source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Robin v. Flower.
    Whe're in an hypothecary action against a third possessor of property mólfgáged1 to sccúrethe payment of a note, defendant expressly denies that any amicable demand was made of the original debtors thirty days before suit as required by law, the testimony of a witness that he wont to the residence of the original debtors for the purpose of demanding payment, that he found the house closed and no one there, and that he enquired for, but could not find either of them, is not evidence of due diligence, and cannot excuse the want of amicable demand-. Per Curiam: Nothing shows that the debtors were not at their house the next day, ner that they could not have been found in the neighborhood.
    Appeal from tire Court of Probates of West Feliciana, Weems, J.

      Phillips, for the appellant. No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an hypothecary action- against a third- possessor. The petition alleges that payment of the note has been demanded amicably from the original debtors, more than thirty days previous to the institution of the suit. That allegation is expressly denied in the answer.

All the evidence adduced in support of it is the testimony of Stevens, who deposes that he went to the residence of the original debtors, in September, 4840, for the purpose of demanding, payment; that he found the house closed, and no person there; that he made' enquiry for them, but eould not find either of them.

The diligence'used in the search of the original debfofffis insufficient; nothing shows that they were not at their house the next day, or that they could not have been found in the neighborhood at any subsequent time. Nothing is shown which can dispense the plaintiff from making thé amicable demand required by law; and until it is made he cannot maintain his action.

It is therefore ordered that the judgment be reversed, and the plaintiff’s petition dismissed, with costs in both courts.


author: Eijstis,-C.- J*.

text:
    Morris et al. v. Kenton.
    To malee a vendor liable under his- warranty, the purchaser must be evicted by some lawful authority. Pe)' Gúriam: The latter must maintain and vindicate his possession against intrusion, or any force but that of the law itself.
    Appeal from the Parish Court* of-N*ew- Orleans-; Maurian, J.

      Durant, for the plaintiffs. Rreslon, for the- appellant-.
   The judgment- of the court was pronounced by

Eijstis,-C.- J*.

By an instrument under-private signature, dated the 3d of July, 1840; at- New Orleans, the defendant sold the plaintiffs a tract of laud of one arpent front on the Pass of, Biloxi, in Hancock county, Mississippi, for- the sum of $l-O0O4u cash, and their, three notes-of. $500-each,-payable at one,-two, and three years from the date of the sale. This suit is brought for the recevei-y back of the purchase money and notes, and a further sum for an alleged eviction from the premises under a-writ issued from the-Circuit Court of Harrison county, State aforesaid, in a certain judgment rendered in a certain action of ejectment against one Elizabeth Curtis, at the suit of Doe ex dem. Holley, and Dorsite Richards. There was- judgment for the plaintiffs, and the defendant, has appealed.,

The only party defendant-to the action of ejectment appears tb have Keen Elizabeth Curtis. It does not appear that either-the plaintiffs, or the defendant, were parties to it, and there is- no evidence of any eviction- by process of law of the plaintiffs from the land which the defendant sold, and the title to which he- warranted;

To make a vendor liable on his warranty, we und'erstaud, that'the purchaser must be evicted by some lawful authority. Cockerell v. Smith, 1 Ann. Rep. 1. We have nothing before- us which shows' that any judgment of eviction has been pronounced against them, or how their title is affected- by the judgment, against Etizabeth Curtis, whom we should judge to be-a nominal1 party. She was the- vendor to Kenton; the defendant, but had neither the ownership, nor was she in possession of the property on- which the judgment is said to have effect. It was incumbent on the plaintiffs to maintain and vindicate their possession against intrusion, and any force but that of the law itself; for which alone the defendant is-responsiblé. Pothier; Contrat-de Vente, §-83. Mackeldey, Droit Romain, 370.

The judgment appealed from is therefore reversed, and judgment rendered, r for the defendant, with-costsinbotli-courts;


author: King, J.

text:
    Champomier v. Washington.
    To relieve an appellant from the consc'qüenCé's of hid omissioii to file the récord of appeal in time, on the ground that it was uot filed through the mistake or misconduct of the clerk, a strong and clear case must be made out. The testimony of the counsel for the appellant that he was under the impression that the record had been filed, and that he had given to the-clerk the name of a person, as surety'for the costs, with whom the-cleik was satisfied, in the absence of any proof of the-waiver by the-clerk of a written bond for the costs, is not sufficient proof of a compliance by the appellant-with the rule of court as- to security for costs, or of a violation of duty on the part of the clerk in omitting to file the appeal.
    Appeal from the Parish Court of New Orleans, Maurian, *J.

      ‘Benjamin, for the plaintiff. ’Peyton and'1. W. Smith, for the appellant.
   The judgment of the court was pronounced by

King, J.

The order of appedl in this case, made the appedl returnable on the first monday of May, '1845. The'transcript-was not filed until November 30, 1846. 'On-the 22d May, 1846, the plaintiff obtained a certificate that the record had not beeniiled, which’he filed'hrthe courfbelow, andobtained execution. The appellant has endeavored to relieve'himséif from the consequences of the omission to 'file the record, 'by 'the -testimony of his -counsel as to what occun-ed’between'-himself and'the clerk of the Supreme’Court, now deceased. It appears by this testimony that the counsel-was under-the impression that the transcript had been filed ; but, on'the other hand, -the conduct of the élerk is a tacit proof of his unwillingness to file it. The whole difficulty is solved by supposing that .the clerk -waited until security for costs.should be furnished in writing, as provided by the rule of the court, which .was not done. It does not.appear that the clerk expressly waived a written'bond .for costs, though satisfied with the name proposed. :See rule 13th April, 1814. A very strong and clear case should be made out to. authorise us to relieve an appellant from the consequences df his omission to file the record in time. The records of the court must speak for themselves; and, if we .are,permitted.to.look behind them, and to correct them, the mistake of the officer must be-established beyond all possibility of doubt. The clerk in question is dead, and we cannot say, upon the evidence-adduced, that he violated his oath of office in omitting to file this transcript. 'By reason Of the omission to file the record in time, and the taking out of a certificate .to that.effect by the appellee, the appeal.is in law-abandoned. C. R. 594.

Besides these considerations we must add, that our power,to.correct the records of the former Supreme .Court,-is, to say thedeast,.very questionable.

The case is not before us; -and the application made on the 1st May, 1847, for an order directing the Olei-k to make an endorsement of filing nunc pro tunc, and'for other relief .as.set forth.in.said application is dismissed.


author: SiiiDEii,, J.

text:
    Jackson et al. v. Ferguson.
    One who lias paid for services rendered at a higherrate-than-that stipulated in the contract between the parties, cannot recover the amount so overpaid, where the original contract was a hard one, and the amount pai'd not more than a fair compensation for -the services, and cannot he considered as'having'been paid-in error. <C. C. 2280,2281.
    Appeal from the Commercial Court of New Orleans, ‘Watts, J.

      G. B. Duncan, for the plaintiffs. Elwyn, for the defendants.
   The judgment of the court was pronounced by

SiiiDEii,, J.

The judge of the Commercial Court, in our opinion,’took a practical and just view of the rights of these parties. The contract as originally made, w,as .a hard .one. The plaintiffs paid for the services rendered by the defendant not according to the contract, but a.t a higher rate, which was not ,an .Rnfiiir one. The judge below was of opinion that, under the testimony in the cause, these payments coifld not be considered as having been made in .error; and in .this view we concur. Civil Code, arts. 228.0, 2281.

It is said that, even if the payments are to be considered as not made in error, and must stand as payments not made under .the original contract, but according .to the fair and reasonable value of the services, ye.t that the defendant has been .overpaid according to his own bills as rendered,. The testimony is somewhat Joose; b;ut so i'af as we have been able to make the calculations, we find .an excess of twenty dollars .of payments .over bills Rendered — a yery trifling discrepancy, which has perhaps arisen from a charge for costs being embodied, without .discriminating, in the amount of what was paid to defendant upon a judgment jn the city court.

We ar.e .un&bje to say that there is any error in the judgment of the court .bejow.- Judgment affirmed,

       Eustis, C. X, absent.


text:
    Sophie v. Duplessis et al.
    <Tlie decree of a Probate Court ordering a wjll to be executed, does not amount to a judg^ mentbinding on those who are not parties to it; and when the will is offered as the title in virtue of which property is claimed or withheld, its validity may be enquired into. The .admission of a will to probate, and the order for its execution, arc mere preliminary proceedings, necessary for the administration of the estate. Per Curiam: Nor are we prepared to say that the mere order of a judge for the execution of a will, has the effect of a judgment binding on those at whose instance it was made, so far as to conclude them from subsequently contesting the validity of the will, unless, at the time of fcjie probate, its validity was expressly put at issue. '
    The only requisites for the validity of a nuncupative testament under private signature arc prescribed by arts. 1574,1575 of the Civil Code. It is not necessary to the validity of such a testament, that it should be dated, or should mention the place at which it was executed. The date and place .of execution may he shown by evid ence at th e time of its probate.
    It is not necessary that a nuncupative will under prívate signature should exhibit, on its •face, evidence that all the formalities essential to its validity have been complied with. It js unnecessary to mention in such a will the fulfillment of any formalities; it is sufficient to establish, when the will is offered for probate, by evidence dehors the instrument, that the formalities required by law have been obscived. It is not even necessary that the names, or places of residence,of the witnesses to such a will should appear in the instrument.
    Where a party claims her freedom under the provisions of a will, she must show that it has been properly admitted to probate, and its execution legally ordered, on proof of its having been made in the form and manner required bylaw. Where the evidence shows that the will wss admitted to probate on insufficient proof, but there is no proof that it is defective from the omission, at the time of making it, of any formality essential to its validity, there will be only a judgment of nonsuit, as the plaintiff may still be able to supply the defect of proof.
    jin a sui.t for freedom against the heirs of .a succession, plaintiff offered in evidence as an acknowledgement of her right to recover, an act of partition, signed by some of the defendants, but not by all, and which was not signed by the parish judge. The only clauses in the act, intended for* the benefit of the plaintiff purported to be don a. tjons made to her of certain undivided interests in the succession, for the purpose of enafrling her to acquire her and her children’s freedom: Held, that the act being invalid as a donation (C. C. 1523), even if in otherrespects binding on the parties who had signed it, cannot conclude the defendants.
    APPEAL from the District Court of Plaquemines, Rousseau, J. The facts of this case are stated in the opinion infra.

