text:
    B. F. Ammonette, v. J. L. Crandell, Sheriff.
    A Sheriff is not liable for the amount of the* writ of execution in his hands, who refuses to seize negroes the title to whom is in another, in a form recognized as valid by law, where it does not appear that he had reason to believe that the title was simulated. .
    Titles which the law has required to be in writing, and which when recorded are notice to'all the world, are oFsufficient dignity to justify the Sheriff in refusing .to treat them as nullities, in the absence of sufficient circumstances to indicate to hi.n their simulation; possession by the debtor in execution, in itself, is not a sufficient circumstance.
    from the District Court of the parish of Madison, Perkins, J.

      Stockton £ Steele, for plaintiff and appellant,
    cited Act 7th, April 182(5, p. 17; 2 "An. 408, 411; 8 An. 77.

      Stacy £ Sparrow, for defendant:
    If property belongs to the defendant in execution, and the Sheriff, knowing this, fails or refuses to seize it, he is liable to the plaintiff for all damages that he may suffer from such refusal or neglect. 5 Louisiana Reports, p. 344, Bottom. v. Breed.

    Second. That the Sheriff cannot be protected by an indemnifying bond given by the plaintiff, for making an illegal seizure, that the contract under which, in consequence of the bond given, the Sheriff should make such seizure would be illegal, and that the latter could maintain no action against him upon it. 3r. turpi causa non. oritor actio. 8 Rob. Rep. pp. 112 and 115; 4 An Rep., p.201. • ’
    Third. That if a Sheriff seizes the property of a third person, to satisfy a judgment against the defendant, he commits a trespass and is liable for all damages suffered even when he has acted in good faith, and that ho is not protected by proving that he has acted according to the best of his knowledge, when he has seized the property of another. But that he is bound actually to know that the property seized belongs to the debtor. 2 N. S., 24, Beliah v. Morgan. 5 N. S., 500, Garraley v. Morgan. 6 N. S., 581, Seet v. Morgan. 5 L. R., 39, Croaker v. Be Ptman. 1 R. R., 7(5, Barney v. Bellussey. 4 Rob. Rep., 39, Buperru v. Van Wiekle.

   Ogden, J.

Silas Lillardfm 1840, obtained a judgment against David Stans-burgh, for $4057 09, with eight per cent interest from the 3d of July, 1837. This judgment was transferred to Bobert Slaughter, and the plaintiff, as curator of Slaughter's succession, instituted the present suit to recover the amount of the judgment from the Sheriff of Madison and his official sureties, on the ground of misfeasance and neglect of duty on the part of the Sheriff in relation to the execution of two writs of fieri faaias which had been issued on the judgment.

The acts of misfeasance charged are :

First. That the Sheriff made a false return of an execution issued in July 1852, stating that no property belonging to the defendant could he found.

Second. That he failed to execute an alias writ of fi.fa. which was issued in September following, notwithstanding the plaintiff had pointed out to him and directed the seizure of certain slaves and cotton, in the possession of the debtor in the execution of sufficient value to satisfy the judgment.

The Sheriff has set up a special defence, alleging that from the titles to the property as recorded, and from facts of general notoriety, he had every reason to believe the property pointed out to him for seizure belonged to Jesse Stans-burgh, and that he would have committed a trespass by seizing it as the property of the judgment debtor.

The first point made for the appellant, who is the plaintiff in the cause, is that the Sheriff is liable under the Act of the Legislature of 1826. The duties imposed on the Sheriff by the 17th section of that Act, in default of which, he becomes liable for the amount of the writ placed in his hands, are that he shall return the writ on or before the return day mentioned in the writ, and that he shall pay over the moneys received thereon to the party entitled to it. The Sheriff is not charged with any such breach of official duty in this case, and the Statute is not applicable. The misfeasance with which the Sheriff is charged, is that of having made a false return and having refused to seize the property which had been pointed out to him as belonging to the debtor. The return is not shown to be false. The Sheriff has assigned his reasons for not seizing the property, and if the plaintiff has established satisfactorily that the property did belong to the debtor in the execution, the Sheriff is responsible in damages unless the reasons assigned for not seizing it furnish a legal justification. The property he was required to seize consisted of thirteen slaves and a crop of cotton. The title'to slaves is required to be in writing. The plaintiff has not produced any written evidence of title to the slaves in David Stans-burgh. The defendant has shown that the titles as of record, stand in the name of Jesse Stansburgh, and that all of them except three were derived by a Notarial act of sale, made in 1837, from David to his brother Jesse Stansburgh. It is contended however, that the titles made to Jesse Stansburgh, are mere simulations, and we are asked to consider the case as if in the language of the brief of the plaintiff’s counsel, these matters had been regularly brought up by formal issues between the real parties,. Jesse Stansburgh claiming the property as his own on the one side; and on the other the plaintiff claiming that it belongs to David Stansburgh, and that it is therefore subject to his execution. This We are not permitted to do, Jesse Stansburgh is not a party to the suit, he was not cited and has not voluntarily appeared in the cause, nor does the petition ask for a judgment against him. As the only titles to the negroes exist in the name of Jesse Stansburgh. and those titles &tg made in a form recognized as valid by law, and under the circumstances, it does not appear the Sheriff had reason to believe they were simulations, the justification to the Sheriff for not seizing them is complete.

An examination of the evidence and a deliberation on the argument presented as to the question of simulation, would lead to no practical result, because, if our conclusion should bo' that the titles, of Jem Stansburgh were simulated, and could render no judgment against him as he is not a party to the suit, and it is immaterial to the defence sot up the Sheriff whether those titles are held to be real or ficticious. The plaintiff's counsel contends that it was the duty of the Sheriff to have seized the property without regard to the paper titles or record, because the defendant was in open and notorious possession of the property, and he cites the case of Bennett, Tutrix, v. Stains, Sheriff, 8th An., to sustain him in that position. We do not understand that decision as sanctioning such a doctrine. Titles which the law has required to be in writing, and which when recorded, are notice to all the world are of sufficient dignity to justify the Sheriff in refusing to treat them as nullities in the absence of sufficient circumstances to indicate to him their simulation. He may at his own peril make a seizure of property in the possession of the debtor in the execution, disregarding the paper title of a third party, but he is not bound to take upon himself the responsibility of deciding whether an adverse title set up by a third person in a form recognized by law as valid, be real or ficticious. If the Sheriff under such circumstance, is not willing to assume the responsibility of making a seizure, the plaintiff must have recourse to his action against the adverse claimant, to have the title opposed to him annulled. In the present case, the Sheriff had very strong.reasons to decline such a responsibility. A previous execution had been taken out on this same judgment, and two of the negroes embraced in the sale from David to Jesse Stansburgh had been seized under it. Jesse Stansburgh enjoined the execution, and after a trial on the merits, his injunction was sustained. This was a matter of record, and if the Sheriff had made the seizure in face of Jesse Stansburgh's recorded titles, and of this successful vindication of them, he could scarcely have been viewed in any other light than that of a trespasser.

We do not consider the fact of his having taken a bond from Jesse Stans-burgh to indemnify him for not making the seizure as in any manner affecting the legal relations or rights of the parties.

The cotton which was pointed out for seizure, was raised on a plantation called Oakdale, of which it is shown by the evidence Jesse Stansburgh had the management and control, and on which these negroes were employed. It is not shown that David Stansburgh had any title to the land or to any negroes on the plantation, and the plaintiff has therefore failed to establish that the cotton raised on the place and which -was claimed by Jesse Stansburgh, was liable to seizure for the debts of David, Stansburgh.

The case ;recentiy decided óf Dwüagi v. Freret, has been invoked as an authority in favor of the plaintiff. The case has no bearing on the questions involved in this suit. In that case the Sheriff had made an actual seizure, and afterwards released it; by doing so, he took upon himself the burden of proving that the property did not belong to the debtor.

The plaintiff in this case, has failed to show any other title than that of possession to any of the property pointed out to the Sheriff for seizure, and it is not therefore necessary to consider the question which was raised in argument as to the identity of some of the negroes with those mentioned of the same name in the titles of Jesse Stansburgh.

We are of opinion there is no error in the judgment appealed from, and it is therefore affirmed with costs.


source: Caselaw Access Project

author: Spoffobd, J.

license: Public Domain

text:
    F. H. McManus v. J. Stevens.
    in real actions, petitory or possessory, a definite description of the property claimed should be given in the petition.
    The designation of “a tractofland in a given parish” is insufficient; public metes and bounds by section lines, by Surveyors’ marks, by natural limits, or adjoining properties, whose boundaries are registered, should be given when the ownership or possession of a rural estate is claimed in a court
    The proceedings and judgments taken together should disclose the thing adjudged.
    from the District Court of the parish of East Feliciana, Merrick, J.

      Me Vea, for plaintiff.

      Muse & Hardee, for defendant and appellant.
   Spoffobd, J.

The court erred in overruling the defendants motion to dissolve the injunction, and in refusing to dismiss the petition on the exceptions taken to its sufficiency.

In real actions, whether petitory or possessory, a definite legal description of the property claimed should be given, so that courts may know what they are called upon to decide, and the world may know what they have decided.

This purports to be a possessory action ; the plaintiff says he has, since 1842, been in possession, as owner of “ a certain tract of land in the parish of East Feliciana,” which he had under fence, and that the defendant within the year before suit brought, has disturbed him in his possession, by “ entering on said land, pulling down the fence on the south-east corner, and moving it further back, thereby throwing out about six or seven acres of said land.” On affidavit that these facts were true, he procured an injunction restraining the defendant “ from using or cultivating any portion of a certain tract of land in said parish of which the plaintiff claims to have been the possessor and owner since the year 1842.”

