was found,the 5th of January, 1852. It charges, that the crime was perpetrated in November, 1850, more than a year before the indictment was found. The petit jury found the prisoner guilty of manslaughter only, and thereby substantially acquitted him of murder. Now, the Act of 1805 prescribes that, “ no person shall be prosecuted, tried or punished for any offence, willful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same, be found or exhibited within one year next after the offence shall be done or committed, provided, that nothing herein contained shall extendió any person absconding or fleeing from justice.”

Another exception was made to the limitation of prosecutions, by the 3d section of an Act approved the 25th of March, 1844, that it should commence only from the time the crime or' misdemeanor was discovered and made known to a public officer having power to direct its investigation or prosecution, page 80.

It is not charged in the indictment, that the prisoner absconded or fled from justice, nor is it alleged that the crime was not discovered and denounced until within a year of the finding by the grand jury; until one or the other of these facts are alleged and proved to the satisfaction of a petit jury, the prisoner, in the words of the statute, cannot be “ punished” for manslaughter. Every thing essential to his punishment must be found by a jury of his country, and must appear of record; otherwise, the law does not authorize a court to pass sentence upon him.

It is true, it was alleged in opposition to the motion in arrest of judgment, that the prisoner had fled from justice, and the governor’s proclamation offering a reward for his apprehension, was produced to prove it. We do not think the court had power to try that fact, but that it should have been distinctly charged in the indictment, and proved on the trial by the oaths of witnesses and other legal testimony, to the satisfaction of the jury, to support their verdict for manslaughter. We are therefore obliged to arrest the judgment, and we do it more readily, as if in point of fact the prisoner was a fugitive from justice, this prosecution will not bar another for manslaughter, containing the charge that he fled from justice.

The verdict against the prisoner is set aside, and the judgment of the district court arrested, without prejudice to a legal prosecution for the crime of manslaughter.

Same Case — On an application for a Re-hearing.

By the court:

Preston, J.

The defendant asks for a re-hearing ou the ground, that having been convicted of manslaughter, the verdict having been set aside and judgment arrested by this court, he cannot be put in jeopardy again for the same offence. We would have inferred the contrary from the decision of the late Court of Errors and Appeals, in the case of The State v. Hornsby, 8 R. R. 583. Be that as it may, it seems to be a well settled principle of criminal law, that the plea of autre fois convict, depends, like the plea of autrefois acquit, on the principle, that no man shall be put more than once in jeopardy for the same offence; and, in order to maintain the plea, the crime must not only be the same for which the defendant was before convicted, but the conviction must have been lawful, on a sufficient indictment. 1 Chitty 376. 9 East. 441. In the present base, the conviction was on an indictment clearly insufficient to sustain the verdict for manslaughter, more than a year having elapsed between the commission of the crime and the prosecution.

The re-hearing is refused.


author: Preston, J. Pbeston, J.

text:
    A. Thompson v. E. Chapman.
    Where an appeal has been granted, on motion in open court, at the same term at which the judgment was rendered, no citation of appeal is necessary.
    Where the clerk’s certificate is defective, and no fault canbe imputed to the appellant, the Supreme Court will, on affidavit, grant time to correct the certificate.
    That portion of the statute of 1840, abolishing imprisonment for debt, which subjects the defendant to imprisonment for giving an unjustpreference, only until he pays the debt, par. takes of a civil character. It merely excepts that case from the law to abolish imprisonment for debt, and, as to it, still allows imprisonment as a civil remedy.
    The petition charged that the plaintiff sold and delivered property to the defendant for cash, and that defendant removed, disposed ofi or concealed, or covered the same in such a manner, that plaintiff could not render said property liable for the price. It prayed, also, for his arrest and punishment. The jury gave judgment for the sum claimed, but dismissed the charge of fraud. By the court: This is a civil remedy, of such a highly penal character that we should never feel authorized to convictthe debtor of the fraud, and punish him with imprisonment, which might extend to three years, without the verdict of a jury. And, although we would remand the cause for a new trial, if any errors of law had occurred in the progress of the trial, we are unable to do so for differing with the jury as to the effect of the evidence alone. ■,
    from the First District Court of New Orleans, Larue, J.

      Frank Haynes and Randal Hunt, for plaintiff.

      J. R. Grymes and J. M. Wolfe, for defendant.
   On motion to dismiss the appeal. By the court :

Preston, J.

A motion has been made to dismiss this appeal, on the ground that no citation of appeal issued in the case, to the appellee, notifying him of the appeal granted. It was not necessary. The appeal was granted on motion, in open court, at the same term atwhich the judgment was rendered. Acts of 22d March, 1843, p. 40.