      Lombard, for the plaintiff.
    The order for the execution of a will is a judgment which, though rendered on insufficient evidence, must have full force until reversed. Legendre v. McDonogh, 6 Mart. N. S. ,514. Fulton v. Welsh, 7 Mart. N. S. 257. Clark v. Barham, A Mart. N. S. 411. Such a judgment .cannot be attacked collaterrally. Psyche v. Paradol, ,6 La. 577. Broussard v. Bernard, 7 La. 223. Kilgour v. Ratliff, 2 lb. N. S. 292.

      Ross, for the appellants.
    The act of partition was never perfected. It can 'have no effect as a donation. C. C. 184. Bullard &.Curry’s Dig. pp. 428 ito 430, nos. 4, 8,14. A date is essential to a nuncupative will, because the ■precise time at which the testator makes his will is material. He must be of ..sound mind. Arts. 1461, 1456. Pothier, Testaments, art. 1, ch. 11, p. 531. The place is essentia] in nuncupative testaments, because it is material to know whether the witnesses reside in the place where the will is made. The place is .the parish. Arts. 1578,1574. Where it does not appear that the witnesses reside in the parish, it is presumed they reside out of it. In this case, it does not appear that a greater number of witnesses could not be had. Art. 1576. The will is signed by five witnesses, and their residence does not appear; the •judge reports, that the four first reside in the parish of Plaquemines, and the ‘last in the city of New Orleans. It does not appear, however, that that was their actual residence at the time the will was made. In which parish was the will made? The want of the formalities to which testaments are subject, renders a will null and void. Art. 1588. Benj. & Slidell’s Dig, p. 194, nos. 2, 30, .42, 44. “ The object of these ceremonies is to prevent impositions being practised on men in their last moments.” 5 La. 396.
    The admission of a will to probate and the order for its execution are only preliminary proceedings necessary for the administration of the estate, and do -not amount to a judgment binding on those not parties to them. 10 Rob. 196. ■See also I Rob. 196. 9 Mart. 90. 12 lb. 263, 503. 3 Mart. N. S. 376. 11 La. 385. 12 lb. 214. The case in 18 La. 552, and that in 5 La. 387-395, which declares that “no other tribunal can examine into the correctness of the proceeding by which a will is probated” than the one by which it was .admitted ■to probate, relate to cases where the “ genuineness of the execution of the will” is contested. See 9 Mart. 90, before cited. 4 Mart. N. S. 413. 3 Ib. N. S, 461.
   The judgment of the court was pronounced by

King, J.

The plaintiff claims her liberty in virtue of a nuncupative testament under private signature, made by her former owner, Martin JDuplessis, a free person of color. The defendants contend that the will is null: 1st. Because it is without date. 2dly. Because it makes no mention of the place where it was received. 3dly. Because the place of residence of the witnesses is not stated in the instrument. There was a judgment for the plaintiff in the court below, and the defendants have appealed.

The will was admitted to probate in the parish of Plaquemines, where the testator died, and upon proof being made, which was satisfactory to the judge, its execution was ordered. The plaintiff contends that this judgment, standing as it does unreversed, cannot be attached collaterally, and that the testament can only be declared null ina direct action. It has been repeatedly held by the late Supreme Court, and maybe considered a well settled point, that the decree of the Probate Court ordering a will to be executed, does not amount to a judgment binding upon those who are not parties to it; and that, notwithstanding sudh order, when the will is offered as the title in virtue pf which property is claimed or withheld, its validity may be enquired into. In the case of O’Donegan v. Knox, 11 La. 388, it was held that admitting the will to probate and granting an order for its execution, were only preliminary proceedings, necessary for the administration of the estate, and not,a judgment binding on those who were not partiest to .them. The principle was subsequently reiterated in the cases of Robert v. Allier’s agent, 17 La. p. 14; Rachal v. Rachal, 1 Rob. 116; and Succession of Duplessis, 10 Rob. 196.

We are not prepared to say that the mere order of the judge.for the execution of a will has the affect of .a judgment, binding-even upon those at whose instance it was made, so far as to conclude -them 'from subsequently contesting the validity of the will, unless upon the' probate the question of its .validity was expressly put at issue. It consequently becomes necessary to-enquire into the alleged nullities.

The will .commences.: “Aujourd’hui le vingt-trois de í’année mille huit cent trente trais, sur son habitation, Martin Duplessis desirant,” &c. No other date or place of making the will is mentioned in the instrument, than those .stated in this clause. Jt'is contended that the omissions constitute fatal defects. The only requisites for the validity of a nuncupative testament under private signature, are prescribed in .articles 1574 and 1575 of the Code, and among these the date and place where it is passed are not enumerated. It is expressly declared that such testaments are subject to .no other formality than those declared in those articles ; and courts can require .the observance of no others. Reasons have been suggested why .it -is important to fix the date of the testament, and place where it was received. The facts may be shown by evidence ¡on the probate of the will. The principle invoked by the defendants, that a will must exhibit, upon its .face, the evidence that all the formalities required for its validity have been fulfilled, has no application to nuncupative testaments under private signature. Such testaments are not required to make full proof of themselves, and the observance of formalities which do not appear upon the face of the will, may.be shown by testimony dehors the instrument. In the ¡case of Falkner v. Friend, the late Supreme Court held that in nuncupative wills under private signature it is not necessary to mention the fulfilment of any formalities'; that it is sufficient, if, when the will is probated, they appear to have been-observed; and such, we think, is the spirit of the Code. 1 Rob. 48.

It is true that it is necessary that a will of this kind should appear to have ¡been received in the presence of five witnesses; but it is not indispensable that ifcheir names or residences should be stated in the act. In the case of Bouthemy v. Dreux, 12 Mart. 639, decided under dispositions of the old Code similar to those of the new, it was held not to be -necessary, in a will of this kind, that their names should appear in the instrument; and in the case of Falkner v. Friend, the objection was 'formally made, that the will did not appear to have been executed in the presence of five witnesses residing in the place, and the omission was held to be immaterial. Proof of the place of residence on the probate of the will, was deemed sufficient.

Although the evidence before us is not such as to show that the will is defective, the plaintiff can only avail herself of it as the foundation of her claim to her liberty, upon adducing proof that it has been admitted to probate, and that its execution hasbeenlegally ordered. This, in our opinion, she has failed to do. The five witnesses who attested the will, appeared before the probate judge. Four of them are stated in they)roces-verbal and decree'to be of tbs’ parish of Plaquemines, and the fifth of the city of- New Orleans. It is essential to the validity of the nuncupative will, under private signature, that it be-executed in presence of five witnesses residing in- the place where the will-is' received-, or of seven residing.out of the place.- C. C. 1574. An exception-) reestablished in regard to wills executed in the country, for whoso validity it is-sufficient if they be received in-the presence of three witnesses residing out of the place, provided a greater number cannot be had. C. C. art. 1576.

The residences of none of the witnesses at the time when they attested the will in question, has been shown. It was indispensable that this fact should have appeared, either upon the face of the instrument or by the testimony at the probate, that the judge might determine whether the will-was properly attested. The evidence adduced before the judge has not established the execution of the testament with the forms required for the validity of a will of this kind, passed either in- a town or in the- country, and was clearly insufficient toauthorise the order for its execution.

The plaintiff’s rights,, however,, have not been- concluded by this failure to administer the necessary proofs,, particularly in a proceeding to' which- she was no party. It has not been shown that any formality has been omitted, essential to the validity of the will; and, in the absence of such proof, we aro not authorisedto-pronounce its nullity. The plaintiff may still- be able to- supply the present defects of proof,-by showing that the witnesses all-resided-inthe parish in which-the will was- made; or, if they did not, that a greater number could not be procured by the exercise of reasonable diligence. Until proof is administered of every fact necessary to establish the validity of the will, its execution can not legally be ordered-; and-until sueh order, the plaintiff can-not avail herself of the-will as a title to her freedom.

The plaintiff further contends that, the defendants have acknowledged-lies' right to her freedom, in an act of partition attempted to be made by the defendants.- That act was never perfected. It was signed by several of the defendants, but not by the others. I-t was never signed by the parish judge, and wants the authenticity of a public act. The only clauses in that instrument, intended-for the benefit of the plaintiff, purport to be donations made to her and several of her children, of certain undivided interests in the succession of Martin Duplessis, ior the purpose of enabling, them to acquire their freedom. As a donation, the act is clearly invalid, even if it have any binding force whatever, in other respects, between such of the parties as have signed it. C. C. art. 1523.

The only judgment that can-be rendered in the present state-of the evidence, is one of non-suit. It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that there be- judgment against tho plaintiff- as in- case of non-suit, she paying the costs- of both courts.

       Eustis, C. J., absent.


text:
    Dunbar v. His Creditors.
    A sale of community property surrendered by a surviving husband to his Creditors, made by order of court without the advice of a family-meeting, is irregular, so far as the minor heirs of the wife are concerned; hut as this irregularity may be cured, and the sale be ratified under art. 1788 of the Civil Code, by afterwards obtaining the ratification of the sale by a family-meeting, the court may make a ratification of the sale by the heirs the condition of allowing them relief on other points.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Paterson, Ratliff and Morgan, for the appellants. Bowman and Lyons, for other opponents. No counsel appeared for the other parties.
   The judgment of the court was pronounced by

Rost, J.