This is all the description we have of the premises, in the pleadings:

“ A tract of land in the parish of East Feliciana,” cannot be taken from A. and given to B. by the judgment of a court of record, without something of record by which to identify it. A designation by public metes and bounds, by section lines, by surveyor’s marks, by natural limits, or by adjoining properties, whose boundaries are registered, should be given when the possession or ownership of rural estate is demanded in a court of law.

In the recent case of Avery v. Orrillon, an injunction was dissolved for a less degree of vagueness in the description of land than is exhibited here. (Ante p. —. )

In the case of Williams v. Kelso, 7, L. R, 406, the cause was remanded for a similar uncertainty, although the defendant there had answered to the merits without excepting to the petition. The remarks of the court in that case are quite apposite to this.

The District Judge seems to have perceived the embarrassment occasioned by his having overruled the defendant’s exception, when he came to draw up a decree, and he sought to remedy it by ordering the plaintiff to be put in possession of “ the land in controversy, up to the time certified to by John F. McKnecly and John Hast." Now, McKneely and East were mere witnesses in the cause, not experts or surveyors. Their testimony in this record, does not make the limits of the plaintiff’s claim any plainer than his petition. Is the Sheriff to take them along with him when he executes his writ of possession ? Suppose they forget or differ as to where the old fence stood, a supposition not at all impossible when we examine their testimony, who then is to counsel the Sheriff?

It is a fatal error to leave these things to be determined after judgment. The pleading and judgment taken together, should disclose with certainty the thing adjudged, that litigation may have an end.

It is therefore ordered, that the judgment of the District Court be avoided and reversed, the injunction herein granted dissolved, the exceptions to the petition on account of its vagueness sustained, and the suit dismissed, the plaintiff and appellee paying costs in both courts.


author: Slidell, C. J.

text:
    E. H. Angamar v. New Orleans Insurance Company.
    A supplemental answer averring an inability to do, by reason of the act of the plaintiff, what the original answer had declared to have been done in fulfillment of a contract, changed the issue, and an exception thereto should have been sustained.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Sage, for plaintiff and appellant.

      Benjamin & Mieou, for defendant. T. L. Bayne, for warrantor.
   Slidell, C. J.

The defendant gave the plaintiff a fire policy on his “ sugar house and purgery,” “ with the steam-engine, machinery and all apparatus thereof, ” for $13,000. The property having been destroyed by fire, the defendant’s availed themselves of the condition of the policy, giving them the privilege of rebuilding and replacing. They made a contract with Belson for rebuilding the sugarhouse and purgery for $3,750, and with Leeds & Go. for repairing the engine &c. for $2,600, these sums have been paid by the defendants to those parties respectively, but without plaintiff’s sanction as to Belson. Plaintiff acknowledges satisfactory indemity for the steam-engine, but claims in his petition the balance of the Insurance over the amount paid for replacing the steam-engine. His allegations were as follows :

11 So far as the sugarhouse and the necessary appurtenances thereof are concerned, the said Insurance Company have not in any manner complied with their contract either by paying the loss in money, or by rebuilding or replacing the said sugarhouse and fixtures; but the said company has merely pretended to comply with their obligation to indemnify your petitioner for the loss of bis sugarhouse &c., by sending an agent or contractor to rebuild or replace it; and that the said contractor acting for and under the authority of the company, provided and used timber and all the materials for the building far inferior to those of the former building both in size and quality; and furthermore, that the structure and workmanship of said building and all its parts and appurtenances are in plain violation of the principles of architecture and mechanical skill, and moreover, that the said building from the vices and defects of its structure, and from the incompleteness is totally useless to your petitioner for all the purposes of a sugarhouse.

The defendants filed an answer in which they admit the execution of tlio policy, the burning of the sugarhouse, “ and the defendants undertook to rebuild the property destroyed, all as stated in the petition, but deny the oilier allegations of the petition,” and specially plead and aver that they have fully and fairly complied with the obligations imposed by said contract; that they have rebuilt the sugarhouse at the place indicated by the plaintiff, and that the new sugarhouse erected by them, is in every respect superior and of greater value than that which was destroyed.”

Several months after this answer was filed, and after testimony had been taken under commission, which, probably, alarmed the defendant’s as to the sufficiency of their defence, they filed an amended answer shifting their ground. They allege that the plaintiff had agreed with Belson (the person employed by the company to rebuild) to change the sites and plan of the building, dispensing with parts of the old building and making additions. That by making-such new arrangements with Belson, and such changes, the plaintiff rendered it “ impossible for defendant’s to rebuild the sugarhouse in the precise manner with the old one, and released defendants from any further liability arising out of the manner in which the new building was erected.”

We think the court below erred in refusing to set aside this supplemental answer upon the exceptions filed by the plaintiff, or at least in permitting it to stand unqualifiedly. It contained no suggestion that the new matters alleged had come to the knowledge of the defendant since the filing of their answer, and the records furnishes abundant evidence that the defendants were fully cognizant of them even before the suit was brought. Nay, more, it is conclusively shown that so far as the change of site was concerned, they had waived any objections on that score. The new ground of defence, so far at least as it is offered in absolute bar of the action, is inadmissable, and can only be considered so far as it may- be equitably invoked to relieve the defendants from responsibility for any defects in the materials or workmanship of so much of the new building as was not embraced in the plan of the old building.

Under the original petition and answer, we think the position of the parties was such, that upon proof by the plaintiff of the value of the old building and equipments as “a sugarhouse and purgery,” the burden was upon the defendants to show that the building erected by Belson under their employment was, extra work excluded, as good as the sugarhouse and purgery destroyed by the fire. This the defendants have not satisfactorily proved. The matter stands thus. The plaintiff has shown his loss, and the defendants have not shown, as they undertook by their answer to do, that the building erected by their employee was a just and fair indemnity.

We are of opinion that under the evidence, the building as reconstructed, may, by reason of its inferiority of materials and workmanship, be considered as falling short of a just indemnity by an amount of $2,500. If there be un. certainty about the exact amount, it must be recollected that, under the pleadings, the burden was upon the defendants to show that the new building was a just indemnity, after the plaintiff had shown the reasonable value of the property destroyed ; and it must also be borne in mind that the defendant has contributed to this uncertainty, by resisting the application made by the plaintiff for the appointment of experts.

After the cause had run a long time at issue, and much of the testimony upon which it was subsequently tried, had been taken, Belson and his surety Davidson -were called in warranty by the defendants. It appears that the company had paid Bebón the amount stipulated for restoring the building, but without exacting from him a certificate of approval by Angamar, as called for by the contract Considering the manner in which the defence has been conducted, and the cause tried, we do not think the defendants entitled now to judgment even against the warrantor.

It is therefore decreed that the judgment of the District Court be reversed, that the plaintiff shall recover of the defendants the New Orleans Insurance Company, the sum of $2,800, in full satisfaction of all outstanding claims of the plaintiff upon the policy of insurance, with costs in both courts. And as between the defendants and the warrantor and surety, Belson and Davidson, it is ordered that the call in warranty be dismissed as in case of nonsuit, and that the defendants pay the costs thoreof.


author: Voobiiies, J.

text:
    H. Lucas v. R. L. Bell et al.
    A certificate that the record contains “all the testimony on file and of record adduced on the trial,” is not sufficient to enable the appellate court to reverse the judgment, in the absence of a statement of facts, bill of exceptions, or assignment of errors apparent on the face of the record.
    The Judge cannot be required to make a statement of facts at a subsequent term of the court when his recollection no longer enables him to do it.
    from the District Court of the Parish of East Feliciana, Sterling J.

      Neman, for Gurney, administrator.

      Bowman & Dellee, for defendant and appellant.
   Voobiiies, J.

This appeal is taken by NcElvee, against whom, as warrantor, a judgment was rendered in the court below in favor of Gurney, administrator of Pettes’ estate, one of the defendants.

The warrantor made no appearance in the court below, and a judgment by default was made final against him on the 12th of August, 1853. At a sub sequent term of the court, he applied to the Judge to make a statement of facts to enable him .to prosecute an appeal, having first presented a petition and caused the plaintiff and defendants to be cited, to show cause why they should not jointly prepare a statement of facts, or in the event of their not being able to agree upon one, why it should not be made by the Judge. The Judge declared his-inability after such a lapse of time, to remember what evidence was offered upon the trial, and this appeal now comes before us without any statement of -facts that the record contains “ all the testimony on file and of record adduced on the trial.” This is not such a certificate as the law requires to enable the appellate court to reverse the judgment appealed from, when the appeal comes up without statement of facts, bill of exceptions, or assignment of errors apparent on the face %f the record. The evidence in a cause need not be taken down in writing unless it is required by one of the parties, and the Judge cannot be required to make a statement of facts at a subsequent term of the court, when his recollection no longer enables him to do it.

It is therefore ordered that the appeal be dismissed at the costs of the appellant.


author: Voorhies, J.

text:
    Fellows v. Jeter.
    A power of attorney acknowledged in the presence of two witnesses, before a Louisiana Commissioner, appointed by the Governor to' exercise his office in another State, is an authentic act, and may be properly annexed by a Notary, to an Act passed before him by the agent, as evidence of his authority. A copy of the Act thus executed, duly certified, is authentic proof and may serve as evidence to authorize the issning of an order of seizure and sale.
    from the Fourth District Court of the Parish of New Orleans,

      Reynolds, J. Mott & Fraser, for plaintiff.

