author: Voorhies, J. Merrick, C. J.,

text:
    State v. W. G. Bunger.
    An opinion formed and expressed by a juror in ft criminal case, which is based wholly upon rumor, and when there is no bias or prejudice in the mind of the juror, is not a disqualification.
    The jurisdiction of the Supreme Court being limited to questions of law in criminal cases, it must appear clearly by a bill of exceptions to the refusal of the Judge to sustain a challenge of a juror for cause, that no question of fact but one purely of law was presented for decision.
    Tho statutes regulating the arrest and commitment of persons accused of crimes and misdemeanors, do not require the previous examination of a prisoner before a commuting magistrate, in ordor to authorize the Grand. Jury to inquire into the matter and find a bill of indictment.
    Where the regular session of a court is adjourned over by order of the Judge at chambers, the jurors summoned for the first week of the court, are bound to attend, and servo for the first week of tho actual session of the court thus adjourned over.
    Tho accused, in a criminal case, is not entitled to service of the list of talesmen.
    Where a juror can be challenged for cause, the right must be exercised before the juror is sworn, and a verdict cures tho defect.
    Where the jury cannot be completed by talesmen from among tho bystanders, recourse may be had to other persons not within the presence of the court.
    The objection was stated in the bill of exceptions to the refusal of the Judge to grant a new trial, that such talesmen were summoned during the time the court was adjourned — Held: That there was no error in tho ruling of the court below, and that if any complaint was made by the accused against the Sheriff for want of impartiality in summoning such talesman, it was a matter of fact to be submitted to the Judge, and rested in his sound discretion.
    The Judge may properly refuse to charge the jury as requested by counsel, on tho ground that the charge asked for is tho same in substance with that alreadv given, with the only difference of being shaped in a manner calculated to mislead the jury.
    PPEAL from the District Court of the Parish of Madison, Farrar, J.

      E. W. Mo'ise, Attorney General, for the State. T. S. Crawford, for defendant and appellant.
   Voorhies, J.

The defendant was indicted, in the year 1856, for the murder of his wife, found guilty and sentenced to death. Having appealed to the Supreme Court, in session at Munroe, he succeeded in obtaining a reversal of this judgment; and the case was remanded for a new trial. 11 An. 607.

A new indictment for the same offence was preferred against him in the District Court. He then obtained a change of venue, was tried, again found guilty, and was sentenced to death.

We will now consider the questions of law presented by the numerous bills of exception, which the prisoner has taken to the rulings of the court below:

I. There is a complaint with regard to the service of the venire ; tho bill of exception states, “ that no list of the jury, who were to pass on his trial, had been delivered to the accused two entire days before that time.”

The record does not show that this party ever complained that an informal and irregular list of jurors were ever served upon him, nor does the District Attorney, in his brief, concede this point.

The Sheriff, in his return, states, that “ he served on the prisoner a certified list of the jury for the first week of the venire facias, who were liable to service as petit jurors.” It is true, the same bill of exception sets up as a matter of grievance, that the District Judge admitted the introduction of parol evidence, “ to prove that the list of jurors served on the accused, was made out after certain jurors had been excused.” Apart from the manifest inconsistency that wo find in this bill of exceptions, with regard to the fact of the service of the venire, we must confess our inability to see the practical effect of the second objection. There would be some meaning in it, had the prisoner rested his complaint upon the ground, that the list of jurors served upon him, was not such a one as the law contemplates. As he has not done this, we must overrule this bill of exception.

II. A juror by the name of G. W. Waugh was challenged for cause by the accused, on the ground that he had formed and expressed an opinion as to the guilt of the accused. The objection was overruled ; but it appears that the juror did not sit on the trial of this case.

This juror, being sworn on his voir dire, states : That he has formed and expressed an opinion as to the guilt or innocence of the prisoner ; that he has heard a good deal said about this case, the evidence of which, however, he has not heard; that, after hearing the evidence, he can give a fair and impartial verdict ; that he has heard the accused himself speak of the case; that he is of opinion that the accused is guilty ; and, finally, that he has no prejudice or opinion which will prevent him from doing impartial justice after having heard the testimony.

We will not disturb this ruling of the District Judge in this instance, for several reasons. Was the opinion of the juror based wholly upon rumor ? Or wholly upon the narrative of the accused himself? Or partly on both ? Now an opinion predicated upon rumor, when there is no bias or prejudice in the mind of the juror, is not a disqualification. On the other hand, if this opinion is based on the statement of the prisoner, the objection would seem to come more properly from the District Attorney.

The apparent hardship, in this case, consists in the fact, that the juror stated that he believed the prisoner guilty; but then, he does not say that his opinion is based on the declarations of the prisoner, nor on rumor. And, although from his answers, one or the orther, or perhaps both of these elements, must have presided in the formation of his opinion, there was clearly presented for adjudica^ tion, a question of fact, which the inferior court alone could decide. Was that opinion based upon rumor ? Was it based on the declarations of the prisoner ? Or was it the result of both ?

This was a matter of fact, which had to be weighed; and it is not made apparent by bill of exceptions, that in so doing, the District Judge violated any known rule of law applicable to the instance, or applied in its solution a ruling of doubtful applicability.

The jurisdiction of this court being limited to questions of law in criminal cases, it is obvious that we cannot review the action of the court below in this matter, without trespassing on the facts; and that is another reason why the ruling of the District Judge in refusing the challenge for cause of the juror, G. W. Waugh, should not be disturbed. 13 An. 491.

We may add that, as this juror did not sit in the case, and as it does not appear that the defendant thereby exhausted his peremptory challenges, we are unable to perceive the nature of the injury, which claims redress at our hands.