The children of the insolvent, Ananias Dunbar, have appealed from a judgment ordering the syndics to place them on the tableau of distribution for the sum of $13,140 31, and interest, to be paid by preference over all other mortgages, this amount being, in the opinion of the court, the nett proceeds of one half of the property of the community at the time of their mother’s death, and to which they are entitled as her heirs. The appelleesask that the judgment be amended in their favor.

Before entering into an- examination of the case, it is necessary to state that,nearly all the property surrendered by the insolvent was community property, and' that it was sold by the syndics without making the appellants parties to the proceedings. After the surrender, the under tutor of the' appellants was duly authorised, on the advice of a family-meeting, to institute, and did accordingly institute, legal- proceedings to recover, on behalf of the minors, the undivided-half of the community property. On an- exception taken by the syndics to this proceeding, the action was cumulated with the concurso. The syndics subsequently filed their tableau of distribution,. and the' minors filed their opposition, setting out their claims, and praying that, “they be decreed to have a superior mortgage on all the real estate and slaves of the community, and that they be placed on the tableau filed by the syndics, to be paid out of the proceeds of the sale of the land and slaves made by the said syndics, by preference to all other creditors of the insolvent.”

The record in this case being very voluminous, and- the ascertainment of the' state of the accounts between the insolvent and- the community having been-rendered intricate and difficult, in consequence of the destruction of the books-of the insolvent by fire, the court, for the furtherance of public business, and1 with the consent of counsel, referred-it to experts,- so far as it involves the settlement of the affidrs of the community. The experts appointed have conscientiously discharged their duty, and made a report, according to which the sum due the minors would appear to be $8004 93¿, reserving their claims to- certain property of the community, alienated by their father after its dissolution and’ before his failure. The appellants have opposed this report on various grounds, which we will proceed to notice.

I. It is alleged that the experts erred, in placing, on the account the debts due to Johnson and lingley, and to several other's whose names are mentioned iii the statement marked B, annexed to their report, on the ground that not one of those claims was either placed on the bila-n by the insolvent, or on the tableau of distribution by the syndics ; that these parties have never presented their claims to the syndics for allowance; that such of the claims as fell due in 1834 and 1835, were prescribed against prior to ths surrender made by the insolvent, and are all now barred by prescription.

We do not think there is error in this. The existence of the debts, at the time of the dissolution of the community in 1833, is proved beyond all doubt. It is shown that the insolvent had, at that time, large means under his control, and that he was prompt in the payment of debts due by him, until serious losses and the general derangement of the monetary affairs of the country, compelled him to make a surrender of his property to his creditors, in May, 1840. His schedule contains a detailed account of his indebtedness, and he stated under oath that it was in that respect faithful and correct. None of the claims opposed are found in the schedule, and those who hold them, among whom is the Canal and Banking Company, have never presented them to the syndics. Were the books of the insolvent in existence, we are are satisfied that they would show that those claims had been paid, and as they are not in existence the evidence adduced makes out a prima facie case of payment. We cannot go upon the presumption that the Canal and Banking Company, and the other creditors, have abandoned their claims; nemo facile presumiiur donare. They must be considered as paid, and no provision is to be made for them in the tableau of distribution.

II. As to the debt due the estate of Linton: It existed at the dissolution of the community, and whether or not it has since beén novated is immaterial. Whether novated or paid by Dunbar, the community is to be charged with the amount due Linton at its dissolution. That amount is proved by the account of Linton, and the testimony of Wm. E. Thompson. The judgment obtained by Mrs. Linton, as administratrix of her husband’s estate, on mortgage notes, includes the sum of $6661 13, this sum being the first item of the account rendered a few days before the death of Mrs. Dunbar.

III. The appellants complain that the sum of $340Ji, charged as expenses- of the plantation for the year 1833, is much too large, and should be' reduced to $2000. There is very little evidence in the record to guide us in relation to this item. Considering the number of slaves engaged on the plantation and the crop made, we are disposed to think the sum allowed for expenses as rather too high, and we will reduce it to $2706.

IV. V, VI. There is nothing in the fourth and fifth objections. But the sixth appears to be well founded, as to the manner in which the interest is calculated in the report. It would have been more regular to have charge the three several sums paid by Dunbar as interest, at the time he paid the instalments, and to add to this the instalments paid, the interest thereon, and the balance due on the 6th May, 1837, to wit; $5,312 50, with interest from that date. This mode of calculating interest makes a difference of $234 32, in favor of the appellants. There is also an error in the calculation of interest on the Linton debt, instead of $2,432 60, it should be $2,226 46. The difference of $212 14 must be allowed to the appellants. ■

These changes in the report of the experts will make the claim' of the minors amount to the sum of $9,151 39¿, without prejudice to their rights in the property of the community alienated by their fatherafter its dissolution. Those alienations cannot be made valid, so far as they embrace the rights of the minors ; the property which they convey has never come into' the hands of the syndics, and the claims of the miners in relation to it cannot be settled in the concurso.

The property surrendered was sold at public auction, and the sale of that portion of it which belonged to the community not having been made by the order of the judge rendered on the advice of a family meeting, was irregular, so far as the minors are concerned. But under the spirit of art. 1788 of the Civil Code, the irregularity may be cured, and the sale ratified, by resorting now to a similar proceeding; and for the preservation of the rights of the purchasers, we will require this ratification before the appellants are authorised to receive the sum allowed them by this decree.

It is, therefore, ordered that the judgment of the court below be amended: That the appellants be placed on the tableau of distribution for the sum of 19,151 39¿, with legal interest from the 21st December, 1844, till paid, without prejudice to their rights in the property of the community which existed between their mother and the insolvent, alienated by the latter after her death, and before his failure: That the judgment as amended be affirmed; and that the sum allowed the appellants be paid to them by preference over all other mortgage or ordinary claims, on their producing to the syndics a decree of court, rendered on the advice of a family meeting, ratifying and confirming the sale of the community property made by the syndics, as authorised by art. 1788 of the Civil Code. It is further ordered, that the costs of this appeal be paid by the appellants. „

         Eus-ris. C. J., absent.


text:
    Succession of Chew.
    It is notneoessary that the stat. of 11 March, 1830, relative to the giving- of special mortgages to secure the rights of minors, should be read to the under-tutor and members of a family-meeting convoked, at the instance of the tutor, for the purpose of advising as to the propriety of selling the interest of the minors improperly belonging to himself as surviving partner of- the community, and to his children.
    Rule to show cause why a mandamus should not be issued to the judge of the Second District Court of New Orleans, Canon, J.-
    <7. B. Duncan, for the rule.
   The judgment of the court was pronounced by

Slidell, J.

Beverly Chew, as tutor of his minor children, obtained, under order of. court, the session of a family-meeting to advise upon the propriety of selling the interest of said minors in certain property belonging to himself, as surviving partner in community, and his children. A duly certified copy of the proGeeeings of the family-meeting was filed, and a petition presented for its homologation, which the judge refused to grant because, in the procasverbal of the proceedings, the notary does not declare that he had read to the members of the family-meeting and the under-tutor, the statute of 11 March, 1830, pursuant to the 7th section thereof, which declares: “ That it is hereby made the duty of all public officers before whom family-meetings shall be called, to read this act to them and to the under-tutors ; and any officer failing to perform this duty shall be responsible for any loss arising from such neglect, either to the under-tutor or to the minor or minors.” The statute in question-treats of the subject of giving special mortgages to secure the rights of minors, and is in our opinion irrelevant to the present case.

It is therefore ordered that a peremptory mandamus issue as prayed for m> this case, commanding the judge of the Second District Court of New Orleans, to sign an order homologating the proceedings of the family-meeting held before David L. McKay, on the 27th of April, 1847, in the matter of the succession of the wife of Beverly Cheto, and to proceed therein in other respects according to law.

       Eustis, C. J., absent.


author: Slidell, J.

text:
    Little et al. v. Commissioners of the Consolidated Association.
    Whether a decree, from which a suspensive -appeal is prayed for;bo a newr judgment? changing the legal rights of the parties as fixed by a 'former judgment, or be merely declaratory of the legal effect of the first judgment, is a question which cannot be determined on arule'to show cause why a mandamus should not be directed to the inferior court commanding it1-to allow an appeal; it can only be determined-when1 the case comes up onthe appeal.
    RULE to show cause why a mandamus should not be issued commanding the judge of the Fifth District Court of'New Orleans to állow a suspensive appeal. The manager's of the Consolidated Association of the Planters of Louisiana allege : That on the 1st of March last-a judgment'was rendered against them in the Fifth District Court of New Orleans, in favor of Jacob Little Sf Co., in the following words: “ It is ordered that the said Jacob Little Co. recover of the defendants, the Managers of the Consolidated Association of the Planters of Louisiana, the sum of $5,000, with legal interest from the 3d October, 1846, till paid and costs ; to be satisfied and paid by the said managers'in the course of administration of the affairs of the Consolidated Association of the Planters of Louisiana; and that said plaintiffs do .furnish satisfactory personal security according to art. 2258 of the Civil Code of Louisianna.” That from this judgment the petitioners took a devolutive appeal. That subsequently, on the 7th May following, the plaintiffs, Jacob Little S¡- Co., took a rule on petitioners to show cause why the bond filed by them should not be approved, .and petitioners should not allow-the judgment-to be-received in payment of any claims of said bank as provided by law; -whereupon a final judgment was rendered on the 27th of said month of May, ordering that the objections filed to the said rule be overruled, and that the bond filed by said plaintiffs be approved, and the defendants in said rule allow the said judgment to be received in payment of any of their claims, as provided by-law. Petitioners further show that considering said judgment might cause them an irreparable injury, they applied to the judge of the court for a suspensive appeal therefrom, but that the said judge declined granting said appeal.
    Wherefore they pray, that- a wx-it of mandamus .may issue, directed to the said judge, commanding him to grant said appeal.