      Steele and W. D. Hennen, for defendants and appellants:
    The ac.t was not signed by Tinsley Jeter. The power of attorney to John T. Jeter was not an authentic act.
    See Livingston v. Rich, 1 An. R. 823; C. C, 2217. In the case of Livingston v. JDiah, the act of mortgage was signed by the parties and by two witnesses, in the presence of the Notary, and yet the court held that it was not authentic. It was signed like this is.
    The copy of an act, signed before a Commissioner, is not and was never considered to be admissible, as evidence of anything. Nothing is by law made admissible as evidence but the original. See 4th section of Act of 1840, B. & C. 165.
    The court should have had an opportunity to examine the seal and signature of the Commissioner. Sec Act 1838, sec. 2. B. & C. 164 • and 4th sec. of Act of 1840, B. & C. 165. This is their only means of judging of the genuineness of an Act.
    In the case of Commercial Bank v. South, 7 An. R. 128, where an Art was executed before William L. Poindexter, a Notary Public in Concordia, and the original was taken by the parties and deposited in the office of H. Cenas, and a copy certified by Cenas was offered in evidence, the court held that he was not the legal custodian of the Act and could not give a copy ; so here we hold that Mr. Robert is not the custodian of the power of attorney from Tinsley Jeter to John J. Jeter, and a copy from him is no more admissible as evidence than if made by any other man; it is not authentic.
   Voorhies, J.

This is an appeal from an order of seizure and sale. One of the grounds assigned, as error apparent on the face of the record, for the reversal of the order is, that the power of attorney from the vendee to John J. Jeter was not by authentic act. ,

Tinsley Jeter, represented by John J. Jeter, as his Attorney in fact, purchased of the plaintiff, also represented by au Attorney in fact, certain lots of ground situated in the city of New Orleans. The notarial deed of sale between the parties recited that John J. Jeter is the Agent and Attorney in fact of the vendee, by virtue of a procuration annexed to and made a part thereof. One of the promissory notes signed by John J. Jeter, as agent of Tinsley Jeter, given as a part of the price of the property thus conveyed, and duly identified by the Notary with the act of sale, and a copy of the conveyance, together with a copy of the power of attorney thereto annexed, constituted all the evidence on which the Judge a quo granted the order of seizure and sale. On the allegation that the defendant was a resident of Philadelphia, a curator ad hoc was appointed to represent him, at the instance of the plaintiff.

The power of attorney in question purports to have been signed by Tinsley Jeter in presence of two witnesses, and acknowledged before Wm. Henry Rawle, Commissioner, to take acknowledgments of deeds, &c., in the State of Pennsylvania, for the State of Louisiana..

The Act of the 24th of March, 1840, confers upon such Commissioner the power “to take the acknowledgment and proof of the execution of any instruments of writing for the sale, transfer or assignment of any property movable or immovable, rights and debts; and also any power of attorney to he used or proved in this State before any court of justice or public officer. It declares that “ every attestation or authentication made by such Commissioner, when . duly certified by him in the manner prescribed, &c., shall be good and available in law, and shall be received as proof as if taken or made before a competent officer of this State.” Having full authority under this Statute to receive such acts as authentic, we think the Notary in this instance very properly annexed the power of attorney to the act of sale as proof of the answer ; and being thus annexed, it follows that this authentic original, became a part of the archives of his office; and consequently certified copies therefrom under his official seal must be considered as authentic. The cases relied on by the defendant are clearly distinguishable from the present. In Tilden v. Dees, 1. R. 408, it appeared that the proces Hierbal of adjudication purported to have been signed by Gray as the attorney in fact of Tilden, and no power of attorney had been exhibited either to the Probate Judge who made the sale, or to the District Judge who had issued the order of seizure and sale. In the Commercial Bank v. Routh, 7 A. 128, the act was executed before a Notary in Concordia, and the original taken by the parties and deposited in the office of another Notary, whose certified copy was offered in evidence and rejected; it was held, under the textual provisions of the Civil Code, art. 2247, that copies not certified by the Notary before whom the acts were passed, or by a power who was the legal custodian of them, or authorized by law to give copies were inadmissable in evidence.

It is unnecessary to notice the other ground of error assigned as it has not been insisted upon in the oral argument of the defendant’s counsel, and is besides clearty untenable.

It is, therefore, ordered and decreed that the judgment or order of seizure and sale granted in this case be affirmed with costs in both courts.


author: Vooruies, J.

text:
    E. W. Climer, Administratrix, v. L. Selby.
    The general rule that nothing passes a perfect title to public lands but a patent is not without exceptions.
    Where an equitable right which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined.
    A clerical error by the register of the land office in the location of a claim to pre-emption, under the Act of 25th February, 184T, will not defeat the* pre-emption claim, otherwise good, in favor of a patent issued to a third party \ a fortiori if that party knew of the pre-emption ciaim at the time of effecting his entry.
    The rule, 18 Peters 486, that “ when the title to the public land has passed out of the United States by conflicting patents, there can be no ohjection to the practice adopted by the courts of a State to give effect to the better right,” applied and affirmed as applicable to patents eminating from the State.
    from the District Court of the parish of Carroll, Perkins, J.

      Caldwell, for plaintiff.

      Sparrow, for defendant and appellant.
   Vooruies, J.

The plaintiff, suing as the administratrix of the succession of William J. Climer, deceased, sets up title to the N. E. i section 9, in town ship No. 19, R. 11 E., in the district of lands north of Red River, by virtue of a right of settlement, a warrant of location and actual location, and a patent under the State. The defendant claims to be the owner of the same tract of land by virtue of a patent also from the State, anterior in date to that of the plaintiff.

The administrate of Climer's estate alleges that the defendant’s title is null and void, on the ground that the same was issued to him illegally and was obtained by him through fraudulent misrepresentations.

The record shows that on the 6th May, 1847, W. J. Olimer filed in the Land Office at Baton Rouge, his declaration of intention to claim the above described tract of land, as a preference right, under the provisions of the 2d section of the Act of the 25th February, 1847; that after adducing proof, and taking the oath required by law, and paying the purchase money, a warrant of location was granted to him, but by an error of the officer of the land office, the location was made on the S. E. ¿section, then belonging to the United States Government, instead of being made on the N. E. ¿ section on which dimer was actually settled, and which he claimed under his preference right. Subsequently, on the 27th of May, 1850, the defendant, Louis Selby, filed in the Land Office his application to purchase the land in controversy at the rate of $1 25 per acre, with the understanding that should any right of pre-emption be sustained thereto, or to any part thereof, under the Act of the 25th February, 1847, the purchase money should be refunded, to him without interest. On the 28th November, 1850, a patent was issued to Louis Selby in accordance with his previous application; and on the 8th April, 1852, after the death of William J. Olimer, a patent for the same tract of land was also issued to “ William J. Olimer, his heirs and assigns.”

It now becomes necessary to examiné what rights the plaintiffs acquired from the State to the land in controversy, and how they stand affected, if at all, by the defendant’s patent.

It is unquestionably true, as a general rule, that nothing passes a perfect title to public lands but a patent, but this rule is not without exceptions. In the case of Kitteridge v. Breaud, 4 R. R. 83, this court considered the principle tobe well recognized in our jurisprudence, and that of the courts of the United States, that where an equitable right, which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined. In that case, Kitteridge claimed the land, in controversy by virtue of a right of pre-emption, evidenced by the register’s certificate of purchase, and the defendant by virtue of a patent. The court observed that the defendant knew the existence of the plaintiff’s claim and must have concealed it from the knowledge of the Commissioner of the General Land Office and the President, otherwise a patent would not have been issued. The plaintiff’s claim prevailed. (See authorities quoted, and also 13 Peters, 436.) In Godeau v. Phillips, 3 L. R. 62, Judge Porter, as the organ of the court, said: The Acts of Congress which conferred on the settlers on public lands a pre-emption right, vested a legal title in the buyer as soon as the purchase was made, and the money paid according to the conditions prescribed in those Acts. And the title thus acquired could not be legally divested. The Government of the United States could not, even had they desired to do so, have taken the land from the settler, who, under the faith of Acts of Congress, entered the portion of the public land which he was permitted to acquire, and paid for it. But in the present case no such intention existed on their part. It is proved beyond doubt that the sale to the defendant originated in the error of the register.” We think it may be safely assumed in the present case, that no intention ever existed on the part of the State Government to defeat Climer's right of pre-emption or to question its validity in any respect; on the contrary, from the evidence the inference would seem to be clearly otherwise. Robert J. Ker, who was then Register of the Land Office, testifies in relation to the endorsement of location on Climer's warrant as follows: “I think it was made by Mr. Green, my clerk. The practice was to endorse the location from the certificate given to the party. In this way the error which has been committed in the certificate was transferred to the endorsement. Had the clerk or myself had reference to the preference proof, the error could have been detected and corrected, for the south-east quarter has not boon selected for the preference right of W. J. Climer; in fact it was not at the time selected by the State, but was United States land. It was subsequently located under a State land warrant in the Land Office of the United States by Mr. Samuel Canady. Its location in the certificate was a clerical error and a nullity, for the State had not located it. Mr. William J. Climer had certainly no knowledge of its location, and was unconscious of the error as I was myself. Mr. Climer would have known nothing of the mistake committed. The law rendered it imperative that the location should embrace his improvement, and conform to his proof; it was very natural for him to presume that the Register knew the land and did his duty, &e.” The fact, too, of Climer's occupancy of the land, improving and cultivating it until the period of his death in October, 1848, and its remaining afterwards in possession of his widow, scarcely admits, it would seem, of any doubt. Besides, the- fact of tbo issuing of the second patent is significant; it leads to the inference that the State Government must have considered Climer's pre-emption claim as still subsistent and legal, Having it to be asserted according to the principle recognized in the case of Bagwell v. Broderick, 13 Peters, 436, that “when the title to the public land has passed out of the United States, by conflicting patents, there can be no objection to the practice adopted by the courts of a State, to give effect to the better right in any form of remedy the legislature or courts of the State may prescribe.”