With regard to the other jurors challenged for cause, to wit, J. S. Bugg, Henry Maddox and B. S. Simms, it appears that their opinion was based wholly upon rumor, and that they were open to conviction. It is true that J. S. Bugg stated, in answer to the question: “ Would circumstantial evidence, different from what you have heard, change your opinion of the case”? “I think not.” But at the same time, he made the statement that “ he could judge of this case as of a case about which he had heard nothing, and formed no opinion.” The juror evidently misapprehended the purport of the question propounded to him relative to circumstantial evidence, the nature of which was probably unfamiliar to him.

It was, however, peculiarly within the province of the court below, to determine whether the facts elicited from the juror, on his voir dire, were such as to warrant the conclusion that the juror was or was not open to conviction ; and, if the accused was under the impression, that in so doing, an error or mistake of law had been committed to his detriment, it was incumbent upon him to present his grievance in a tangible form. As this bill of exception does not point out the error of law complained of, (and this remark applies to the challenge for cause of the other jurors,) we are exposed, in sustaining it, to review an opinion of the District Judge, which possibly may have been the solution of a mere question of fact, conceding the law to be as stated by the defendant’s counsel. Let us add that of these four jurors, the only one who sat in the case was Henry Maddox, who was clearly qualified to do so.

It is the duty of parties, in a criminal prosecution, to set up their grievances on appeal to this court, so that it can safely exercise its jurisdiction, without being exposed to violate the constitutional provision upon this subject. See the case of State v. Brunetto, 13 An. 45, and the authorities there quoted. See opinion of O. J. Merrick, in case of State v. Henderson, 13 An. 491.

III. The accused made a motion, in the court below, that the District Attorney be ordered to elect on which of the two indictments for the same offence, he would prosecute. No bill of exception was taken to the ruling of the District Judge, upon the rejection of this application.

Besides, the motion to elect can be exercised only with reference to the improper insertion of different counts in the same indictment. Wharton’s Criminal Law, p. 190, ed. 1852.

IV. The regular pannel of jurors having been set aside, on the application of the prisoner, he cannot now be listened to, when he contends that the bill of indictment preferred against him, should have been presented by the Grand Jury thus discharged.

V. The next ground of complaint is, that the prosecution originated before the Grand Jury, without previous preliminary investigation before a committing magistrate.

The statues regulating the arrest and commitment for crimes and misdemeanors, do not require a previous examination of the prisoner, in order to authorize the Grand Jury to inquire into the matter. Indeed, the discharge of the prisoner by the committing magistrate, would never be seriously opposed as precluding the action of the Grand Jury. Besides, it is the common law practice, and a practice invariably followed in this State, and never before questioned, that prosecutions may originate in the Grand Jury. Chitty Cr. L. p. 163.

VI. The defendant’s counsel urge that the reception of illegal evidence by the Grand Jury, vitiates the indictment. But it does not appear by bill of exception how the law has been violated in this respect, in the case at bar; nor in what respect the District Judge has misconstrued or misapplied the law. We have nothing to do with the statement of facts which we find in the record, on this branch of the case.

VII. The regular session of court for the parish of Madison, having been adjourned over for two weeks by the written order of the District Judge at chambers, and the jury of the first week ordered to attend accordingly, the prisoner challenged the array on the ground, that their term of service had expired by law. The District Oourt properly overruled this objection.

The court was not in session the first and second weeks. These jurors did not serve, or even attend court during that time; and the District Judge properly held that, in contemplation of law, the first week of the actual session of court, was that during which the jurors first enlisted had to attend court and serve iu that capacity.

YIII. The accused was not entitled to service of the list of talesmen ; this is not an open question. State v. Reeves, 11 An. 686.

IX. The Sheriff having summoned the talesmen out of the presence of the court, and when the court adjourned over from day to day, it is contended that the persons so summoned were not bystanders, and as such not liable to serve as jurors. The counsel states in his brief: “ On this point, I am aware that the later American decisions have greatly relaxed the English common rule, but contend that Louisiana has adopted the common law of England as it stood iu 1805, and that the late innovations on this well established principle of the common law, do not apply to this State.”

The rule is undoubtedly as laid down by the counsel; but it is obvious, that if the jury cannot be completed by summoning bystanders, recourse may be had to other persons not within the presence of the court. The bill of exceptions does not set this matter right before the court, and we are bound to presume, in the absence of proper evidence to the contrary, that the District Judge and the officers of court, did their duty on this occasion. If the Sheriff did not act with impartiality toward the accused, as the latter complains, that was a matter of fact which ought to have been submitted to the District Judge, and which rested in his sound discretion.

X. One of the talesmen, named S. L. Stone, a juror in this case, was not challenged for cause, although it appears that he was not qualified to serve. The court overruled the objection filed on that ground, by the defendant, to set aside the verdict of the jury. It is well settled that, when a juror can be challenged for cause, the right must be exercised before the juror is sworn ; and that a verdict cures the defect. No distinction is made by law, in that respect, between regular jurors and talesmen. Courts of justice cannot distinguish.

XI. The last bill of exceptions refers to the charge of the court to the jury. The counsel for the defence requested a charge to the effect: “ That a confession in a capital case, from the nature of the thing, is a very doubtful species of evidence, and should be received with great caution.” The District Judge refused to give this charge, on the ground that he had already given these instructions to the jury in his charge, in a less objectionable form. In this respect, we agree with him in laying down the law, that a free and voluntary confession by a person accused of a crime, is evidence against him; and it is with the jury to attach to a confession, that weight to which it is entitled.”

The District Judge having already charged, that in case the jury were satisfied of the insanity of the accused at the date of the commission of the deed, they must bring in a verdict of acquittal — had the right to decline giving the charge, asked by the prisoner’s counsel on the same subject-matter. The charge demanded was the substance of the charge already given, with the only difference that the former was stated in a manner calculated to mislead the jury.