      Labarre, for the rule.

      Buchanan, Judge of the Fifth Distinct Court,
    showed.cause against the rule.: That the petitionei's have never applied for a suspensive appeal from the judgment rendered on the 1st of Mai'ch: Thaton the ,7th of May the plaintiffs took a rule on the petitioners to show-cause why the bond filed should not be received, and why the latter should not receive the said judgment .in payment of any claim of said Association pro tanto, as provided bylaw: That subsequently to the rule taken by the petitioners in .the District Court on the 7th of May, they obtained a devolutive appeal from that judgment: That by an act of 26th March, 1842 (Sess. Acts, p. 454.), the legislature required the banks, in course of liquidation, to receive their obligations in payment of notes and obligations due to them : That the petitioners not having taken a suspensive appeal from the judgment of the 1st March, were bound to settle it in the course of liquidation, without delay: That the order made on the rule in the Disti-ict-Court-was a modification of the foi'm of execution of said judgment; and that Little et al. .are entitled to the benefit of it, as they would have been to an execution under an ordinary judgment; That to .allow the ¡mandamus to bo issued will be, in effect, to grant th® petitioners a suspensive appeal, to which they are not enfitled.
   The judgment of the court was pronounced by

Slidell, J.

The decree in this case is a final decree. Whether in reality it is a new decree, changing the legal rights of the parties as established by the first judgment in the cause, or whether it is merely declaratory of the legal effect of that judgment, is a question which we do not think we have a right to determine on a rule for a mandamus, and can only consider when the case cpmes before us on the appeal. We think the defendants entitled t.o a suspensive appeal, and the mandamus is therefore granted.

It is ordered that a peremptory mandamus issue in this case, commanding the Hon. A. M. Buchannan, judge of the Fifth District Court of New Orleans, to grant and sign an order for a suspensive appeal, as applied for by the defendants jn thi.s pas,e,

       Bustis, C. J., absent.


text:
    The State v. Dubord.
    Sec. 3 of the stat. of 6 March, 1819, punishes three distinct offences, the stealing — the inveigling — and the carrying away, of a slave, each of which subjects the offender to the same punishment; and where, on an indictment under this statute, the accused is charged with the three offences, and a general verdict of guilty is found against him, and no objection is made to th.e sufficiency of the indictment as to two of the offences, the verdict will not be disturbed.
    The provision of sec. 3 of the stat. of 6 March, 1819, as to the stealing of a slave, creates a new offence, different from larceny; and it is not necessary, in indictments under it, to aver the value of the slave, or to use the technical terms descriptive of larceny. The indictment must bo governed by the rules applicable to offences created by statute.
    A verdict will not be disturbed on the ground of a variance between the names of the jurors who were sworn and tried the case, and those on the list furnished to the accused before the trial. An objection to a'juror that his name was not on the list of jurors delivered to the accused before the trial, should have been made when he was presented to he sworn.
    Appeal from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.
    The defendant claims from this court a reversal of the judgment and proceedings below, upon the following assignment of errors : 1st. That the indictment does not set forth the value of the slave alleged to have been stolen. 2d. That J. N. Otto, S. Golding, L. N. Johan and J. L. Krabbe, were sworn and tried the case, whereas it appears from the sheriff’s list of jurors, that J. M. Otto, J. Golding, L. N. Johan, J, F. Krabbe, were the jurors summoned and drawn to serve during that term.
    The first objection is based on the assumption that the offence for which the defendant was tried is a larceny. It is evident from the whole context of the statute of 1819, that the offence at which it is levelled is not the stealing of slaves merely, but all other means or devices by which “ the owner is deprived of the use and benefit of his slave.” The gist of the offenee is “ the depriving the owner of the use and benefit'd’ his slave.” This may be done by stealing .the slave, or by inveigling him away without the animus furandi. And yet the offender would undoubtedly be amenable to the penalties of this statute: because the offence consists in “ depriving the owner of the use and benefit of his slave,” and not in the manner or mode by which he is so deprived of that ¡use and benefit. The offence charged is not a larceny, and cannot be governed by the same rules. In the case of the State v. H. Miles, 2 Nott 8f McCord 2, Gantt, J., dissenting from the majority on another point in the case, says arguendo “ that the law of larceny has nothing to do with the case.” The judge who delivered the opinion of the majority in that case says: “The act declares that any person who shall be convicted, of stealing a slave shall be adjudged guilty of felony and suffer death without benefit of clergy; and as the penalty is annexed to the specific offence, the value of the property is immaterial. Perhaps it is questionable whether it is necessary to lay the property of any value, and, as has been remarked by one of my brethren, the legislature may make the stealing of a pin a capital felony.” ‘1 he statute of South Carolina, as recited in the opinion of the judges, is in the very words of our own, with ti e exception of the penalty. This interpretation of the act of 1819, is strengthened by the practice of all the prosecuting officers of the State since the passage of the act.
    As to the second ground; No objection is made to the personal qualifications of the jurors who tried the cause. It is not pretended that they are not the jurors summoned by the sheriff to serve during the term: let it be remembered also that when they were presented to the prisoner, and he was asked whether lie desired to bo tried by them, he accepted them. They are, then, as the record shows, jurors of his own choice. His application to this court is therefore based upon the mere naked variance between the clerk’s list of jurors drawn and selected, and the entry in the minutes of the jurors who actually served in the case. It is idle to say that they are not the same persons: the slight discrepancy in their names will not raise the presumption against the fact that they were summoned by the sheriff at the place indicated as their residence in the voters’ list from which their names are taken. In the earlier stages of the common law almost any defect in the record, or any discrepancy between the different parts of it, was sufficient to sustain a writ of error. The reason given in the books for this great nicety is a singular one. “ It, the writ of error, was never granted, except when the king, from justice, when there was really error, or from favor when there was no error, was willing the judgment should be reversed. After writ of error granted, the attorney general never made any opposition ; because, either he had certified that there was error, and then he could not argue agaist his own certificate; or the crown meant to show favor, and then he had orders not to oppose. The King, who alone was concerned as prosecutor, and who had the absolute power of pardon, having thus expressed his willingness that the judgment should be reversed, the Court of King’s Bench reversed it upon very slight and trivial objections, which could not have prevailod if any opposition had been made, or if the precedenthad been of any consequence. The form of the reversal “ for errors assigned and other errors appearing upon the record”, delivered them from the necessity of specifying any.” 1 Chitty, 747, 748. But when in the reign of Queen Ann, it was decided that a writ of error was due ex debito justitice, this nice and technical jurisprudence naturally changed, and a substantial .error would alone give rise to a reversal of the judgment. 1 Chitty, 752. Courts of justice have gradually abandoned these niceties to look to the real interests of justice. As a proof of this, it may be seen by an examination of the cases, that these defects are taken advantage of by motion for a new trial. Some equitable and subtantial ground is sought for, behind the error, for a new trial, and.little or no reliance is placed upon the assignment of the error. In the State v. O’Driscall, (2 Bay, 153,) the defect was apparent on the face of the record; the prisoner moved tor a new trial, which was refused, and yet he does not take out a writ of error. In the King v. Hunt, 6 E. R. 475, a case in which a special jury had been struck, two of the special jurymen were not summoned: this omission appeared on the record. A new trial was prayed for and refused, and yet the prisioner does not take out a writ of error. The same observation may be made of the case of Hill v. Yales, (12 East. 229,) and of the case of the juryman in the note ; for although the record was right in both these cases, yet after the facts had been shown upon the motion for a new trial, the error became apparent and might have been assigned, But whenever defects of this character have been brought to the notice of courts of justice upon a writ of error, they have always refused to reverse the judgment. In Bellows v. Williams, Kirby, 166, one of the jurors who tried the case in the court below sat upon the trial of the same case in the Superior Court. The court refused to arrest the judgment, on the ground that the party had once accepted the juror, and that it was too late to object to him after verdict. In Howard v. Gifford, 1 Pick. 43, two talesmen sat upon the trial of a cause for which they were neither summoned nor sworn. Upon writ of error coram nobis, it was held .that the objection came too late after verdict. See I Pick, 42, n. 2.; and Amherst y. Hadly, lb. Hill v. Yates is .mentioned and relied upon by the court; that case is law in all the States of the Union; it is relied upon in Kennedy’s case, 1 Rob. 590. In the case of Horsey v. State, precisely the same ground taken by the prisoner in this case was assigned as error. The objection is taken in these-words: “ There is a variance between the venire for the petit jury, in the names of the jury, and the names of the jury empannelled to try the cause, .and who have found the verdict.” Horsey v. State, 3 Har. is and Johnson’s R. 2. The court refused to arrest the judgment, and sentence .of death was -passed. This .case is strictly in point — it was decided upon writ of error.
    The true rule is this : that if-the parly does not-take the objection when the juror is sworn, it shall not avail him .after verdict. In the State v. Fisher, 2 Nott & McCord, 264, the judge states the rule, and adds: “ I cannot forbear saying that if this were not law, I am satisfied, from my own experience, that justice would be laid prostrate at the feet of offenders.” The juror might have been objected to when he was called to be sworn. In the State v. Powell, 2 Halst, 246, a juror whose name was accidentally omitted in the panel delivered to the prisoner, was objected to and .passed. The prisoner in this case might have made the same objection to these jurors. Besides, the jury was empannelled on the 19th January, and .continued from day to day until the 23d— the most ordinary diligence would have onabled him to discover the error. The court will not relieve from an error which might have been cured if he had chosen to avail himself of it at the proper time. The case of the United States v. Wilson, 1 Bald. 78, and the case of Honey v. Hobson, show plainly that if the parties had accepted .the jurors the error would have been cured. The reporter in both cases takes care to state that the parties neither consented nor objected. The case of King v. Tremaine, 16 E. C. L. R. 318, turned upon the fact that the juror was incompetent to serve, having neither the required age nor the property qualification, which is not protended in the present case. The case of Iiasset v. Payne, C.ro. Eliz. 256, and the .case cited from Barnes, were both cases of attaint, and overruled by Hill v. Yates.