We are satisfied from all the circumstances of the case, as consonant with the usual course of human conduct, that the defendant must have been aware of the existence of Climer's pre-emption claim and the actual occupancy of the land at the time he became the purchaser of it; for, in his application for its purchase, we find that he has carefully reserved his right to the reimbursement of the price, in case that any right of pre-emption thereto or to any part thereof, should be sustained under the Act of 25th February, 1847. It is clear therefore, under the principles recognized in the cases to which we have adverted, that the plaintiff’s title must prevail over the defendant’s patent issued in error. It is proper to add that in coming to this conclusion we have disregarded such portions of the evidence as we have considered of doubtful admissibility.

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


author: Ogden, J.

text:
    Virginia and Celesie, f. p. c. v. D. and C. Himel.
    A copy of a record appertaining to a court, certified under the Act of Congress of 20th May, 1790, by the attestation of the clerk with the seal of the court annexed and certificate of the Judge, that the attestation is in due form, is competent evidence.
    By the laws of Louisiana a slave may make a contract with his master for his freedom.
    Prior to the Act of 1846, “To protect the rights of slaveholders in Louisiana,” the removal of a master with his slaves to reside in a free State, had the effect ipso facto of setting them free, and the right to freedom was not forfeited by the return of the slave to Louisiana.
    The Article 190 C. C. and not 1492 C. C, governs the right of the master to make what may be called a donation to a slave of his value by an act of emancipation. The act of emancipation is considered fraudulent quad the heirs, when, at the time it was made, the owner had not sufficient property to leave to his heirs the portion reserved to them by law.
    Persons claiming freedom, have a right to offer evidence of the property of their owner at the date of emancipation, and unless their value exceeded the disposable portion of that property, the right to emancipate is unquestionable.
    The burden of proof, if it could be said to rest on the claimant, was shifted to the contestants after they had objected to the introduction of evidence as to the property of the owner. After this objection, the party making it will in vain argue in this court that the claimant should produce such evidence. Parties cannot be permitted thus to shift their position and contend for one thing in the lower court and for what is directly opposite to it in the appellate court.
    The fact that the emancipated slave was a concubine of the owner, is not one of the causes which the law has declared to be sufficient to render the enfranchisement null and void.
    0. 0.174,177.
    PPEAL from the District Court of the parish of Assumption, Gole, J.'

      Gentile, for plaintiff :
    The mere fact of 'plaintiffs going to a free State with the consent of their owner, entitled them to their freedom, 7 L. R. 170 ; 2 Martin N. S. 401; 9 L. R. 473 ; 13 L. R. 444; 1 Ann. 473; 2 Ann. ISO, and numerous other cases. The Act of 1842, p. 314, clearly shows that such was the intention of the lawgiver, for after prohibiting masters to carry their slaves to free States, (which consequently they could do before this Act!) The law considering them free on their return subjects them to all the penalties provided in the same Act against free persons of color; and the creditors by privilege or mortgage are driven to an action in damages against the owner, this Act clearly shows that the freedom of a slave carried by his master to a free State is absolute and irrevocable, and that Art. 190 of the Civil Code applies only to enfranchise-ments executed in this State.
    The statute of 1846 can have no retroactive effect and destroy rights previously acquired, 2 Ann. 180, this statute shows that the law was different before; otherwise it would have been vain. Besides, Joseph Bernard went to Ohio to free these slaves.
    His declarations were admissible to show that lie had been in Ohio with these individuals and set them free there. 5 Ann. p. 355, Greenloaf, § 10S.
    Plaintiffs are entitled to their freedom under the deed acknowledged in Missouri, and correctly admitted in evidence. Gordon’s Dig. p. 207. Joseph Bernard was permitted by law to emancipate his slaves in. another State according to the laws of that State. Act of 1830, sec. 1(3, p. 94, IS L. R. 440. The opinion and reasoning of the Court in the case last cited fully answers all the arguments of defendants on. this point.
    Even if the emancipation had taken place in this State, the non-observance of the formalities required by law, could not avail defendants; “they have no right to avail themselves of the requisites which the legislature have imposed for public purposes. 5 Rob. 213.
    The subsequent return of plaintiffs could not destroy their freedom once acquired. 8 Ann. 61; 1 Ann. 473, and numerous other cases. Act of 1842, p. 314; Act of 1830, p. 94; 4 Martin, 385; 10 L. R. 489.

      J. O. & A. Beatty, for defendants and appellants:
    The defendants refer the court to Articles 1468, 1470, and 1478 of the Civil Code, for the liberality which the code permits to bo exercised towards persons standing in the relation that Melite and her children did to J. Bernard,, and submit, that if the word donation in Article 1468 be not sufficiently broad to include the gift of personal liberty, which the judge holds to be neither movable nor immovable, it may be embraced in the more extensive term of disposition employed in- Article 1478. Thejr also refer to the decisions of this court in the case of Gole v. Lúeas, 2 Ann. 064, and that of Mary, f. w. e., v. Daniel L. Brawn, 5 Ann. 230, on the subject of emancipations made in other States, in fraud of the law, of the residence of the master.
   Ogden, J.

These cases wore consolidated and came before us on appeal by the defendants.

In one suit Gelesie, a quateroon, and her children Victorino and Gustave, and in the other, Virginie, a sister of Gelesie and her child Philomone claim their freedom. Gelesie and Virginio were the children of a mulatress slave named Melite, who belonged to Joseph Bernard. They were born in the State of Louisiana in the condition of slavery, their mother then being the property of Bernard. In 1835, Bernard left the State with the petitioners and their mother and carried them to the State of Ohio. From Ohio he went with them to the State of Missouri, and subsequently they returned together to the State of Louisiana, where Bernard died about the year 1842.

The legitimate children and heirs of Bernard took possession of the plaintiffs Gelesie and Virginie as the property of their father. Gelesie was bought from the heirs by Glaivelle, and Virginie by Drausin Mimel. The two Miméis against whom the suits are brought, have called in warranty their vendors the heirs of Bernard.

The plaintiffs claim their freedom by virtue of an act of emancipation executed by Joseph Bernard on the 2d of June, 1835, in the city of Cincinnati, and acknowledged, first, before the Mayor of that city, and afterwards before the Circuit Court of the city of St. Louis, in the State of Missouri. They also claim to have acquired their liberty by virtue of the removal of their former owner to a free State, with the intention of residing there and of liberating them, and furthermore set up a title to'.freedom by proscription.

By an Act of the Legislature of Missouri, which is in evidence and which was in force at the'time Joseph Bernard acknowledged the act emancipating his slaves, Melite and her children, the acknowledgment by the owner of such an instrument, before'the "Circuit Court of the county where he resides, is recognized as a legal mode of emancipation. The Act of the Legislature makes it the duty of the clerks of the courts to deliver to the slave they emancipated a copy of the act of emancipation, attested by the clerk under the seal of the court before which the acknowledgment was made. A copy thus attested was offered in evidence by the plaintiffs and, we think, was properly received. The objections to it reserved in a bill of exceptions were that

1st. That the orignal should have been produced.

2d. That the clerk should have certified to the qualifications of the Judge.

3d. That Joseph Bernard was a resident of Louisiana and the Act of the Legislature of Missouri only authorized residents of Missouri to emancipate their slaves in that manner.

These objections wore all untenable. There is no reason to suppose that the original could have been in the possession of or within the control of the plaintiffs. The record was one appertaining to a court and properly certified under the Act of Congress of the 20th May, 1790, by the attestation of the clerk, with-the seal of the court annexed, and certificate of the Judge, that theattes-tation was in dae form. Gordon’s Dig., xlrt. 1317. The evidence shows that Bernard did, at least, temporarily, reside in the count}- whore the acknowledgment was made.

It is fully established that Bernard went out of the State for the purpose of emancipating Melite and her children. Besides Oelesie and Virginie, there was another child called Eupherenie; the then children, with their mother, were emancipated first in a State where slavery is not tolerated, and afterwards in a slave state, where emancipation was permitted according to the forms adopted by tlie owner to set these slaves free.

The only question, therefore, concerning their title to freedom, is presented by the objection which has been strongly urged in tho defence, that the emancipation was made in fraud of our laws and of the portion reserved by law to the plaintiffs, as the forced heirs of their father.

In support of the objection that tho emancipation was made in fraud of our laws, the case of Mary, f. w. c.,. v. Brown,, 5 Ann. 269, is relied on by the appellants. That case was decided, under tho laws of Mississippi, which are entirely different from our own on that subject. Bi’- tho laws of that State a slave can derivo no right to his freedom without an Act of tho Legislature of the State permitting his emancipation. On the contrary, our laws permit a slave to make a contract with his master for his freedom. C. C., Arts. 174, 177. Trapan v. Trapan, 8 Ann. 455. In 1846, the Legislature of Louisiana passed an act entitled an Act “ To. protect tho rights of slaveholders in the State of Louisiana.” This Act declares that thereafter no slave shall bo entitled to his or her freedom, under the pretence of having been, with or without tho consent of tho owner; in a country where slavery does not exist. There can bo no doubt that before that Act was passed, the removal of the master with the slave to a free State had the effect ipso facto of setting the slave free, and that the right to freedom was not forfeited bjr the return of the slave to Louisiana. See cases — Marie Louise v. Marcot, 8 L. R. 475. Eugenie v. Precal et al., 2 Ann. 180. Smith, f. w. c., v. Smith, 18 L. R. 444.