We have had occasion during the progress of this investigation, to notice that this record contains an abundance of parol and documentary evidence ; and we take this opportunity to state, that inasmuch as the facts aré not within the province of this court in criminal prosecutions, it is the duty of the Clerks of the District Court to avoid' encumbering the transcripts, in such cases, with statements of facts. See opinion of C. J. Merrick, in the case of State v. Henderson, p. 491, 13 An., in which the following passage occurs :

It is apparent that inasmuch as the testimony is never taken down by the Clerk in criminal cases, that the record cannot be certified, as in civil cases, to contain all the evidence. This was known to the framers of the Constitution, when they conferred the appeal, and to the Legislature also when it authorized an appeal in criminal cases without giving bond. The Articles of the Code of Practice which gives cither party the right to require the Clerk to take down the testimony in civil cases and to require him to certify the same to the Supreme Court, are not applicable to appeals in criminal cases; and it seems torts as a consequence that the appeal cannot be dismissed, because the appellant did not do an impossible thing. C. P. 601, 896, 897.”

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

Merrick, C. J.,

dissenting. This case is of the greatest importance to the accused, as it involves nothing less than his life. As I differ entirely from the majority of the court on some points and concur on others, I shall proceed to consider the questions in the order in which they are presented by defendant’s brief.

At the outset it is proper to remark, that I do not think I am bound to be more technical than was the Attorney General in his argument in February last, or the District Attorney in his brief. I shall consider those questions which they have considered, and I shall not deprive the accused of the benefit of the discussion of any question which the State admits to be raised by the bills of exception.

I have had sufficient experience as an advocate to know that it is not possible in the hurry of a criminal trial to draft bills of exception with a certainty which, shall exclude all possible inferences, or to use the language of Lord Goke, with a certainty to a certain intent in every particular. In my opinion it is sufficient, if the bill informs the Appellate Court with reasonable certainty of the supposed error. 4 An. 505.

The District Judge very properly, in my opinion, certified the facts needed to the full explanation of the question of law raised before him. Such is the usual mode of raising questions of law, and is the mode pointed out by this court in the case of the State v. Brown, just cited. 4 An. 505.

There cannot be such a thing as a question of law pending before a judicial tribunal wholly disconnected with facts. The Legislature may so deal with abstract legal propositions; but courts of justice concern themselves alone in applying legal principles to facts. Without facts they have no jurisdiction. The Court of Error, however, has the facts already found by the inferior jurisdiction, either by a special verdict, a statement of facts, or bills of exceptions, or the proceedings themselves, as shown by the record. The duty of the Court ot Error is then, only to consider what law is applicable to a given state of facts already ascertained by the inferior tribunal.

I discover, therefore, nothing improper in the bills of exception which have detailed the facts necessary to understand the ruling of the District Court upon such points. On the contrary, I think the bills of exception would have been defective without them. The Constitution gives the accused a right of appeal on questions of law, and as a consequence the means of spreading those questions upon the record.

In 1856, the accused having been convicted of the crime of murder upon another indictment, prosecuted an appeal from the District Court for the Parish of Franklin to this court, then sitting at Monroe. The judgment of the lower court was reversed, and the case remanded for a now trial. 11 An. 607.

On the return of the case to the lower court, a new indictment was presented in the Parish of Franklin for the same offence. The venue was subsequently changed to the Parish of Madison. A second trial has also resulted in a judgment sentencing the accused to undergo the penalty of death. Hence the present appeal.

The record presents nine bills of exception taken to the proceedings in the District Court. We will now proceed to consider the questions of law raised in this case.

I. The second indictment was found at the October term, 1856. Thereupon the accused by his counsel, moved the court to compel the State to elect under which indictment it would proceed. This motion was overruled. But it does not appear that any bill of exception was taken to this decision. As the present proceeding and conviction is under the second indictment, it would seem that a bill of exception was required to make the first indictment a part of the second record. However, this may be, the accused in this instance has suffered no embarrassment from the first indictment, for it seems to have been dropped. Moreover, it is said by Mr. Wheaton, “ that the pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause.” Wheaton Orim. p. 189, ed. 1852. Butler, justice, in King v. Shetton, 1 Douglass, 240. King v. Wynn, 2 East. R. 226. 3 Burrows, 1668. 3 Cooke. Charles 147, Whitpole’s case.

II. The accused then pleaded several matters in abatement, and caused the District Judge to certify the fact in a bill of exceptions.

First. It was pleaded that the grand jury who found the bill were not legally impannelled, for the reason that a grand jury had been impannelled on the first day of the term, and the prisoner alleges they were improperly discharged and a new grand jury impannelled. But it appears from the bill of exception, that the first venire, including the grand jury, was set aside on the challenge and objection of the accused and some others to the array. He cannot now be permitted to complain of the order of the judgment directing a new venire as it was the consequence of his own act.

Second and Third. It was objected that the pretended grand jury originated this prosecution without any previous charge before a magistrate, or preliminary examination at which the accused could be heard, or where he could confront the witnesses. On this branch of the so called plea, the Judge a quo makes the following statement, viz: It was also proven that there had been no previous prosecution of the accused or any previous or preliminary investigation of the offence charged in this indictment, prior to the investigation by the grand jury, and that this prosecution originated by the District Attorney, Wade H. Ilowgh, preparing the bill of indictment, and indorsing thereon the names of the witnesses on the part of the State, and submitting said bill with the indorsement of the names of said witnesses thereon, and that the testimony given before the jury of inquest at the time the inquest on the body of Patsy Bunger, deceased, by M. C. Jones, Justice of the Peace, acting as Coroner, -which proceedings in holding said inquest and the evidence given before said jury of inquest was before the grand jury when they found this indictment, are annexed hereto and made a part of this bill of exceptions, marked 0.” The finding of the jury of inquest was, that Patsy Banger came to her death by wounds inflicted by the prisoner with malice aforethought. It does not, therefore, appear to be a case where the proceeding strictly originated with the grand jury. But I have no hesitation in saying that under our law, bills may be originated before the grand jury without any previous proceeding before committing magistrates. This right of the grand jury is not only derived from the common law, but it has been recognized and sanctioned by those numerous statutes, which the lawgiver has required the District Judge at each jury term of the court to be given in charge to the grand jury.