      R. Hunt, for the appellant,
    I. The indictment is defective, because it does not set forth the value of the slave charged to have been stolen; and does not contain the necessary and technical terms of art.
    Starkie says: “ As it is essential to every species of larceny that the property be of some value, (a-) it seems to be equally necessary that the value should appear to the court upon record. It is questioned by Serg’t. Hawkins, whether the value of the goods be essential to an indictment for trespass or any other crime where the value is immaterial to the nature of the offence, since in many ancient writs of trespass the value of the goods-is not expressed. There seems however to be this material distinction between writs in civil proceedings and indictments ; in the former case, the damages are to .be assessed by a jury, and therefore it is not so requisite to set out the precise value upon the face of the record ; but in criminal cases, the punishment is frequently inflicted at the .discretion of the court, which ought therefore to be judicially informed of the circumstances and magnitude of the offence.-” Note («.). See Mrs: Pldpoe’s Case, Leach 774, and Com. D.ig. Ind. c. 2. This seems to be necessary even in those cases where a statute makes it .capital to steal a specific chattel, as a cow, &c.” Stark, Cr. PL 221.
    The distinction between grand and petty larceny, in England, was abolished by 7 and 8 G. 4, c. 29, s. 2; yet Archbold says, “the value of the chattels, in cases of larceny, must be stated-” Arch. C. P. 49, 176. So, the value must be stated, where a statute makes it penal to steal chattels real, or things that belong to the realty. Thus the .7 and 8 G. 4, c. 29, .s. 44, enacts, that if any person shall steal any lead, &c., or other metal fixed in or to any building whatever, he shall, on conviction thereof, be punished in the same manner as in the ■case of simple larceny. Arch. C. PL appendix 37. The indictments on this statute, after the usual commencement, run thus : “ Sixty pounds weight of lead (or iron, brass, or other metal,) of the value of six shillings, the property ■of J. N., then and there being fixed to the dwelling house, &c., then and there feloniously did steal, take and carry away, &c.” Arch. Cr. PI. 201. The indictments also for stealing metal fixed in land, &c., on the same statute, in like manner, set forth the value of the metal stolen. Arch. Cr. PI. 201, 202. All. the precedents in the books agree on this point. It is true that, in the precedents of indictments for stealing records, wills, or writings relating to real estate, the value is not alleged. Arch. 194, 195, 196: But the statute expressly declares, “ it shall' not, in any indictment for such offence, be necessary to allege that the article,, in respect of which the offense is committed, is the property of any person, or that the same is of any value.” Exceptio'probat regulam. This statutory exception acknowledges the general rule.
    In the common law States of the Union, where slaves are held-to be personal! property, they are, of course, subjects of theft. Our Civil Code, art. 461',. says: “ Slaves, though moveables by their nature, are considered as immovables by the operation of law” ; and the statute of 1819, upon which this indictment is framed, enacts, that every person, “ who shall inveigle, steal, or carry away any negro, or other slave or slaves-, or shall, &c., shall, on convictiom thereof, suffer imprisonment at hard labor, not less than two years, nor more-than twenty years.” Now, the-indictment charges-that Hubord did inveigle,, steal, and carry away a certain slave, named Henry, the property of one J. Des~ maries. This is clearly a charge of stealing — of larceny. The value of the-slave should therefore have been set forth.
    But the attorney general says :• “ The offence charged upon the defendant is-not a larceny, and cannot be governed by the same rules.” Surely the charger that the defendant did steal, is a charge of larceny. He proceeds : “It is evident from the whole context of this statute, that the offence at which it islevelled is not the stealing of slaves merely, but all other means or devices, by which ‘ the owner is deprived of the use and benefit of his slave.’ The-gist of the offence is ‘ the depriving the owner of the use and benefit of his: slave.’ This maybe done by stealing the slave, or by inveigling him without the animus furandi. And yet the offender would undoubtedly be-amenableto the-penalties of this statute ; because the offence- consists in ‘ depriving the owner of the use and benefit of his slave,’ and not in the manner or mode by which he is so deprived of that use and benefit.”
    We are told first, that “ the offence at which the statute is levelled is, all the-means and devices by which the owner is deprived of the use and benefit of his slave.” And immediately after that, “ the offence consists in depriving the owner of the use and benefit of his slave, and not in the manner or mode by which he is so deprived of that use and benefit!” Neither of these contradictory propositions can be maintained. Suppose- a slave should be severely beaten, or maimed, or killed by a person who does not own him. The owner would be deprived of the benefit and use of his slave; and yet the wrong doer would not be punishable under this statute. The statute provides against three classes of offenders, viz: 1st. Those who inveigle, steal, and carry away slaves. 2d. Those who hire, aid, or counsel persons to inveigle, steal, and carry away slaves, so as to deprive the owner of their use and benefit. 3d. Those who aid a slave in running away. The notion that,to constitute a larceny, there must be an intention on the part of the thief to appropriate the thing stolen to his own use ; in other words, that the act must be done lucri causa, is not well founded. “ Larceny is the felonious taking and carrying away the personal goods of another.” Black. Com. Dalton says: “ Larceny is a fraudulent and felonious taking away another man’s personal goods (removed from his body or person), in the absence of the owner, and without his knowledge.” Pultou : “ Larceny is a fraudulent taking away another man’s goods, without the knowledge of him whose the goods be.” Lambard: “ Larceny is the felonious and fraudulent taking of another man’s personal goods, without his will, to the intent to steal them.”