The principal difficulty in awarding to the petitioners the freedom which their master conferred upon them by a most solemn and deliberate act of emancipation arises out of our system of forced heirships. To a certain and very largo extent a man’s children by our laws arc viewed, in the light of his creditors for whatever fortune by his industry ho may be enabled to accumulate. For the protection of the rights of creditors and forced heirs, Art. 190 of the Civil Code has provided as follows: “That any enfranchisement made in fraud of creditors or of the portion reserved' by law t'o forced heirs is null and void; and such plea should be considered as proved, when it shall appear that at the moment of executing the enfranchisement, the person granting it had not sufficient property to pay his debts or to leave to his heirs tho portion to them reserved by law.” In tho present case it is charged by the children of Joseph Bernard , that tho emancipation of the- petitioners was made in fraud of their rights. As it appears by the inventory of J. Bernard's estate that the property he left at his death, including Melite■ and her children, only amounted to §1868. If we are to follow tho rule laid down in Article 1492 of the Code for deterimining the reduction of donations to the disposable quantum, the act of emancipation would be null and void. The Art. 190, however, has established a different rule applicable to what may bo called a donation to a slave of his value by an act of emancipation. The emancipation is considered fraudulent in case it is proved that at the time it was made, the owner had not sufficient property to leave to his heirs the portion reserved to them by law.

The plaintiffs offered in evidence to prove the property owned by Joseph Bernard at the date of the emancipation, and the defendants objected to their right to do so. To sustain the charge of fraud, proof was necessary of what 2>roperty Bernard then owned. Unless the value of Melite and her children then exceeded Ihc disposable portion of his property he had clearly the right to emancipate them. The burden of proof if it could be said to have vested on the plaintiffs was shifted to the defendants, after the defendants had objected to the plaintiffs being permitted to introduce any evidence on the subject. It is in vain for the defendants counsel to argue before us that the plaintiffs were bound to establish what property Bernard then had, when the record shows that in the lower court they objected to any such proof. Parties cannot be permitted thus to shift their position and contend for one thing in the lower court and for what is directly opposite to it in the appellate court, and asks at our hands for relief, because testimony was not adduced which the record shows was excluded by themselves. Another ground of defence is, that Melite was the concubine of Joseph Bernard, and that the emancipation was a gift of so much of his estate, which by law is prohibited to be made to one standing in that relation.

The law has declared what causes shall be sufficient to render the enfranchisement of a slave nub and void, and this is not one of them.

We are of opinion the plaintiffs áre entitled to their freedom.

Gelesie having died during the pending of the suit, Irer-children Yietorine and Gustave, who are plaintiffs and who were born after the emancipation of their mother are entitled to a claim for their liberty, their rights are recognized in the reasons assigned by the Judge for his judgment, but seems to have been overlooked in the decree itself, which must therefore be amended.

It is therefore ordered, adjudged and decreed, that Yietorine and Gustave, the clildren of Gelesie as well as Yirginie and her children born since the deed of emancipation by Joseph Bernard, be forever quieted in the exercise and enjoyment of their liberty against all claims and pretensions of the defendants, Clairville and Brausin Hvmel, and it is further ordered that the judgment of the court below thus amended, be affirmed at the costs of the appellants.


author: Voobhies, J.

text:
    H. Bonzano v. Auze.
    When, a deceit is practiced on a vendee, whether he gains by or loses the subsequent sale of the thing, his right to the action quwiUmwioris remains perfectly the same.
    from the Fourth District Court of New' Orleans, Reynolds, J.

      Livingston, for plaintiff and appellant.

      Goold & Stansbury, for defendant.
   Voobhies, J.

The plaintiff sues to recover the sum of $383 70, the alleged difference betw'een the sample and the rice purchased by him from the defendant, and also for charges, insurance, cooperage, interest and broker’s commission.

The sale having been perfected by delivery, the plaintiff’s remedy, in case the thing' sold contained redhibitory vices or defects as merely diminished its value, was to resort either to the action of redhibition or to the action for a diminution of price. 0. 0. 2496, 2519, 2520.

The plaintiff having disposed of the rice which he purchased from the defendant, resorted to the action for a reduction of price. This he could do, because when a deceit is practised on a vendee, “ whether he gains or loses, by the subsequent sale of the thing, his right to the action quanti minoris remains perfectly the same.” 1 N. S. 318.

The evidence, it is true, establishes some difference in the quality of a small portion of the article sold, but it is so unsatisfactory as to the amount of that difference, that it is impossible for us to ascertain the reduction of the price to which the plaintiff would be entitled..

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


author: Spoppord, J.

text:
    White v. Hill, Executor.
    A vendee is deemed to have purchased at his own risk, who buys a slave with an apparent defect; there being no misrepresentation or concealment of the truth on the part of the vendor.
    A vendee, seeking rescission of the sale of a slave suffering at the time of sale from a flesh wound, should show that he had taken due pains to heal it, or prevent its producing permanent lameness, working the slave in an employment- calculated to aggravate the wound, shows a want of proper care.
    O. C. 2497-8.
    from the District Court of the Parish of East Feliciana, Merriole, J.

      Pond, for plaintiff.

      Paqua, for defendant and appellant.
   Spoppord, J.

The verdict and judgment rescinding the sale of the slave Lewis, on account of a redhibitory defect, appear to be erroneous, for two reasons :

1. The vendor declared the defect, such as it was, at the time of the sale.

The officer who made the sale says, that the boy’s knee was exhibited; that the plaintiff himself examined it; that it appeared to be swollen, but the injury was thought to be temporary, and was so stated by Dr. SHpwith, who examined it in presence of the bystanders, and that it was occasioned by a fall a few days previous.

No deception whatever was practised. The defect was apparent, and was made still more so by directing public attention to it. The plaintiff must be deemed to have bought at his own risk, in regard to this injury* to the knee, as he has failed to prove any misrepresentation or concealment of the truth. 0. 0. 249T-S.

2. The vendee has not shown that he took sufficient pains in seeking to heal the wound, or to prevent it from running into a pei'manent lameness. It was in a delicate part of the frame, and, according to the opinion of the plaintiff’s own medical witness, required rest and attention. Instead of that, the boyr was put to the plough, “ the worst work to which he could have been put.” No attempt to return the slave appears to have been made until more than a year after the sale, and sometime after the present defendant had procured an order of seizure and sale for the unpaid part of the price.

Afterwards, the slave appears to have been attacked with scrofula, which aggravated the lameness, and the boy may now be considered as worthless. But the circumstances of the case do not require the loss to bo thrown on the vendor.

It is therefore ordered, that the judgment of the District Court bo reversed; and that the injunction sued out by plaintiff against the order of seizure and sale, be dissolved ; the plaintiff to pay costs in both courts.


author: Vooriiius, J.

text:
    Edward Shaw, Tutor, v. M. C. Reneau.
    Plaintiff, as tutor of his minor children, claimed a specific amount of property by inheritance from defendant’s deceased spouse, and sequestered it. Defendant set up a claim forliis marital portion, which was ruled out on the ground, that his wife’s succession had not been settled. But there being no allegation nor proof, that the estate was involved, or that it needed the appointment of an administrator, or that it was in process of settlement. Held: The District Court should have allowed defendant to substantiate his claim.
    from the District Court of the Parish of Carroll, Snyder, J.

      Selby, for plaintiff:
    The exception by plaintiff was properly sustained by the court a quo. The defendant, himself, in his answer claiming the marital portion, shows that the succession of his deceased wife, has not been liquidated. 8 An. 488. 9 R. R. 101. 17 L. R. 374. O. C. 2369.
    The defendant’s rule (p. 16) was filed after the judgment in the cause had . been signed and was final. So that then, there was no suit pending to sustain it. 8 An. 11. 5 An. 349. 4 An. 187. 3 An. 207 and 434.
    Dubose, for defendant and appellant,
    cited 17 La. 376. 6 An. 169. 3 N. S. L and 6.
   Vooriiius, J.

The plaintiff, as tutor of his minor children, William J. Slum and Matilda Slum, instituted the present suit against the defendant, surviving husband of Martha A. Poicell, deceased, for the purpose of recovering two shaves and some personal property which they held by inheritance from the estate of the said Martha A. Powell, their deceased half sister. The defendant admits the heirship of the plaintiff, but avers that he is entitled to the marital portion in the succession of his deceased wife, inasmuch as she died rich, leaving him in necessitous circumstances. He farther alleges that, besides the abovementioned property, there is a large amount of real and personal property belonging to the estate of said Martha A. Powell, deceased, all of which is in the hands of Edwa/rd, Shaw, individually.

An exception was filed by the plaintiff to the defendant’s demand for the marital portion, on the ground that it was premature, the estate of his deceased spouse not having been liquidated and finallysottled ; which exception was sustained by the court below. There was judgment in favor of the plaintiff as prayed for in his petition, reserving the defendant’s right to the marital portion, and the latter appealed.