At common law, as well as under the former practice of our own courts, the presentment was a very common mode of originating prosecutions. Chitty in his work on Criminal Law, p. 163 ,says : Presentment in its limited sense differs only from an indictment, in being taken in the first instance by the grand jury, of some offence within their own knowledge and into which it is their duty to inquire. After the presentment has been delivered into court by the grand inquest, an indictment is framed upon it by the officer of the court, for it is regarded merely as instructions for an indictment to which the party accused must answer.”

At common law there was so little necessity for an examination of the accused previous to the finding of the indictment that a collateral verdict of twelve men was often sufficient to put the party upon his trial without any indictment at all. Thus, the finding of the jury under a Coroner’s inquest in the case of a violent death, in which it was found that the deceased came to her death by wounds or injuries inflicted by the accused with malice aforethought, might stand in the placo of the indictment, and the party might be arraigned thereon. 1 Chitty, 163. See other cases verbo Indictment. 3 Bacon’s Abridg. p. 93.

If the grand jury have no power to originate prosecutions, the giving of particular statutes in charge to them is an idle ceremony, and the Legislature has done a vain thing in requiring such charge from the District Judge.

I do not perceive the danger apprehended by counsel in leaving this power with the grand jury. They are drawn from the body of the people, and they cannot act without the assistance of the District Attorney or some officer performing his duties. The accused has, therefore, but little to apprehend from malicious prosecutions in this form, and he is fjnally shielded by a trial by a petty jury, and further protected by a power to change the venue in cases of popular prejudice.

The Constitution guarantees to the accused that he shall not be prosecuted except upon an indictment or information, and that he shall have a speedy public trial by an impartial jury of the vicinage and the right of meeting the witnesses face to face. But this does not entitle the accused to the right to a cross examination of the witnesses before the grand jury, or to a previous examination of them in the event he be not arrested before they are sent to the grand jury. Under Art. 103 of the Constitution, the prosecution is not formally commenced until the indictment is fonnd or the information is filed. Of course these remarks are not intended to apply to the rights of the accused, at the preliminary examinations, nor of his rights under a writ of habeas corpus.

Fourth. It is urged that the indictment ought to have been quashed because it is said that it was found upon the testimony taken at the Coroner’s inquest. We have copied into tMs opinion already the facts found by the District Judge on this part of the case. And by a careful examination of them, it will be seen, as I think, that they have relation to the manner in which the prosecution originated. The bill of exception does not show that it was not found upon the testimony of the witnesses whose names were indorsed upon the bill, nor that the Coroner’s inquest and testimony taken before him were considered as proof of any fact by the jury when they found the indictment. I am not prepared to say that it vitiated the indictment because the District Attorney laid the inquest and testimony, if such be the case, before the jury, to induce them to send for the witnesses, provided the bill was afterwards found upon the testimony of the witnesses, nor that an indictment ought to be quashed because the foreman of a grand jury should have the testimony of the witnesses taken on a preliminary examination, or even the Coroner’s inquest before him to assist Mm in conducting'the examination of the same witnesses before the grand jury. The presumption of law is, that the grand jury have acted properly in the finding of a bill of indictment, and as the law has made no provision for the taking of bills of exception to proceedings before them, it is but reasonable to require the party who objects to their finding, to show that the indictment is found upon illegal aud insufficient proof. This is not, as I think, clearly shown by the bill of exception in this case. What is therein stated is not wholly inconsistant with a proper finding by the grand jury upon the testimony of the witnesses.

III. The regular session of the court for the Parish of Madison commenced by law on the 4th Monday, viz : the 25th day of October. The court was adjourned over by a written order from the Judge at chambersfor two weeks, viz : to Monday the 8th of November, no other term intervening. The jury summoned for the first and second week of the term, it seems were required to be in attendance. The District Judge being present on the 8th of November, the accused moved the court by way of challenge to the array, that the veuire summoned for the first and second weeks of the court should be set aside, because the court had not power to hold over the jurors to a week for which they had not been summoned. The adjournment of the court did not make it an adjourned term. The October term of the court might have continued until the fourth Monday of November. The continuances of the court over for this period did not make two terms. See Phillips Rev. Stat. p. 248, sec. 53. I understand an adjourned term of the court to be one where, at the adjournment of a regular term, the Judge, satisfied -of its necessity, orders a term to be held after a term has been hold in another parish, and requires the proper notices to be given. A special term may be ordered at chambers, and held also after proper publication at any time not interfering with any legal term. See Phil. Rev. Stat. 284, ^49, 51. It is true, at the adjourned or special terms, if needed, juries ought to be summoned, but this is not required at any adjournment at a regular term. It is also true, that the Statute says that the jury shall be discharged at the end of the week at which they are summoned, and it urged that the District Judge had no power to hold the jurors over to a day after their week for which they were summoned had expired. It was in the power of the District Judge, had he been present on the first day of the term, to compel the attendance of the jurors at the day at which the court adjourned, by causing them to be summoned on a special venire, as this power is expressly reserved to the District Judge by the Act which provides for the attendance of the jurors. See Act 1857, p. 180. And I am not prepared to say, that the jury, from whom some service is required, (and not a mere idle attendance,) may not be .held to serve out the term for which they were summoned after the arrival of the Judge, where the court has been adjourned over by a special order to the Sheriff. Eor this purpose, the day to which the court was adjourned, might be taken as the first day of the term; for on that day the grand jury was to be formed, and it was in fact the first day at which the jury could perform any service.