      In Rex v. Cabbage, R. & R. 293 (decided in 1815,) the prisoner to screen his accomplice who was indicted for horse stealing, broke into the prosecutor’s stable, and took away the horse, which he backed into a coal pit and killed. It was objected by the prisoner’s counsel, that this was not larceny, because the horse was not taken with an intention on the taker’s part to appropriate it to his own use, animo furandi el lucri causa. In Easter Term, the judges met and considered the case. The majority of the judges held the conviction right. Richards, B., Bayley, J., Chambre, J., Thomson, C. B., Gibbs, C. J., and Lord Ellenborough, held it not essential to constitute a larceny, that the taking should be iucri causa ; they thought “ a taking fraudulently, with intent wholly to deprive the owner of the property sufficient.” Some of the judges thought that the object of serving the accomplice by the destruction of the horse might be deemed Iucri causa, though not in a pecuniary way. So in Rex v. Morfü, R. & R. 307, where the prisoner took his master’s corn to give to his master’s horse. Eight of the judges held that this was felony; that “ the purpose to which the prisoner intend ed to apply the corn did not vary the case.” Graham, B., Wood, B. and Dallas, thought this not a felony.
    In the 1st Report of the Commissioners on Criminal Law, printed by order of the House of Commons, 30th July, 1834, the rules on this point are laid down as follows :
    “1st. The taking and carrying away are felonies, where the goods are taken against the will of the owner, either in his absence, or in a clandestine manner, or where possession is obtained by force or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods ; and where the taker intends, in any such case, fraudulently to deprive the owner of his entire interest in the property against his will.” Rep, p. 16. “ The ulterior motive by which the taker is influenced in despoiling the owner of his property altogether, whether it be to- benefit himself or another, orto injure any one by the taking, is immaterial.” Rep. p. 17.
    The attorney general says : “ The gist of the offence' (in the statute of 1819, and in the case of Dubord) is the depriving the owner of the use and benefit of his slave,” which, he adds, “may be done — -(and the indictment in this case, charges that it has been dono) — by stealing the slave.”
    Now it would be difficult to describe a theft more accurately than the attorney general has described it in these words, and yet he says, this is not a larceny. He adds : “In the case of The State v. Miles, 2 Nott & McCord, 2, Gantt, J., dissenting from the majority on another point in the case, says arguendo, “ that the law of larceny has nothing to do with this case.” Unfortunately the majority of the court differ with Judge Gantt on this point, ns well as on the other points of Miles- case. In that case a motion was made for anew trial, and in arrest of judgment, upon the- grounds: I. That the act (from which our statue was borrowed,) contemplated two distinct offences: first, stealingfrom the owner; and secondly, stealingfrom the employer: and that the indictment was not supported by the evidence, as the negro was in the possession of the employer, and not of the owner. II. That the offence, if commited at all, was committed in Willlamsburgh and not in Charleston District-Ill. That the jury were authorised to find the prisoner guilty of petit larceny, under the indictment,and the judge ought to have instructed them to that effect. The court decided : 1st, “That it was the intentio-n of the legislature to make' the stealing of a negro, whether from the master or employer, a capital felony ; and that in the case before them, the master had net parted with the' possession of the negro:” 2d, It isadmitted, said the court, “that the evidence of the prisoner’s guilt was sufficient to authorise a conviction, if he had been indicted for a larceny at common law; and that the selling of the negro i» Charleston, was sufficient to subject him to a trial there for such larceny. But it is contended that the offence created by this act, is-in the manner of a compound larceny, and that the act of stealing and carrying away must be accompanied with inveigling, to consummate the felony; and as the inveigling, if any, was in Williamsburg, the defendant must be tiled there, and not in Charleston.” The court held that the stealing and carrying away were- of themselves1 a felony, and that it was not neccessary that the inveigling should accompany them under the act: that the act embraced all who should steal and carry away, with or without inveigling : That personal property is always considered constructively in the possession of the owner, and whenever one man disposes of another’s property without his will, and when he has a right to his service, the law implies a loss of service :” 3d. The court said : the presiding judge informed the jury, that “though he advised them not to find a verdict of petit larceny, they might find a special verdict, declaring the property of less value than twelve pence. But the jury found a general verdict, which puts an end to this point.” The court took occasion to add, that even if the jury had found the special verdict, the punishment would have been the same, as the penalty was annexed to the specific oflenco. flore the case, with all the points involved, ended. But the judge, who delivered the opinion of the court, remarked: “ Perhaps it is questionable whether it is necessary to lay the property of any value.” This is a mere obiter dictum. The point was not before the court; the indictment in the case appears to have set forth the value of the slave ; and no court in the Union has more frequently and carefully declared, that “the opinions of the court are only to be considered as authority, on the points actually decided.” This obiter dictum is entitled to no weight, against the authorities cited in this argument.
    But we are told that the offence is a new one, and is charged in the words of the statute; and that this is sufficient in an indictment under the statute. Starkie, in his Criminal Pleadings, p. 235, ch. 12, expressly denies this, and lays down the contrary rule, and so does Chitty in 1 C. C. L. p, 2/6- (marg.) So does Hawk., b. 2, c. 25, s. 111. In the case of The State v. Haines, 3 McCord’s R. 543, the court said : “ Suppose this to be a new offence. It is as necessary in the case of a new offence, as in the case of an old one, that a man should know what he is charged with, and how he is to defend himself. It is evident that the law has been mistaken by the solicitor, in his supposing that it was enough to say an offence has been committed in the words of the act.” The court then stated “ the reasons for which the law exacts a certain particular description of an offence,” They are : “ 1st, to identify the charge ; 2d, to1 enable the defendant to plead, autrefois acquit, or convict; 3d, to warrant the court in granting or refusing any particular right, claimed as incident to the case; 4th, to enable the defendant to prepare for his defence, to plead, or to demur, &c,; 5th, finally and chiefly, to enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to Warrant their judgment; and, also, in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender. Now this certainty consists of two parts. The matter to be charged, and the manner of charging it. Hence has originated the error as to the law. The matter is the crime, and this, .in a new of-fence by statute, must be in the language of the statute, and with all that is necessary to constitute the crime. Hawk. 73, 77. Chit. 1, But the manner is as necessary in the one case, as in the other ; and Starkie, in p. 236, of his treatise on Criminal Proceedings, says: ‘it may therefore be assumed, that there is no difference between common law and statutable offences, as far as regards the general rules, accordiug, to which the expanded description of the of-fence should be expressed on the record ; except, indeed,- in those instances (and the exception confirms the observation,) where the legislature has pez-emptorily directed that some general form of words shall be used.’ And this is confirmed by Chitty, vol. l,.p. 275, and by Hawk. 2, ch. 25, ss. 99, 111. Although they admit that it has been held otherwise by Lord Holt, whose authority,however, on the subject cannot be put in the scale against the satisfactory reasoning of the author referred to, and the repeated decisions made since his day.”
    From these views, it is manifest that it was necessary to set forth in the indictment against Dubord, the value of the slave charged to have been stolen by him. It is submitted that it was also necessary in chax'ging him with stealing a negro, to make use of the technical and appropriate words descriptive of the offence of stealing. The law knows best how to express itself in its own terms. “ By successive decisions the legal value and weight of a term or phrase of art is ascertained; and should a doubt arise as to its meaning, reference for the purpose of removing it, may be had to former authorities, whilst every new expression would introduce fresh uncei'taiuty, and the benefit to be derived from precedent would-be wholly lost.” St. 81. Blackstone says : “ In some crimes particular words of art must be used, which- are so appropriated by the law to express the precise idea which it entertains of the offence, that no other words, however synonomous they may seem, are capable of doing it. Thus in larcenies, the words felonice cepit et asportavit are necessaiy to every indictment; for these only can express the veiy offence.” 4 Bl, Com. 307. Chitty says: “So in an indictment for iai'ceny, the words ‘feloniously took and can-ied away,’ are necessary.” 1 C. C. L. 244. Starkie says: “ In case of larceny, the words ‘feloniously took and- carried away’ the goods, or ‘took and led away,’ the cattle, are essential.” Archbold says : “ They are technical words, essential to the definition of the offence, and if omittod the defendant may move in arrest of judgment.” Arch. C. PI. 50. In the indictment before the court, the technical'term, or word-of- art,-“fóofr,' ‘ ccpit,’ is omitted. The indictment is therefore defective.
    II. Should these objections to-the indictment be overrulod, the defendant prays for-a new trial-arid an arrest of judgment, upon this ground : It appears by the record, -that- J. N.-Otto, S. Golding, L. N-. Jahan, J. Robb, and /. L. Krabbe, who were sworn and-acted as jurors in the trial- of this case, are not the same persons-who were drawn¡-summoned-, and-returned to serve as jurors.
    The act of March 13,1833, B. & C. Dig. 526, declares “ that it shall be lawful for the sheriff of the parish of Orleans, or his deputy, together with the clerk of the Criminal’Court of the First District, or his deputy, to draw during the last week in the'month, or-, as -soon thereafter- as convenient, under the directionof the court, (.in--the french- text,- ‘ d’apres-l’ordre de la cour,’) the numbei of jurors, &c., as provided-in the act of 25th March, 1831.” The act of 25th March, 1831-, B. & C-. 524, states that to qualify a man to serve as a juror, he must “ have resided, ut least-twelve months before a>new venire is formed in the parish or district in- w-hieh-the jury, is summoned.” — Section 1-. The 3d section provides, “ that if, at anytime, the number of j.urors drawn to serve in any court of the first district of this State,- should become insufficient for the good and speedy administration of justice, the judge of such court is.authorised to direct that such-an additional-number of jurors as he shall consider requisite; shall be drawn according, to-law, on such- a-day as he shall-appoint; and if-it should happen that the-said-drawing be not themmade, the judge shall fix another day for that purpose.”
    It appears from-the record that,.in conformity with these laws, the judge of the court below, ordered a remire to be issued on the day of December,-1846, for summoning forty-eight jurors to ser-ve during the month of January,-1847; and a second venire to be issued on the • day of January, 1-847,-di-recting an additional number-of jurors to be summoned-for January, 1847. It makes no difference whether these orders are particular precepts to-the sheriff, or writs of venire facias; or whether they-are more general-precepts-in- the nature of writs of venire facias. They are certainly orders directedby the judge-to the sheriff and. the olerk-of the court, commanding them, &c., and ought to be under seal;- and for want of the seal of- the court, the prooess is erroneous,, and all the proceedings under it are void. See The People v.-MeKayr 1-8 Johns. Rep.
    1IL But suppose that the law-of LouisiaDa-is otherwise, and-that the process-need not be under seal. The 35th sec. of the act of- 1805, provides that the accused, in cases similar to the present, shall have a copy of the list of the jury,, who are to pass on his trial, delivered-to him,-at least two entire days before he shall be tried, B. & C. 248. The sheriff and clerk who draw-and summon-the jurors, being officers of- dignity and-conseqpence, and acting, under the obligation of an oath, and the jurors being summoned beforehand, and the list being delivered to the accused, who has thereby notice of the jurors, their characters, connexions and relations; their- associations,-passions and prejudice,- so that he may discreetly exercise the right of ohallenge; it was thought that the accused would be secured in the right of trial by an impartial-jury. In the present case, a correct copy of the lists of the jui’ors drawn and summoned to pass on Dubord’s trial, was delivered to him more than two days before lie was tried. The record also shows that J. N. Otto, S. Golding, L.-N. Jahan, J. liobb, and J. L. Krabbe, were sworn and acted as jurors in the case, and that they are not the same persons who were drawn and summoned to serve in the case» The attorney general has not attempted to explain this variance, which is patent on the record. He has not attempted to prove that the jurors sworn were the same persons who were summoned and returned on the venire. The list ofjurors who were sworn and who tried the case, and the list of jurors drawn and summoned, and' returned, a copy of which list was served on the accused-, show variances in the Christian na lies, the middle names, and the surnames » and all the books agree that these are material variances. J. 11. McQuilland, instead of Ii. J. McQuilland, was held a material variance. 5 D. & E. 195. McCann and McCarn, Shakepear and Shakespeare, Tabart and Tarbarl, Shutliff and Shirtliff, which the attorney general would daintily term “ slight discrepancies,” have been held to be fatal variances. R. & li. 351. 2 East. 83. 5 Taunt. 814. 1 C. C. L. 216. .
    The attorney general says: “ No objection is made to the personal quulilications of the jurors who-tried the cause,” and he calls the defendant’s objection a mere technical objection, not founded in reason. The true.principle in this case, is to consider-whetherthe party accused has'had-the security of a lawful jury to try him ? All questions touching the formation-of juries must be examined by the judges with-the most scrutinising eye. The .complaint in the present case is, that after the judge had issued his order according -to the acts of 1831 and 1833 ; after-the-clerk-and sheriff-had drawn'from the jury-box the names of the jurors; after these jurors had been summoned,-and-a-copy-of’the list of them had been delivered to the accused, and due returns had boen made of these proceedings,to the court; after thedist of'tho.jury who-were to pass on liis trial had been settled and determined according to law,-a change-was made, and the accused was tried by jurors not on thedist — ot-.rather, thedist made out according to law was set asida, and a mew--and illegal list substituted. The defendant was entitled-to'be tried,-and ought to have been-tried, out-of-'the-list duly drawn and summoned, and served upon him. He was-tried out of another list. Five persons sat upon his trial, who were not on the legal list of the jury. IF five persons can be thus placed on a jury, how easy would it be to pack the entire jury? Where would then be the-right to a trial by an impartial'jury ?
    When the name of a juror is drawn from the jury-box according-tolaw, the .presumption undoubtedly is-that the person whose-name is-thus drawn has the qualifications of a juror. But there is no such presumption >in .favor of one •whose name is not drawn from the jury-box. The record shows that the names of five persons who sat as jurors in this case, were not drawn from the jury-box. The presumption of law is that they wore-not-qualified to actas jurors. The attorney general did-Bot.offer.any proof-to show that they were good jurors, duly qualified. None of the statutes of jeofail -and amendment in England, extend to criminal-proceedings. The stats. 14 Ed. 3, c..G ; 8II. 6, c. ;12, 15; 32 H. -8, e. 30 ; 21 Jac. 1, c. 13 ; 27 -Eliz. c. 5; 4 Ann. c. 16 ; 5 G. 1, c. 13 ; 4 G. 2, c. 26 ; 18 Eliz. c. 14, do no apply to criminal -cases. As to >¡the effect of these-variances, see Trials per Pais, p. 60 to p. 63. Coke’s Reports, p. 150 and 151. 8 Bac. Abridg. p. 776. -2 Hawk, 416, 4/18, 421, 422. Norman v. Beamont. Willes, 484. Wrayv. Thorn, Willes, 488. Kingv. Tremaine, 16 Eng. G. L. Rep. 319. In 1'Baldwin, 83, April 1830, before J. Baldwin, of the Supreme Court of the United States, and J. HopUinson, district judge: “Before-the exhaustion of the panel, several jurors were called,-who had been returned on the ■venire by wrong names. John -Byrly 'had been re,.turned by the name of J ohn Byerly; Matthew Pennypacker, in the name of Nathan Pennypacker; George hi. Pauling in the name of George M. Pauling.” ¿By the court: “ The jurors cannot be sworn. It would be a mistrial, if it .should appear by the record that the juror sworn was not .the -same person who was summoned and returned on the venire. The district .attorney objected ; prisoner’s counsel neither otjecting nor assenting.”
    In answer to these authorities, the attorney general refers to The King v. •Hunt, 4 B. & Aid. 430, a case in which a special jury had been ordered ; two of the special jurymen wore not summoned. The court refused a new trial, declaring there was “ no direct authority on the .point,” and sustained.the verdict found by the ten special jurymen and two talesmen. This case in no way affects the point made by Dubord. The attorney general next refers to the case of Hill v. Yates, 12 East. 229, and to the case of the juryman in the note, .in which case, he sa.ys, the record was right; but after the facts had been shown upon a motion for a new trial, the error might have been assigned. Hillv. ‘Yates, is a civil case; besides, the record was there right. In the case of the juryman, 12 East. 231, the man who served on the jury had been duly summoned, though by a wrong name, and he was also proved to .be duly qualified to serve. But there is no proof in the present case, that either of the five persons who served as -jurors, and who are objected to by Dubord, had any of the qualifications of jurors. Besides, there is not a tittle of evidence to prove that these five persons were ever summoned. Moreover, the record in the case of the juryman was right, and no amendment was necessary. But here the record shows error on its face; shows a variance in the names of the jurors ; and shows that the persons who tried the cause were not the same persons sworn and summoned. The-case of Hillv. Yates, has been reviewed in The Kingv. Tremaine, already cited by me ; and the reasoning on which it was decided, has been answered by C. J. Abbott.