It is insisted upon by the plaintiff and appellee, in support of the judgment of the District Court, that the ruling on the exception was in accordance with the interpretation of Article 2389 of the Civil Code, in the following cases : Harrell v. Harrell et al., 17 L. R. 376; Durian v. Durian et al., 9 R. R. 102 ; and Vasseur v. Dupré, 8 An. 488, in which the principle is recognized, that the marital fourth cannot Vie claimed before the liquidation and final settlement of the estate of the deceased spouse. We still adhere to the rule laid down in those cases; but it is proper to notice, that -in every one of them, the estate was in process of liquidation and settlement, and more particularly in the case of Vasseur v. Dupré, administrator, where the marital portion was claimed against the curator of the estate, without making the heirs parties to the suit. We adhere more particularly to the ruling in the case of Durian v. Durian, in which the court said: “ This right the plaintiff already had under Article 2359 of the Civil Code; but to exercise it effectually, he must show the specific amount of the succession of which he claims one-fourth, either by exhibiting a regular settlement and liquidation of the estate, or by proving that her heirs have received a specific amount of money or property belonging to the same, which the}' detain, without making such settlement or liquidation.” How stands the case at bar ? The plaintiffs claim a specific amount of property by inheritance from the defendant’s deceased spouse, and have taken possession of thr same, after having it sequestered. The defendant admits the existence of all the rights set up by them, but makes a reservation as regards the marital portion. There is no allegation, nor is there any proof, that Martha Ann PoioelVs estate, is involved in debt or needs the appointment of an administrator, or is in process of settlement and liquidation; whilst, on the other hand, a specific amount of property is shown to be in the plaintiff’s hands, and which they detain without any apparent intention of proceeding to a settlement and liquidation of the estate. The District Court therefore erred in ruling out the defendant’s demand, whom he should have allowed to substantiate his claim as set forth in his answer.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and the case remanded for further proceedings according to this decision. The costs of appeal to bo borne by the plaintiff.


author: Spofford, J.

text:
    The State v. James W. Pratt.
    The charge of “ inflicting a wound less than mayhem,” is not necessarily included in a charge shooting with a dangerous weapon, with intent to kill and murder.
    In an indictment upon a statute, it is necessary that the defendant should be brought within all the material words of the statute, and nothing can be taken by intendment.
    The offence should be charged either in the language of the statute, or in language of equivalent import; and a verdict not responsive to the charge, will not authorize a judgment.
    PPEAL from the District Court of the Parish of East Baton Rouge, Eobert-son,

    J. I. E. Morse, Attorney General, for the State.

      T. <?. Davidson also appeared for the prosecution.

      J. M. & J. E. Elcrn, for the accused and appellant.
   Spofford, J.

The defendant was indicted for assaulting and shooting Barnett Williams, with a dangerous weapon, with intent to kill and murder him.

In a second count, he was charged with a liko assault, with intent to commit the crime of murder.

The Judge instructed the jury that, under this indictment, “if they believed the prisoner did, with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem, they must find a verdict accordingly, because the charge of shooting with a dangerous weapon with intent to commit the crime of murder, includes the lesser offence of inflicting a wound loss than mayhem, with a dangerous weapon, or with intent to kill.”

The jury found the following special verdict: “ We, the jury, find the accused guilty of an assault on the person of Barnett Williams, with a dangerous weapon, and inflicting a wound less than mayhem, and we further recommend him to the mercy of the court.”

The prisoner, who had taken a bill of exceptions to the charge of the court, after vainly seeking to arrest the judgment, was sentenced to six months imprisonment in the parish jail, and to pay a fine of $250, and costs.

From this sentence, lie has appealed.

The District Judge thought the verdict was justified under the authority of the case of The State v. Stouderman, 6 An. 286. In that case it was held, that under an indictment for an assault, with intent to commit murder, the prisoner may properly be convicted of an assault with intent to kill.

The decision was correct, because the intent to kill is of necessity included in the intent to commit murder, and the case was put distinctly upon that ground.

But the charge of “ inflicting a wound less than mayhem,” is not necessarily included in a charge of shooting with a dangerous weapon, with the intent to kill and murder.

In an indictment upon a statute, it is necessary that the defendant should be brought within all the material words of the statute ; and nothing can be taken by intendment. Wharton’s Crim. Law, 188. 1 Chit. Crim. Law, 283.

The offence should be charged either in the language of the statute, or in language of equivalent import; and a special verdict not responsive to the charge, will not authorize a judgment.

Here, the jury have found a verdict for a statutorjr offence not charged in the bill of indictment, by averments comporting with the terms of the statute, nor necessarily embraced in the offence as charged.

It is therefore ordered, that the sentence bo set aside, judgmentarrcsted, and the prisoner discharged.


author: VooRniES, J.

text:
    N. S. Shields, Tutrix, v. Jeanti Lanna.
    The absence of a counsel, trying a suit in another court, is no ground for a neir trial.
    from the District Court of West Feliciana. Sterling, J.

      Ratliff, for plaintiff and appellant,
    cited 0. P. 558, Nichols v. Alsop, 10 La. 409. Holmes v. Steamer Ghieftain, 1 An., 136. Union Bank v. Roberts, 9 R. R. 177. loen v. Sullivan, 2 Ann. 292. Wilkins v. East Baton Rouge, 10 R. R. 57.

      Brewer & Gollins, for defendants.
   VooRniES, J.

A judgment of 'non-suit having been regularly entered against the plaintiff on her failing to appear and prosecute her suit, she filed a motion for a new trial, based on the ground that the Counsel she had employed was absent from the Court at the time the case was fixed, and tried without her knowledge and consent; that in consequence of the change introduced by law in the sessions of the Courts of East Baton Rouge and West Feliciana, her counsel, who had previously boon retained in several cases in both parishes, was unavoidably absent from the latter court, without any negligence on his part; and in fact arrived there shortly after the dismissal of her action..

It has already been held that “the absence of an attorney, trying-a suit in another court, is no ground for a new trial.” 13 L. R. 424. In the case of Dwight v. Richard, a similar application was made on the ground of the attorney’s absence, caused through his ignorance of the month in which the court was to be held, and that the party had used diligence in procuring his attendance; that the attorney upon receiving his client’s communication, travelled day and night, until he reached the court on the third day of the term; but that the day previous a judgment of non-suit had already been entered. The motion was overruled, and this court refused to disturb the ruling. 4. An. 240, 9 R. R. 177.

The absence of the plaintiff’s counsel in the present case did not constitute a sufficient ground for a new trial; she resided in the parish where her suit was pending, and could have employed other counsel to attend to it. Judgment affirmed with costs.


author: Slidell,. O., J.

text:
    M. Dodeman, et als. vs. R. Barrow.
    A sale made by the State Treasurer in 1828 undér the existing laws, for the non-payment of taxes by a non-resirlent, under the designation of “a certain tract of land, situated in the palish of Assumption,.measuring six arpents, more or less,” is invalid by reason of the uncertainty, of the thing sold.
    Such a sale cannot be cured by a monition; nor will a judgment on a monition sustain the plea of res adgudieata in favor of the title acquired under such a sale.
    from the District Court of the parish of Assumption. Gole, J.

      Bonford & Gentile, for plaintiff and. appellant.

      Ilsley, for defendant.
   Slidell,. O., J.

The plaintiffs seek, in this action, to recover from the defendants a tract.of land,.described as lying in the parish of Assumption, having a front on bayou Lafourche, opposite Napoleonville, of six arpents, by a depth of forty, bounded below by lands formerly of Maurice Elpert, and above by lands of Street, and bounded at present above and below by lands of the defendants. They set forth a title for the whole tract anterior to the tax sale, which has given rise to this action.

The only question which arises in the present stage of the cause, is the correctness of the judgment below in favor of the defendant, on his plea of res judicata, upon which alone the cause was heard below. The plea is based on a decree rendered upon an application for a monition made under the Acts of 1834 and 1838. The State Treasurer in the year 1888, adjudicated to one Moaney, for the price of $16, “ a certain tract or parcel of land situated in the parish of Assumption, measuring six arpents, more or less.” The deed of the Treasurer, which the defendant annexed to his petition for a monitipn, recited that the land was sold for taxes due by one of the plaintiffs, Martial Dodeman, returned by the collector of taxes as non-resident. On the 21st May, 1840, a decree was signed by the District Judge, confirming and homologating the adju-cation made by the State Treasurer. In the decree the land is described as “a tract of land having six arpants front on the said left bank of bayou, nearly opposite the mouth of said canal, bounded above by land of F. Street, and below by land of Maurice Elpert

This plea of res judicata, being tried alone, no evidence was offered by the plaintiff, and the defendant gave in evidence only the petitions and decree in the monitions. We have to decide, therefore, whether the action of the plaintiff for the tract, of six arpents front, by forty in depth, described, in his petition, is barred by the decree in monition.

We think the District Judge erred. There was an adjudication to Moaney of six superficial arpents, the property of Martial, Dodeman, somewhere in the parish of Assumption. This sale was, unquestionably, invalid, by reason of the uncertainty of the thing sold. No metes and bounds being stated, and no description of the six arpents, whatever, being given, save that they were in the parish of Assumption and belonged to Martial Dodeman, what authority had the purchasers to enter upon the tract of 240 arpents owned by Martial Dodeman, and carving a portion out of it, say, these are the six arpents I bought.

Here there was a virtual invalidity arising from the uncertainty of the thing sold. Can it be cured by a monition ? We think not. We can find no warrant in the monition law authorizing the District Judge to locate that tract, which the adjudication did not locate, much less to enlargo the sale, and convert a purchase of “ six arpents, more or less ” into a purchase of a tract having six arpents front by forty in depth, in other words a tract of 240 arpents.