IT. It is next objected, that the accused was compelled to go to trial before the list of the jury had been served upon him who were to pass upon his trial.

The State relies upon a return of the Sheriff made upon the venire facias for the first week of the term, and parol proof to show that a list was really served upon the accused.

But if the whole venire had been served, which is not pretended, it would have been illegal. State v. Howell, 3 An. 52. State v. Bunger, 11 An. 607. Acts 1857, p. 197; 1858, p. 170.

The venire facias had its proper return to it previous to this second return improperly entered thereon. The first return was responsive to the command of the writ. The second pretended return had no relation thereto, and was not of a matter contained therein.

Hence, the suppsed return of the writ of venire facias, which contained the grand jurors, those excused and those not served, must stand precisely as if made upon a blank piece of paper.

In order that it may be better understood I give the second return in full. It is in these words, viz:

'• Received on the 8th day of November, 1858, a certified list of the jury for the first week of the within venire facias, who are liable to service as petit jurors for the adjourned term of the Tenth Judicial District Court of the State of Louisiana, of the Parish of Madison, commencing on the 8th day of November, 1858, and delivered the same to William, G. Hunger, in the prison of the Parish of Madison, on the said 8th day of November, 1858. Madison Parish, La., Nov. 11th, 1858. (Signed,) E. M. Dawson, per A. D. Ramsey, deputy.”

Here it is seen, that the Sheriff only served a list of such persons upon the accused as were “ liable to service as petit jurors for the adjourned term of the court.” Who they were does not appear of record in this case. We have only of record the opinion of the Sheriff, that they were the proper persons and the right number.

Now, is this sufficient? In my opinion it is clearly defective. The law requires the Sheriff to make service of petition and citation. Will the Sheriff's re-return supply either ? Can a record be made up of Sheriff’s returns ? Here the accused by a bill of exception in due form excepts to going to trial until the list of jurors are served upon him. We look into the record to see if there is any evidence of such service, and we find nothing but the above Sheriff’s return and the parol testimony of the clerk (also excepted to) to prove this important fact. The District Attorney in his brief on this point says: “ It does not appear of record that the defendant denied service of a list of the jury which was to pass upon his case. The evidence, (Trans, p. 30), the clerk, F. M. Couch’s evidence (Trans, p. 31) and the Sheriff’s return, (Trans, p. 33), go to show conclusively that there was a list of the jury made out who were to pass upon defendant; that he was served with the same, and in sufficient time for the trial. It is fair to presume that defendant was in possession of said list, although he did not produce the same in court.” He adds, “ To say the most of this matter, though it was simply one to have brought up the question of continuance; and the Supreme Court has often decided that that was a matter in the discretion of the lower court, and should not be reviewed by this court.”

It is not, therefore, pretended by the State, that this record contains any list of jurors served upon the accused. The facts embodied in the bill of exception taken by the accused, appear to have been added for the benefit of the State. This bill in these words :

“ Be it remembered, that when this case was called by the court, on Thursday, the 11th day of November, 1858, the accused, by his attorney, objected to the trial being proceeded with, and the jury empannelled at this time, for the reason that there had been no service of the list of the jury which are to pass on his trial, delivered to him two entire days before this time. On the trial of which objection, the vernire facias, with the return of the Sheriff of the summoning of some of the jurors, and his failure to summon others, and the return of the Deputy Sheriff of the manner of service of the jury list, endorsed on the vernire fa-cias by A. D. Ramsay, Deputy Sheriff, on the 11th November, 1858, were offered and received in evidence; said document being marked 1 A’ aud attached hereto and made a part of this bill of exceptions. Also, extract from the minutes of this court, marked ‘ B’ which is annexed hereto, and made a part hereof; also, the evidence of F. M. Couch, Clerk of this court, A. D. Ramsey and T. M. Dawson, taken down at the time by the direction of the honorable the presiding Judge of this court, to serve as a statement of facts, which evidence is annexed hereto and made a part of this bill of exceptions, marked ‘ C,’ and the oath of A. D. Ramsey, Deputy Sheriff, marked 1 D.’ ”

The testimony of Ramsey and Dawson referred to in the bill, relates entirely to the appointment of the Deputy Sheriff, which was verbal only.

The testimony of the Clerk excepted to and referred to in the foregoing bill, was, that “ he thinks the copy of jury list was made after the above named (viz, six) jurors had been excused ; states that the list was made out and delivered to the Sheriff on Monday, the 8th November, 1858.”

“ Examined by defendant” :

“ States, according to his best recollection, the list was made after the minutes of the court for Monday had been written up and the jurors excused.”

This mode of proving a fact which ought to appear of record, appears to me wholly inadmissible.

The law requires that the accused “ shall have a copy of the indictment and a list of the jury which are to pass upon his trial, to be delivered to him at least two entire days before the trial.”

Where this formality is not waived, it must appear of record, because required by the statute, and the omission cannot be supplied by parol proof, much less the uncertain evidence in this record.

ft is not a question of fact, whether service has or has not been made, to be decided solely by the District Judge, but a requirement of the law which may be examined by the appellate court. Phillips Dig. 162, sec. 18.

Y. The entire panel having been exhausted in this case, (two jurors only having been sworn), the accused claimed that the list of talesmen should be served on him, two entire days, in order that he might have time to prepare his challenges. This right being refused, the accused excepted. The court did not err in this. See State v. Reves, 11 An. 686.