The appellee moves for the dismissal of the appeal, on the further ground, that the certificate of the clerk of the district court does not show that the record contains all the evidence, and is a complete record. The counsel of the appellant makes affidavit, that the record contains all the evidence offered by the parties on the trial of the cause, and states that the defect in the clerk’s certificate was discovered only when the cause was called for trial and the motion to dismiss the appeal was made.

The act of the 20th of March, 1839, provides, that no appeal shall be dismissed on account of any defect or error in the certificate of the clerk, whenever it shall appear that such defect or error is not imputed to the appellant. B. and C., p. 181. The act embraces the pvesent case.

The counsel of the appellant, on his affidavit and statement, applies for time to have the clerk’s certificate corrected. He is entitled to it, by the act just cited, as well as by the 898th article of the Code of Practice. Let him have until Monday next, to have the certificate corrected.

It is therefore ordered, adjudged and decreed, that the plaintiff and appellant have until Monday next, to have the clerk’s certificate of the lower court corrected.

Same Case — On the Merits.

By the court:

Pbeston, J.

The plaintiff sold the defendant a quantity of oats, sued and obtained judgment for the price, notwithstanding various defences by the defendant.

But the plaintiff further alledged, “that after said Chapman had obtained the delivery of said sacks of oats, said Chapman removed and disposed of to individuals, and concealed or covered the same in such a manner that your petitioner cannot make or render said sacks of oats liable for the same, thereby rendering said Chapman liable to the pains and penalties of the act of 1840, to abolish imprisonment for debt.”

“ Your petitioner prays, in consideration of his affidavit and premises, that said Chapman be arrested and punished according to law.”

The 10th section prescribes: “That if a debtor, who has not voluntarily surrendered his property to his creditors, or has not been proceeded against for a surrender, under the provisions of this act, shall, in violation of any existing law, have, within the year, given an unjust advantage or preference to any one or more of his creditors, by payment or otherwise, or shall have anticipated the payment or provided for the payment of a debt not due, the effect whereof shall be to injure the complaining creditor; or shall purchase property for cash, the delivery whereof shall be made to him, and then shall sell or dispose of the same without paying his vendor, or shall remove the same beyond the reach of such vendor, or shall conceal or cover the same in any manner so that his vendor cannot render the same liable, (or shall fail to pay over money received or collected for or deposited with him for another,) or shall have made a conveyance, or transfer, or mortgages, or pledge of his property, to the prejudice of the complaining creditor; any of such facts shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved.”

The 13th section provides, “That when the causes mentioned in the tenth and eleventh sections of this act shall be tried, if the jury or court, as the case may be, shall be satisfied that the defendant has been guilty of defrauding the complaining creditor, the court shall condemn the defendant to be imprisoned for a period not exceeding three years; and if it shall appear that the defendant has only been guilty of conferring an unjust preference or advantage upon another Iona fide creditor, whose demand was actually due, such defendant may be relieved from the imprisonment, by paying the complaining creditor, or repairing the injury or fraud complained of; and in case the jury or court, as the case may be, shall find the charges against the debtor unfounded, and that the creditor has proceeded without reasonable ground of suspicion, they may impose such damages against the parly complaining as may bo reasonable and just.”

That portion of the statute which subjects the defendant to imprisonment for giving an unjust preference, only until he pays the debt, partakes of a civil character. It merely excepts that case from the law to abolish imprisonment for debt, and, as to it, still allows imprisonment as a civil remedy. And the punishment of the fraud charged in this petition, has been held by this court, and also by our predecessors, to be a civil remedy. 4 Ann. 346. 15 L. R. Yet it is to be considered, that the punishment to be inflicted, if the accused is found guilty, may extend to three years’ imprisonment.

We can only regard this part of the statute as a civil remedy, by supposing it the intention of the Legislature, though not expressed, that the imprisonment should terminate on payment of the whole debt and costs. But, even in this point of view, it is a civil remedy of such a highly penal chareter that we should never feel authorized to convict the debtor of the fraud, and punish him with an imprisonment, which might extend to three years, without the verdict of a jury. And, although we would .remand the cause for a new trial, if any errors of law had occurred in the progress of the trial, we are unable to do so for differing with the jury as to the effect of the evidence alone. Such, a course would trench too much upon the humane' principle, that no man should be tried twice for the same offence, having been acquitted after a fair trial of the facts charged, by a jury of his country. And we the more readily come to this conclusion, as the plaintiff still has all the civil remedies to which other creditors are entitled.

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

Application for a re-hearing refused.