It is therefore decreed that the decree of the District Court sustaining the plea of res judicata be reversed, the said plea be overruled, and that this cause be remanded for a new trial, and further proceedings according to law the costs of the appeal to be paid by the defendant.


text:
    The State v. Thomas P. Heas.
    The doctrine that the malice aforethought must be specially charged in the conclusion of an indictment for murder, has been well settled in the Common Law of England, and has been adopted in the criminal jurisprudence of this State by the Act of the Territorial Legislature, in 1805.
    The words “ of his malice aforethought,” in the conclusion of an indictment; for murder, is not an “ unnecessary prolixity ” of the Common Law, referred to in the Act of May 4th, 1805, Sec. 83, and this though the words “ feloniously, wilfully( and of his malice aforethought,” are thrice repeated in the body of the bill of indictment.
    The verdict must be responsive to the charge, or else the judgment will be reversed.
    Where the indictment was technically defective as an indictment for murder, in consequence of which the judgment was arrested; yet, where the verdict of the jury clearly indicated that the jurors believed the prisoner guilty of murder, the Supreme Court ordered him to be detained in close custody until the next session of the grand jury for the parish, in which he had been tried.
    from the District Court of the Parish of Lafourche, Gole, J.
    Roman, District Attorney, for the State.

      J. 0. & A. Beatty, for defendant and appellant,
    cited: Chitty, 1, 243, note W. 3, 750; edition of 1841, Vol. 2, p. 4; Vol. 3, p. 750; East’s P. O. 1, 345, §116; Archbold’s Criminal Pleading, 381, edition of 1840; Russell on Crimes, edition of 1831, 469 — original edition, 470 ; Hale’s P. C., 1, 449 and 466; 2, 184, edition of 1800.
   Spofford, J.

Thomas P. Heas was indicted for the murder of Henry Boyd.

The Jury found the following verdict: “ Coupable avec préméditation sans application de la peine de mort.”

The prisoner moved for a new trial and in arrest of judgment, but both motions were overruled. Having, thereupon, been sentenced to hard labor in the penitentiary for life, he took this appeal.

The principal error relied upon to procure an arrest of judgment, consists in an omission, in the conclusion to the bill of indictment, of the formal clause “of his malice aforethought.” The conclusion is as follows: “ And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Thomas P. Heas. him the said Henry Boyd, in the manner and form and by the means aforesaid, did kill and murder, contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.”

It is true, the words “ feloniously, wilfully, and of his malice aforethought,” are thrice repeated in the body of the bill, in charging the assault, the discharge of the loaded gun, and the wounding of Henry Boyd. But by the common law of England, as it stood in the year 1805, the repetition in the body of the bill could not cure an omission of the same material phrase in the conclusion. Nor can the words “ in the manner and form aforesaid ” be intended to include the ‘malice aforethought.”

“ Though murdramt be in the indictment, yet, if it wants the words exmali-tid sua prmeogituld, the party shall have his clergy.” 2 Hale’s Plea. Crown, 187.

“ As a conclusion from the facts averred, it must be stated that so the defendant, feloniously, of his malice aforethought, did kill and murder the deceased ; for, without the terms ‘malice aforethought’ and the artificial phrase ‘murder,’ the indictment will be taken to charge manslaughter only.” I Chit. Cr. Law, 243.

In The Commonwealth v. Gibson, 2 Virginia Cases, 14, the Court said: “ In indictments for murder it is necossory to aver that the person indicted, ‘ of his malice aforethought,’ killed and murdered the deceased ; that these words ‘ malice aforethought’ cannot be supplied by others whose import may be the same; that, although it is averred in this case that he did ‘feloniously, wilfully, and of his malice aforethought,’ give the mortal wound, — and although, in the conclusion, the indictment does aver that he, ‘in manner and form aforesaid, feloniously, wilfully and maliciously did kill and murder,’ &c.; yet as the words ‘ of malice.aforethought’ are not used in that conclusion, the indictment in this case cannot be supported as an indictment for murder.” 2 Virginia Cases, 74.

See also, Anderson v. The State, 5 Pike, 445, where many authorities upon this subject are cited, and whore the words “of malice aforethought,” in the conclusion, were held unnecessary, Ringo, C. J, dissentiente; but the opinion of the majority was based entirely upon statuary provisions peculiar to the law of Arkansas.

See also, Respublica v. Honeyman, 2 Dallas, 228.

The authorities cited on behalf of the prisoner have not been met in the elaborate argument of the District Attorney, save by the same course of reasoning which was overruled in the case of The Commonwealth v. Gibson, and by some detached expressions and abbreviated forms from Hale, Chitty, and Starkie.

The doctrine that the malice aforethought must be specially charged in the conclusion of an indictment for murder, we consider to have been well settled in the Common Law of England, and to have been adopted into our criminal jurisprudence by the Act of the Territorial Legislature in 1805.

No subsequent statute has changed the law in this respect.

We have been urged by the Attorney General to take the responsibility of declaring the repetition of this technical phrase in the conclusion of an indictment for murder, to be an “ unnecessary prolixity,” of which tho form of the indictment may be divested by virtue of the Act of May 4th, 1805, §33.

The Supreme Court of the Territory of Orleans, as early as 1810, wore asked by the then Attorney General to assume a similar responsibility under this statute. But they declared that what wise judges in England had held to be essential averments, must be held so here ; that some standard must be given for Courts to be governed by besides human reason that is as various as the physical and mental capacities of men ; and the language of a celebrated British jurist was quoted as signally applicable here : “ The freedom of our Constitution will not permit that, in criminal cases, a power should be lodged in any judge to construe the law otherwise than according to the letter.”

Territory v. Nugent. 1 Martin, 117, 173.

Again, in The State v. Kennedy, 8 Rob. 601, the same argument was addressed to the Court of Errors and Appeals. Their response was : “We do not believe that ■ the Legislature intended to confer upon Courts authority to legislate upon the subject-of criminal proceedings or the findings of indictments; but merely to direct prosecuting officers to omit those prolixities which were acknowledged to be such at Common Law, and therefore unnecessary, although habitually inserted in indictments, such as the averment that the defendant, “ not having the fear of God before his eyes,” &c.

This has become the settled construction of the Statute of 1805. Were it not so, we should hesitate to exercise a power which, under the true theory of our Government, the legislative branch is, perhaps, incompetent to delegate to the judiciary.

It is better that a murderer should escape the legal penalty of his guilt, than that this tribunal should usurp an authority withheld from it by the Constitution. Guided by that instrument, it is our sole duty and desire to administer the law as it is; to others belong the arduous task of making it what it ought to be.

The judgment must be arrested ; but we cannot order the prisoner to be discharged, as we are asked by his counsel to do. The verdict of the jury, “ Guilty with premeditation,” renders it impossible for us to conclude that he has been convicted of manslaughter, as we might perhaps have done if there had been simply a general verdict of “ Guilty neither has he been acquitted of manslaughter ; upon that issue the jury have never passed, although it may be conceded, that the indictment would be valid as an indictment for that offence.

Considering the charge as one of murder, the judgment must be arrested for want of a formal conclusion to the indictment: considering it as a charge of manslaughter, the judgmont must be arrested for want of a verdict responsive to the issue.

As to the emphatic verdict of the jury, although upon an indictment technically insufficient, affords the strongest presumption that the prisoner is guilty of the murder of Henry Boyd, and as, in legal contemplation, he has not yet been in jeopardy of life or limb on that account, it becomes our duty, as conservators of the peace of the State, to guard against his escape from justice, so far as it is possible for us to do so.

It is therefore ordered, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that judgment against Thomas P. Seas, upon the bill of indictment preferred against him by the Grand Jury of the Parish of Lafourche, on the 2d day of October, 1854, (a copy whereof is found in the record of this cause,) be arrested; but that the prisoner be detained in close custody until the next session of the Grand Jury within and for the Parish of Lafourche, then and there to answer to a now bill of indictment to be preferred against him for the murder of Henry Boyd, and to abide the orders of the District Court of the Parish of Lafourche thereupon.


author: Spofíokd, J.

text:
    J. W. Wortham v. H. Schenck.
    A judgment will not be amended for the relief of appellee, unless demanded in answer to the appeal. 1'he asking of relief in argument will not avail
    from the District Court of East Baton Rouge. Robertson, J.

      Bailiff, for plaintiff and appellant.

      Seymour & Morgan, for defendant.
   Spofíokd, J.

The jury who heard the witnesses thought the plaintiff had failed to show anything beyond nominal damages, by reason of the breach of contract alleged to have been committed by the defendant.

As a close examination of the evidence satisfies us that their conclusion was correct, it would be useless to discuss the bill of exceptions taken by the plaintiff to the District Judge’s charge to the jury. Nor can we give the defendant the relief he asks in his printed argument, by reversing the judgment which carried the costs in the District Court against him.

He has filed no answer to the appeal, in which such an amendment of the judgment is prayed for.

The judgment is therefore affirmed, the costs of this appeal to be paid by the plaintiff and appellant.


text:
    The State v. Konrad Onnmacht.
    It was assigned as error on the face of the Record, that no indictment was found against defendant by the grand jury, and that no bill was returned by them to the Court. Held: That the Record, containing a full and complete statement of the time and place of holding the Court, the names of the persons composing the grand jury, the appointment by the Judge of the foreman, and his being sworn, and the grand jury being empannelled and sworn, and charged by the Court to inquire for the Body of the Parish; and the Record showing, also, that there was on the day following, an entry on the minutes, under the caption of the cause, of “ True bill and indictment for laying in wait and shooting with intent to commit murderand the indictment itself being endorsed by the clerk as filed on the same day of the entry, with the name of the foreman below the words “ a true bill,” renders it certain that the indictment was found by the grand jury and presented by them in open court. To hold otherwis e would be to reverse the maxim, oimiia- rite acta.

    liad the objection to the clerk’s entry, that it did not show with certainty that the grand jury had been brought into court, been made specially in the Crnrt below, the minutes could have been corrected and an entry made nunc pro tm-nc.