TI. It appears that the talesman were summoned from the town of Richmond and other parts of the parish, and not in the presence of the coart. They were objected to by the prisoner on the following grounds, viz : 1st, that the court was without power to summon jurors for a particular case ; and, 2d, that the officer acted illegally and partially, having summoned said jurors, during the adjournment and out of the presence of the court.

The objections of the prisoner having been overruled, he excepted.

It is well known, that in the country parishes, where the population is sparse, that it is frequently impossible to form a jury tales de circumstantibus. There then must be power to summon jurors beyond the precincts of the court, or there will be a failure of justice. The latter cannot happen. The more regular way would be, (where there were not any bystanders in court from whom the remainder of the panel could be formed,) to enter an order on the minutes, directing the Sheriff to summon a given number of jurors to serve as talesmen in the case named, and that a venire issue to him to summon them instanter. See Act of 1857, p. 180 ; 3d vol. Black. 364.

But I am not prepared to say that a jury summoned from the parish at large, by the Sheriff, under the oral order of the Judge, would not furnish competent talesmen when once within the precincts of the court. 5 An. 315.

It may be said that the Sheriff or his deputies may act with partiality. This might also happen in the presence of the court. On' a sufficient showing, no doubt, the District Court might direct the proper officers to open the jury box and draw therefrom a special venire of talesmen not to exceed thirty-two, to be summoned instanter, and so on, until a jury should be completed, the names of the jurors so drawn being immediately returned to the box.

VII. Exceptions were taken as on the former trial, to the ruling of the Judge a quo, upon the challenge for cause. The following appears to me to be well taken : George W. Waugh, a juror called to the book and sworn on his voir dire, answered:

1st question by defendant. Have you formed and expressed an opinion relating to the guilt or innocence of the prisoner ?

Answer. I have formed and expressed an opinion.

Int. 2d. Have you heard a good deal said about the ease ?

Answer. I have.

Question by the State.

1st. Have you heard any evidence in the case ? ■

Answer. I have not.

2d. After hearing the evidence, could you give a fair and impartial verdict ?

Answer’. I could.

Question by defendant. Have you heard the facts of the case ?

Answer. I heard Bunger, the accused, speak of them himself. /f' ^

2d interrogatory by defendant. Is it now your opinion that the accused i|-" v guilty of the crime of which he is charged ? f

Answer. It is. £ Aa

Question by the court. ¡¶ j

1st. Have you an opinion or prejudice which will prevent you fromltlolng im-f^-partial justice after you shall have heard the the testimony. ^ ,

■ Answer. I have none. <\

It is quite evident the juror did not stand as one who had only heard rumors V in regard to the case. He had heard Bunger speak of the facts of the case himself, and nevertheless was of the opinion, that the accused was guilty. He had locked up m liis breast, important evidence and lie was beyond the reacli of cross-examination.

Persons governed by prejudice are mostly unaware of its extent, and lienee a person who has formed his opinions from hearing the witnesses or conversations with the accused, ought to be excluded, notwithstanding his own opinion of his capacity to render a just verdict.

Another juror stated, that he thought that circumstantial evidence different from what lie had heard, would not change Ms opinion. In these two cases, the accused ought not to have been compelled to exercise a peremptory challenge to set aside the the jurors. See State v. Brette, 6 An. 656 ; State v. George, 11 An. 607 ; 8 Rob. 535 ; State v. Brown, 4 An. 505.

The law gives the accused a right to twelve peremptory challenges, and lie is not bound to use one of them, so long as he has a valid challenge for cause. Any other rulo would embarrass the accused and his peremptory challenges might thus be exhausted upon jurors against whom he had sufficient challenges for cause. As the accused must except, when the court decides a point against him, he is not obliged to wait in order to see whether he will exhaust all his peremptory challenges or not, before he tenders his bill. In a case like the present, where almost the whole jury were to be formed from talesmen, it was perhaps of the utmost importance to the prisoner, to husband his peremptory challenges.

The District Judge certified the facts as to the jurors, precisely as it was done in the cases of the State v. George, 8 Rob. 537 ; State v. Brown, 4 An. 505; and State v. Banger, 11 An. 607. This court acted upon the statement in those cases, and there is no reason why a different rule should be adopted now.

It is true the District Court passed upon a question of fact when it found the jurors competent, but at the same time it applied a rule of law which the accused has the right to have reconsidered in this court; precisely as he has of the Judge's charge to the jury.

VIII. A bill of exception was also taken to the charge of the Judge to the jury, both as to the matters given in charge by him of his own accord, and his refusal to charge on certain points as requested.

It is objected that the District Judge did not inform the jury what constituted the crime of murder.

If the counsel of both the State and the accused were agreed on that point, and had explained the same to the jury, the charge on that branch of the case would have been superfluous. ¥e do not find in the charge the exact language mentioned in the brief of defendant’s counsel. It might have been, perhaps, more guarded, but taken together, I do not discover that it makes the killing the absolute test of the offence, as supposed by defendant’s counsel. The jury were informed, that if the killing were wilful, that malice is implied, and that the absence of malice must be accounted for to the satisfaction of the jury. If there were error in this portion of the charge, it did not prejudice the prisoner. For the jurors might have been informed, that if they found that the homicide was commited by the accused, deliberately or without adequate provocation, the law implied malice, and it was incumbent upon the prisoner to show, from evidence or by inference from the circumstances of the case, that the offence was of a mitigated character, and did not amount to murder, and they might have been informed further, that no affront by words, or gestures, or former quarrels, (where any time has intervened,) are a sufficient provocation to extenuate the killing from murder to manslaughter. 3 Greenleaf’s Ev., p. 132, sec. 144; 4 Black. 200.