      The attorney general refers to The State v. O'Driscoll, 2 Bay, 153, and to the case of The State v. Kennedy, decided by our late Court of Errors incriminal cases. 8 Rob. 590. Both these decisions were correct. They simply decide that if an alien is drawn and summoned as a juror, and is returned as such, and his name appears .on the jury list furnished to the accused according to law, it is a good ground of challenge before trial; but tliat it is too late after trial and conviction, to make it a ground for a new trial. This is very different from the case, where a person, who has not been drawn and summoned, acts as a juror.
    In King v. Tremaine, already cited, Abbott, C. J., said; “ I do not see how a challenge, properly so called, could have been taken to this person, he not having been summoned as a juror. If he had been returned on the panel, then a challenge would have been the proper mode of objecting to him. 7 Dowl. & Ryland, 684, decided in 1826. Bay ley, J., said : “He has not been summoned or returned on the panel. I apprehend that one of the objects of taking jurors jurors fr.om the panel is, that notice may be given to the parties before the jurors come to the assizes, so as they may know to whom to direct their challenges.” Bayley, J., then refers to cases in which it was held that if one man be returned in the venire facias, and a different man in the distringas, who serves as the juror, it is error. . Littledale, J., said: “It is admitted on all .sides, that if a person is “returned on the panel, who is incompetent to servo .on the jury, it is a cause of challenge: but in this case the young man was not returned upon the panel, nor was he summoned. He was, therefore, no juror at all-” So in Norman v. Beamont, Willes R. 487, Lord C. J. Willes, said: “We were of opinion that this could be no cause of challenge. There was no .objection to Richard Gealer, the person returned. But this was an extrinsic .objection not appearing on the face of the poll. A challenge to a juryman, supposes him capable of serving on the jury, if the objection be answered. But Richard Shepherd was no juryman at all.” He was neither summoned nor returned on the panel. It was held, therefore, that this was not matter of challenge, and could be taken advantage of after verdict. The remarks already made, furnish a full answer to the cases of Amherst v. Healey, 1 Pick. 38, and Howland v. Gifford, I Pick. 43.
    The .attorney general refers to the case of Dovey v. Hobson. C, J. Gibbes, treated in that case the decision in Hill and Yates with much deference; but ¡he set aside the verdict in favor of Dovey, because a person not summoned on .the jury had been sworn and acted as juror in the name of the party summoned, The rest of the court concurred. The Chief Justice said —“Willes, C. J„ with hjs usual precision, states the four ways in which questions of this soit .can be brought before the .court; By motion in arrest of judgment; by motion for an amendment; by motion for a new trial; or by writ of error in a superior court. * *’■' tie shows clearly that there would be a variance between the venire process and the record, on which judgment for the plaintiff might be .arrested for the variance, and the question was whether a new trial should be granted- Here no amendment is necessary : ¡is the record now stands, no motion in arrest of judgment can be made, nor can the objection be taken on a writ of error. Here eyery thing is regular on the record, and can be rectified .only on a motion for a new trial. That is discretionary with the court, &c.” This decision was rendered in 1816, ten years prior to that.of Rexv. Tremaine, and appears to me, in a good measure, to support the motion in arrest of judgment, now under consideration..
    A clear proof of what the law upon this subject was in England, is to be found in the 21,st section of st. Geo. 4, c. 24, which was passed to remedy certain .evils and imperfections in the criminal law. This remedial statute, enacted : “That no judgment after verdict upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed for want of a similiter, nor by reason that tho jury process has been awarded to a wrong officer, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer.” Arch. ,C. PI. App. XVI. A similar statute was found necessary in New York. “ When a verdict shall have •been rendered many case the judgment therein shall not be stayed, &c., or reversed, impaired, or in any way affected by reason of a mistake in the name of .any juror or officer.” 2 R. S. N. Y. 425, s. 7, 11. And should a question arise upon a defect of this kind, It is further provided that the “ defects and variances” of the like naturo, not being against the .right and justice of the suit or trial, shall be supplied and amended by the court, &c. 2 R. S. 425, s. 8. In Massachusetts, it is provided by statute that “ no irregularity in any writ of venire facias or in the drawing, summoning, returning or empannelling of jurors, shall be sufficient to set aside a verdict, unless the party was injured by the irregularity, or unless the objection was made before the returning of the verdict.” Rev. Stat. Mass. Similar statutes have been passed by other States of the Union.
    The attorney general cites the case of Horry v. State, 3 Har. and John, 2, where a motion was made to arrest judgment on the ground, that there was a “ variance between the venire for the petit jury, and the names of the jury empanelled to try the cause, and who found the verdict.” The court refused to arrest the judgment. Not a word is said as to the grounds of the decision. No case, no law, no fact is stated. The motion is stated, and the reporters simply add : “ The motion was over-ruled. Although I find a statute passed in 1795, to remedy such a variance in civil cases, in Maryland, I have not been able to find any legislative provision on the subject in criminal cases. I leave this case, therefore, to be weighed by this court, against the arguments and authorities which I have brought forward.
   The judgment of the court was pronounced by

King, J.

The defendant was prosecuted under the 3d section of the act of 1819, (Acts p. 62-3) whieh is in the following words: “All and every person or persons who shall inveigle, steal, or carry away any negro, or other slave or slaves, or shall hire, aid, or counsel any person or persons, to inveigle, steal, or carry away as aforesaid any such slave, so as the owners of such slave of slaves shall be deprived of the use, &c., on conviction of any such offence, shall suffer imprisonment at hard labor, &c.” The defendant was convicted, and after ineffectual motions for a new trial, and in arrest of judgment, appealed.

It is .contended: 1st. That the indictment is defective, because it contains no allegation of the value of the slave, and because it does not contain the technical words essential to the description of the offence. 2d. That the verdict should be set aside, because several of the persons who were sworn and acted as jurors on the trial, were not the same persons drawn and summoned to serve as jurors.

I. To the first objection it would probably be a sufficient answer to say that, the statute declares several offences, among which are: 1st, stealing; 2d, inveigling; 3d, carrying away a slave. Each of these is a substantive offence. All of them haye been charged upon the defendant, and a general verdict of guilty has been found by the jury. No objection has been made to the sufficiency of the indictment, as regards the two offences last enumerated. Thus, if the ground be well taken that the stealing of a slave under this statute is strictly larceny, and that it is indispensable in indictments for larceny to aver the value .of the thing stated, and to use the technical terms essential in the description of that offence, there still remains a eonviction for inveigling, and for carrying away, each of which under the statute is an offence equally as grave as the stealing, and visited with the same punishment.