    The proper mode of returning an indictment into Court is made by endorsing on the back of it“ A true bill.” The entry of the clerk, in the form above, was a sufficient rending of the finding of the indictment.
    PPEAL from the District Court of the Parish of Pointe Coupee, Cooley, J.

      Roy, District Attorney, for the State.

      U. B. & F. Phillips, and Prowsty & Farrar, for the accused and appellant.
   Ogden, J.

The Defendant has appealed from a sentence condemning him to hard labor in the Penitentiary for life, for the crime of laying in wait and shooting, with intent to commit the crime of murder. His counsel moved, in the Court below, to arrest the judgment on several grounds: 1st, That no legal indictment had been found against the accused. 2d, That no indictment had been 1 egallyr returned against him by the Grand Jury to the Court. 3d, That no charge had been legally preferred by the grand jury against the accused. The motion was overruled on the ground that no specific objections were set forth in it. In this Court an assignment of errors has been filed, which the appellant’s counsel relies on as embodying the grounds of the motion made in arrest of judgment, and disclosing errors apparent on the face of the Record, which entitle the prisoner to a reversal of the judgment and to a discharge.

1st. It is first assigned as error, that it does not appear from an inspection of the Record that any indictment has ever been found against the defendant by the grand jury; and that it does not appear that any bill of Indictment was ever returned or presented by the grand jury to the Court. The Record before us contains a statement of the proceedings, which is full and complete as to the time and place of holding the Court, the names of the persons composing the grand jury, the appointment by the judge of the foreman, and of their being duly empannelled and sworn, and charged by the Court to inquire for the body at the Parish of Point Coupee. On the day following the empannelling the grand jury, an entry appears on the minutes in these words : “ The State of Louisiana v. Konrad, Onnmacht; true bill and indictment for laying in wait and shooting with intent to commit murder.”

The indictment itself is endorsed by the clerk as filed on the same day that the foregoing entry was made on the minutes, and the name of J. W. Janean,, foreman, below the endorsement, in the usual form of the words “ a true bill.” The entry on the minutes of the previous day stated that J. W. Janeau had been appointed and sworn as foreman. This renders it sufficiently certain, that the indictment to which the prisoner subseqently pleaded was presented by the grand jury in open court. The clerk enters on the minutes only what is done while the court is in session, and only such proceedings as ought to appear of Record. No entry would be made on the minutes of what did not transpire in open court; and to presume it possible that the grand jury did not, as a body, return the indictment in this case, and in open Court, would be reversing directly the maxim, omnia rite aeta.

It may be also observed, that if the prisoner had made the objection specially in the court below, that the entry made by the clerk, as above set forth, did not show with certainty that the grand jury had brought the bill into court, the minutes could have been corrected and such an entry made, nunc pro tunc, as would have obviated all objections.

Chitty on Criminal Law, p. 324, states that the mode in which the grand jury return the result of their inquiries into court, is by endorsing on the back of the bill the words “A true bill,” and that it then becomes a part of the indictment, and renders it a complete accusation against the prisoner.

Before the grand jury have found the accusation to be true, it is merely a bill, and to be so termed in pleading, and not described as an indictment. Chitty, p. 328.

2. The entry made by the clerk on the minutes, as above recited, although not in the usual form, considered with reference to the indictment itself, was a sufficient recording of the finding of the indictment.

3. The third and last ground assigned as error that the indictment itself contains no charge against the defendant of the commission of any crime, is supported by a verbal criticism which it is not necessary we should notice further than to say that the crime is charged with sufficient certainty.

The judgment of the Court is therefore affirmed with costs.


author: Buchanan, J.

text:
    L. Hertz v. W. H. Wilder.
    Although a party may sometimes be permitted to allege and prove that the form of a legal contract has .been used to cover a corrupt or flagitious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the judge is not only authorized, but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction with the power of demonstration.
    from the Fourth District Court of New Orleans, Reynolds, J.

      H. D. Ogden, for plaintiff and appellant.

      Durant & Horner, curators ad hoc, for defendant.
   Buchanan, J.

This is a suit instituted upon five several promissory notes made by defendant in favor of plaintiff, at different dates, ranging from July 20th, 1852, to May 13th, 1854, and maturing respectively from January, 1853, to August, 1864. The suit was instituted by attachment on the 21st December, 1864, the defendant being then a fugitive from justice, having escaped from the custody of the marshal, after conviction of the crime of uttering forged land warrants, knowing them to be forged, in the Circuit Court of the United States holding session in New Orleans. The defence, put in by a curator, ad hoe, appointed b}' the Court, is want of consideration.

In support of this defence, the curator ad hoe of defendant has offered a certain document purporting to be signed by plaintiff, in the nature of a counter letter. This' document bears date the 26th September, 1864, and, after describing the five notes herein sued upon, in detail, proceeds to declare as follows : “ Which said notes have been this day delivered to me by the said Wilder, and for which no value or consideration has been by me given — -the first four of said notes having been anti-dated to correspond with certain old chocks in my possession, drawn on the days and 3rears above stated, for the amounts above stated; said checks being made payable to bearer on the house of Judson & Oo., and given at those times to some persons whom I cannot recollect, or drawn in the way of business. The above notes are given for a certain purpose, and I agree to return said notes to said Wilder or his agent after the termination of the proceedings now ponding in the United States Circuit Court for Louisiana, entitled “ The United States v. William H. Wilder and Philip Prendergast.” The evidence is very conflicting as to the genuineness oí the signature of plaintiff to this document. Three witnesses, Delgado, Armor, and Solomon, testify to an acquaintance with the handwriting of plaintiff, and that, in their opinion, the signature in question is his. On the other hand, four witnesses, Montross, Bartlett, Newman, and McOormielc, who profess to be well acquainted with plaintiff’s handwriting, declare their conviction that the signature to the document B. was not written by him. In this discrepancy of testimony, it would scarcely be safe to pronounce the document to be genuine, coming, as it does, from the possession of a convicted forger. The appellee now relies upon the testimony of a witness, who is the brother-in-law of defendant, to sustain the plea of want of consideration. This testimony consists of confidential communications made by Wilder to the witness, out of the presence of the plaintiff, and a conversation said to have taken place between plaintiff and defendant. As to Wilder’s declarations to the witness, out of plaintiff’s presence, a bill of exceptions has been reserved. And we are of opinion that they were improperly admitted in evidence. There remains the evidence given by this witness of a conversation said to have taken place between plaintiff and defendant on the evening previous to the trial of the latter in the United States Court. This portion of the witness’ deposition is as follows: “Witness was going home the evening before Wilder’s trial, and at the corner of Exchange Alloy and Customhouse street he met Wilder and Hertz conversing together. Deponent asked Wilder to go home, and accompanied him home. Witness heard L. Hertz say he would to-morrow come into court and swear to the amount of the notes which Wilder had given him, Hertz. Wilder was apparently pressing Hertz for a receipt of the notes. Hertz said it did not matter, as he would destroy them immediately after the trial. Wilder told Hurtz he had either lost or mislaid the receipt Hurtz had given him, and, in case of any accident either to Hertz or himself, ho would like to have a receipt. Deponent pressed Wilder to go home as it was getting late, aud they then separated, Hertz remarking that he would next morning be in court, and fulfil his promise.”

If this witness is to be believed, the plaintiff has admitted the existence of some such document as that which has been the subject of our preceding remarks. But we should not lose sight of the fact that Wilder is defending this case upon an allegation of his own criminality. Ho avers, in substance, that the notes sued upon were part of a scheme of fraud and perjury, concocted between himself and plaintiff, for the purpose of screening himself from a criminal prosecution which has terminated in a conviction. “Nemo allegaos turpi-tudinem suam audiendus est,” is good law, no less than sound morality. The maxim, “ex turpi causa non oritur actio,” is, however equally orthodox. And it may well be asked, how can the latter maxim receive a practical application unless the party defendant be sometimes allowed to allege and to prove his own turpitude? The only mode of solving the dilemma strikes us to be, that, although a regard to the purity of justice compels the admission of allegation and proof that the form of a legal contract has been used to cover or corrupt a flagi-tious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the judge is not only authorized but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction with all the power of demonstration. Now, it scorns to require explanation in what manner the notes of Wilder, in the hands of Hertz produced as a witness on the trial of Wilder, and the false testimony of Ilertz that Wilder was really indebted to him in the amount of those notes, could have benefited Wilder in the defence of a charge against him, at the suit of the United States, for having feloniously and knowingly uttered forged land warrants. The witness, Palmer, gives no satisfactory explanation on this point, neither does the record show anything that passed upon the trial of Wilder on that charge. It informs us, indeed, that Wilder was tried and convicted ; but whether Hertz gave any evidence at all on the trial, and if so, what bearing his evidence had on the case, we are not informed. Unaided by evidence, we have been unable to perceive any reasonable motive for the alleged fabrication of simulated notes, and the subornation of false testimony to prove them real.

On the whole, as we sustain the plaintiff’s bill of exceptions to testimony ; as the signature to document B has not been proved to our entire satisfaction ; and as we think it probable that further light may be thrown on this very singular case by the production of further evidence, we have thought it advisable to remand the cause for trial before a jury.

It is therefore adjudged and decreed, that the judgment of the Court below be reversed, and that the case be remanded for trial before a jury, and ip other respects to be proceeded in according to law : the appellee to pay costs of appeal.