The counsel for the accused requested the court to charge the jury, that “ a confession of a capital crime, from tlic nature of the thing, is a very doubtful species of evidence, and should be received with great caution.”

This charge was refused by the Judge, and the prisoner excepted. The charge requested is in the language of a respectable writer on criminal law. But I think it was not error to withhold it. For under the same circumstances, the confession of the party might make conclusive proof, whilst an uncorroborated confession, in the absence of facts, showing that a crime had been committed by any one, might not be entitled to any serious consideration whatever.

The same author, quoted by the counsel for the accused in the bill of exception, says in another place, that: “ A free and voluntary confession by a person accused of an offence, whether made before his apprehension or after ; whether on a judicial examination or after commitment; whether reduced to writing or not; in short, any voluntary confession made by the defendant to any person, at any time or place, is strong evidence against him, and, if satisfactorily proved, sufficient to convict according to the English rule, without any corroborating circumstances.” Wheaton, Orim. Law, p. 252, ed. 1852.

The other matters which the prisoner requested to be given in charge to the jury, it seems, were in fact given in another form.

Being satisfied that the judgment is clearly erroneous, I think the case ought to be remanded for a new trial.

Laud, J., concurs in this opinion.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Andrew Matta v. Henry Henderson.
    To maintain an action for the rescission of a sale of property of which the vendeo is in possession, it is necessary there should have t?een an offer to return the property, made previous to the institution of the suit.
    There must bean express allegation that the vendor has been disquieted in his possession, or has just reason to fear that he will be disquieted, to entitle the vendee to demand that security be givon by the vendor against eviction.
    from the District Court of the Parish of West Feliciana, Haralson, J.

      A. M. Bunn, for plaintiff and appellant. S. J. Powell, and Collins <& Lealce, for defendant.
   Merrick, C. J.

The plaintiff alleges that the defendant has obtained au order of seizure and sale against him, to sell the one undivided third of the Elm Park plantation, in the parish of West Peliciaua, and a number, say ninety-four negroes, described in the act annexed to the petition; that the proceedings in the order of seizure and sale are illegal; that the said Henderson sold to petitioner, in consideration of $26,769 50, the one undivided third of the property described in the act of sale, on the 20th day of October, 1854, with full warranty of title against all persons whomsoever, and all incumbrances of every kind ; that petitioner paid on the price of said sale, (at the times set out in his petition,) $13,169 50 ; that petitioner is not bound to pay the residue of said price, but is entitled to recover principal, interest and damages, on what has been paid ; that on the 2d day of June, 1856, the Supreme Court decided, in the case of the Heirs of Stephen Henderson v. Rost & Montgomery (the decree in which case is an-hexed to tlie petition) ; that petitioner lias no valid title to said slaves, and derived none from his vendor, Henry Henderson ; that petitioner is advised, and believes that the failure of said Henderson to make good his said title to petitioner, entitles him to the annulling of the contract or a reduction of the price. He prays for an injunction, and upon the trial, that he have judgment cancelling the notes upon which the order of seizure and sale issued, and judgment for the amount of the payments and interest, inasmuch as the land is without value unaccompanied with the slaves, and for ten thousand dollars damages, and for general relief.

The order of seizure and sale issued upon three promissory notes, dated 20th of October, 1854, for $2,333 33J- each, with eight per cent, interest from date, and payable the 1st days of April 1856,1851 and 1858.

A motion having been made to dissolve the injunction on the face of the papers and for the insufficiency of the bond, was sustained, and defendant decreed t' pay five per cent, damages on the amount enjoined, and five hundred dollars special damages for attorney’s fees.

The case of the Heirs of Stephen Henderson v. Rost & Montgomery, Executors, is reported in 11 An. 541.

The appellant contends, that it is disclosed by his petition, that Henderson sold to the plaintiff negroes which belonged to others; negroes who were not slaves, and in whom there was not a saleable interest, and the sale of which was contra bonos mores.

Defendant replies, the suit of Henderson's heirs is res inter alios acta, and the plaintiff seeks to cancel the notes and recover back the money he has paid as the price of the property,' 'and also keep the possession and ownership of the property.

It does not appear from the record in this case, that the decree rendered in the suit of Henderson’s Heirs against Rost <& Montgomery, can have any influence on the rights of the plaintiff in this case. For it does not appear that either the plaintiff or Henry Henderson was a party to that suit, nor that the suit was instituted to procure the emancipation of the negroes previous to the sale; nor that the negroes sold were entitled to emancipation under Henderson’s will and the decree of the Supreme Court. But if it be conceded that the negroes are the same, and that the decree does not place certain or all of them in the condition of static liberi, still the plaintiff is in the undisturbed possession and enjoyment of the property sold, and not entitled to an action of warranty until he has been evicted.

But if plaintiff's demand be considered as an action of rescission, it is defective, because he has been several years in possession, and moreover there has been no tender of the property or offer to return the same to the defendant previous to the institution of the suit, and plaintiff subjects himself to the objection raised by defendant’s counsel, of keeping the property and demanding the return of the price. 6 Rob. 472 ; 7 N. S. 95.

The only serious question raised by appellant, is whether, under the allegations of the petition and the prayer for general relief, he may not be entitled to compel the defendant to give security against eviction.

But, on examining the petition, we do not find any allegation that the plaintiff has been disquieted in his possession, or that he has any just reason to fear that he should be disquieted by any one, on account of the decree in the case of Henderson’s Heirs against Rost & Montgomery.

In the absence of such allegation, we do not think an injunction, which, to some extent, is governed by strict law, ought to be maintained.