But we think that, even with regard to the stealing of a slaye, the statute has declared a new offence, distinct from larceny; and that it is not necessary, in indictments under it, to aver the value of the slave, nor to use the technical terms descriptive of larceny. The indictment must be governed by the rules applicable to offences declared by statute. Foster, Crown Cases, p. 423, says: “ It may, I think, be laid down as a general rule, that indictments .■grounded on pemil statutes, -especially the most-penal, must pursue the statute, .so as to bring the party .precisely -within it; and this .-rule holds as well with re,gard to statutes which take away clergy from felonies at common law, as to statutes creating new felonies. “ The indictment,” saith Stanford, “ must set forth ,the offence in suc'h .manner as lit -is expressed in the statute, otherwise the 'offender -shall have his clergy.” And,again,,p. 424.: “ Indictments upon penal .statutes must strictly pursue .the statute.” See also 2 Hale, 170. Hawkins, ib. 2, chap. 25, sec. 113. 1 Chitty’s C. L., 286, 287. In the present instance ithe offence could not well have been charged with nmro.precision and certainty, ¡than by using the words of the statute itself.

II. Among the ¡jurors -summoned, a list of -whom ¡was --furnished to the itc.cused, the following names-.appeared, viz: J. M. Otto, J. Golding, L. N. Johan, J. W. Robb, J. F. Krabbe. Among the jurors ¡who were sworn, and tried the cause, were the following, viz : J. N. Otto, S. Golding, L. N. Jahan, J. Robb, and J. L, Krabbe. It-is contended that-these variances in the names are material, and .vitiate .the verdict. No .objection ¡was made to -the jurors, v/hen they were .offered to the prisoner or .the .trial. The court is unanimously of opinion that the .objection .now comes too late, and .that ,if the .accused de.sired .to .oppose the swearing o,f the jurors .on this ground, .he should have .made his objection .when they were presented. The law has .carefully .proteoted his rights in this .respect, .and furnished him svith every facility for making such objections as he may have to urge to jurors. He can complain neither of surprise,nor injustice^ Hehad iu.his .possession, for,two days prev.ious.to the trial, .a list of the jurors who were to be presented to him. When J. N. Otto, was presented, .a reference -to the list, furnished -expressly for the .-purpose of enabling him .to make his challenges, must have shown him -that J. M. Otto was the person whom he had the right to insist -on having .presented. He had the right before exercising his challenge to .enquire whether .the juror offered was the juror summoned, and if it appeared .that he was not, to insist .that he be set .aside. No objection was made to the persons in question, on this or other grounds, and no right secured bylaw .to .the prisoner was denied to him on the trial. Not only was objection to the jurors-waived, hut the r.eoord shows that they were expressly accepted by the prisoner.

In.the.case of Hill v. Yates, 12 East, 230, a similar question was presented. Lord Ellenbourgh .then said., if thejudges “were to listen .to such an objection, .they might set aside half the verdicts given .at every assizes, when the same thing might happen from accident .and inadvertence, and possibly sometimes from design, .especially in criminal cases.” The case of the King v. Tremaine, 16 Com. Law Rep. 319, does not .appear to us to overrule .the .case ,of Hill v. Yates. In the former it was shown that the person sworn as a juror was a minor, .and absolutely incompetent to serve. The court said that .the verdict was the verdict of eleven jurors, and distinguished tire .case from that of Hill v. Yates, in which the jur.or appeared ,to haye possessed the .necessary qualifications. Sec. 2 Bay’s Rep. 155. 2 Nott & McCord, 264. 1 Chitty, Criminal Pleading, 545. 3 Harris & Johnson’s Rep. 2.

Judgment ajjinned.

       Eusris C. J., absent.

        R Hunt, for a re-hearing: It has been intimated by the court, that no writ, no order in writing from .the judge, was necessary in directing the jury to be summoned; and that when the law directs the jury to be drawn under the direction of the court, it means in the presence and under the superintendence of the judge, without any order from him. This is at war with the spirit and letter of ourstatutes. The order ought therefore to have been under seal; and for want of the soal of the court, the process was erroneous; arid the' proceedings under it are voidi See the case of The People v. McKay, 18 Johns. Rep. 212, and The State v. Dozier, 2 Spear’s Rep. 216. In the latter case the court say, per O’Neall, J: “ In this case,, it is only necessary to consider the prisoner’s third ground, in-arrest of judgment, for that will avail him; In 2d Hale’s Pleas of the Crown) 160; it is said, “ the venire facias,- as all other process of that court, (the King’s Bench,)’issues in the King’s name, under the seal of the court, and that- of the chief justice, and always-ought to bear test after the issue joined between the King and the prisoner.-” The descrip-tion of process to- compel the attendance of jurors; in 2d Hawk, P. €, book 2, chap. 41, sec. 1, is very much like the course of our own practice in relation to the venire.- He says: “ It is agreed that justices of jail delivery may have a pannel so returned by the' sheriff, without any precept or- writ; and the reason given- for it is, that, before their coming, they always make a general precept to the' sheriff on parchment, under their seals, to-bring before them, at the day of thoir sessions, twenty-four out of every hundred) &c,, ‘ to' do those things which shall be enjoined them on1 tho part' of the' king,’ &c.- This is'a general venire for the term, and is so- far like ours, and- is only different,-that it has no-panel annexed; and ours,- according, to jury law,- has. It is to- be observed, that- this general precept is under the seals of tho justices, and without that would be bad. The argument is, therefore, irresistible,- even from- this authority, which is more favorable t-o the State than any other, that a summons of the jury by virtue of a pretended'writ of venire, not under seal, cannot be good; What efffect the want of a venire not undfer seal, for bbth the-grand and- petit jury, upon the trial of a prisoner convicted of a capital felony,-would have, the case of The People v. McKay, 18 J. R. 112, is full to the point, that it is a good ground to- arrest the judgment!’
      Iu the case of the State v Williams’, since decided in South Carolina, where the accused was convicted of murder, and- in four other cases at the same term, judgment was arrested- upon- the- same ground, on the authority of the previous case' of Dozier.

      The practice of our courts is also- entitled to consideration. I have enquired of the clerks-of the Third, the Fourth, and- the Fifth District Courts, and I find- that writs of venire’ have always beon issued by those courts, and by the former District-, Parish, and Commercial Courts of New Orleans, when a jury was summoned to try a cause. The minutes of the First District Court of New Orleans, also show, that undfer Judges Preston and Canonge — (I have not examined'further) — a venire' was always ordered by the court, for drawing and summoning a jury. The courts havo' called these orders by the' name of venirer The statute of 1831,-expressly styles the order-a venire.- Judge McHenry, in-his orders, uses the word venire. They answer exactly to what Judge O’Neal terms “a-general venire for the term.” Stylo it writ or order, still it must be under seal; and there' is no seal to- the- venires in-this case. Unless the law is observed in-drawing, and summon-ing. jurors, the right to a trial by an impartial jury is gone.
      2'd. Iu order to secure to- the accused a trial by an' impartial jbry, the law has not only dbfined tho qualifications of jurors; and' prescribed the mode of drawing, and summoning thorn- under' orders of the court; but it- has explicitly declared, that he shall be tried by the jurors so1 drawn, and by none others. The 35th section of the act of 1805,says: “ Every person who-shall be accused and-indicted for any crime punishable with imprisonment at hard labor for life, or for seven years or upwards, shall have a copy of the indictment and1 list- of- the-jury who are to pass on his trial,-delivered unto him, at least two entire days hoforo he shall be tried for the same.” Bul. & Cur. 248.
      When the legislature says, the accused shall have a- list of the jurors who are to pass-on his trial delivered to him, it means-that the jurors who are to pass upon his trial shall-be upoip the list delivered to him; it means that he shall be tried by tho jurors upon the list, and no other jurors. It means that, or it means nothing. The record shows, that a list of jurors drawn and summoned1, and who, by law, were t'o pass upon Dnbord’s trial, was dfelivered to him'; and that five persons who were not drawn and summoned, and whose names were noton-theJist of the' jurors delivered to Dubord in conformity with- law, did, notwithstanding, act as jurors in the case, and did pass upon his trial, in direct and palpable violation of law. The court says, that “ this-objection comes too late,” I contend that tho objection-is never too late, when it appears patent on the record that the law has been violated. This is-the doctrine to-be collected from the cases cited in argnmont at p. 739-.
      It is said the appellant ought to have challenged the jurors who were not on the list, and that tho objection comes too late, and the cases from 2 Bay, 155, and 2 Nott & McCord, 264, are relied on in support of this. The answer is at hand: Whenever a person is drawn and summoned as a juror, and his name is on the list served' on the- defendant, it is his duty, if he wish to object to him, to exercise the right to challenge, at the time the juror is offered; because the juror having been drawn and summoned, if the challenge is overruled, the party would be a good juror on the record. But where a person has not been drawn and summoned, and his name is not on the list of jurors, who are to pass on his trial, he cannot be a juror without a violation of law. See the cases of Norman v. Beamont, and The King v. Tremaine, cited in argument for the appellant. In the cases from Bay, and from Nott & McCord, the juror objected to was duly summoned and sworn, and therefore might have been ehallonged, and consequently the objection camo too lato. But in the present case the persons objected to were not drawn, summoned, or returned, and were not on the panel or list delivered to the defendant; they were, therefore, no jurymen at all, and no challenge, properly and technically speaking, could have been taken to them — since, in no event could they bo good jurors. The defendant is, therefore, entitled to the benefit of his objection after verdict. Rehearing refused.