The motion to dissolve, rests upon the insufficiency of the allegations of plaintiff’s petition, and the decree sustaining the motion may, perhaps, be a bar to any future action of the plaintiff for causes of action now existing, if such he have. We think the judgment ought to have been one of nonsuit upon the petition.

It is, therefore, ordered, adjudged and decreed by the court, that the decree of the lower court be so amended, as to dismiss the petition of the said Andrew Malta, as in case of a nonsuit; and that said judgment so amended, be affirmed ; the defendant, Henry Henderson, paying the costs of the appeal.


author: Cole, J. Merrick, O. J.,

text:
    A. Brother, Syndic of P. Conrey, Jr., v. New Orleans Canal and Banking Company.
    Article 1983 of the Civil Code, which obliges a creditor who has been preferred, to share the loss rata-bly with the complaining creditors, gives the right to compel them so to do, only to those creditors whose debts were either due or would fall duo before that of which the payment was anticipated by the debtor in insolvent circumstances.
    In order to succeed in a suit to make the preferred creditor contribute ratably, the actors must specially allege the nature of their debts, and prove themselves to have been creditors within the meaning of the Article,
    The syndic of an insolvent cannot bring such a suit.
    A PPEAL from the Third District Court of New Orleans, Kennedy, J.
    XjL Logan Hunton and Singleton, for plaintiff and appellant. E. A. Bradford, for defendant.
   Cole, J.

Peter Conrey, Jr., made a judicial surrender of his property to his creditors on the 7th of November, 1851, and Alexander Brother, as syndic of the creditors instituted the present suit on the 28th of April, 1852.

The gravamen of the suit is, that Conrey, on the 8th of July, 1851, being then in a condition of actual but not declared insolvency, transferred to the Canal and Banking Co., a note of R. W. Montgomery, the payment whereof Marshall <& James had assumed, for $17,666 66, due at twelve months from the 8th July, 1851, and other notes amounting together to $6,905 92, in payment of liis two acceptances, for $10,000 each, due, one on the 18th and the other on the 28th of July, 1851. The original petition alledged that when this anticipated payment was made, the Bank knew of the actual insolvency of Conrey; that the transfer was a fraudulent preferment of the Bank, and a fraud on the rights of the other creditors. The amended petition avers, that it was intended, both by the Bank and Conrey, to make an unlawful payment, and to give an unlawful and unjust preference ; and it also alledges it to have been an anticipated payment that gave an unjust and illegal preference, to the injury of various creditors, whose debts fell due and became payable before the two acceptances.

The amended petition prayed that the Bank might be condemned to pay the syndic $20,000, with interest, to be distributed ratably among the ordinary creditors of Conrey, and for general relief.

The defendants in answer, admit that they discounted the paper in question for P. Conrey, Jr., and that the proceeds of the discount were applied by him to the payment of his acceptances, then held by them for $20,000, but aver that the transaction was made on their part in good faith, under the full belief that Conrey was solvent, and without any view whatever to obtain any preference over other creditors, and deny especially all the charges of fraud or preference made by the plaintiff.

The District Judge referred this cause to a sjoecial jury of merchants, who returned the following verdict on the 18th February, 1851:

“ We, the jury, find a special verdict as follows :

“ 1. That no evidence has been furnished which proves a knowledge of Conrey's insolvency on the part of the Canal Bank on the 8th July, 1851.

“ 2. That it was the understanding on the part of the Bank that the proceeds of the discount of the 8th of July, 1851, should, in part, be applied to the extin-guishment of his unmatured obligations, and that the proceeds were so applied on that day.

“ 3. That we are of the opinion he (Conrey) was insolvent on the 8th July, 1851.”

On motion of the plaintiff’s counsel, this verdict was ordered by the court to be recorded, and on the 20th February, 1851, the plaintiff “moved the court to enter up judgment for plaintiff according to law, upon the special verdict of the jury rendered herein.”

The defendants thereupon filed a peremptory exception, founded on law, to the amended petition, on the grouud that it was not competent to the plaintiff, in his alledged capacity as syndic of the creditors of Peter Conrey, Jr., to have and maintain any action against the defendants for the causes set forth in his amended petition.

This exception was sustained by the District Court, and a final judgment was entered for the defendants. Plaintiff has appealed.

It appears to us, that the court did not err. Article 1983 of the Civil Code provides that, “ If a debtor, in insolvent circumstances, shall anticipate the payment of a debt not yet payable, and shall, to the injury of the creditors whose debts were either then due, or would fall due before that of which he anticipated the payment, this shall be deemed to have been done in fraud of the creditors, and the creditor so preferred, shall be obliged to share the loss ratably with the complaining creditors, each creditor, however, preserving the right of mortgage or privilege, if any, which his original debt gave him by law.”

This Article establishes that the anticipated payment must be an injury to creditors whose debts were either then due or would fall due before that of which the payment was anticipated. If there are no creditors of this character, there can be no action. If there are, then they, and not the mass of the creditors derive benefit from the suit against the creditor paid by anticipation. In order to succeed in a suit to make the preferred creditor contribute ratably, the actors must specially allege the nature of their debts, and prove themselves to have been creditors at the time of the preferred payment, and also at the time of instituting their action. The syndic not having any greater rights than the creditors they represent, must make these allegations, if such right of action can be supposed to appertain to him, and also establish the same to be true.

As this action belongs to a certain class of creditors and is their special prerogative, and is enacted for their peculiar benefit on the ground that they only are injured, it can therefore be either tacitly or directly waived. There being no law authorizing the other creditors to avail themselves of this action, when the particular class have declined it, the syndic cannot therefore exercise it.

The amount paid to the preferred creditor is no part of the common assets, for the preferred creditor is only liable to a particular class of creditors, and that ratably. If the amount of the debt paid to the preferred creditor was ¡$20,000, and that due to the class of creditors injured thereby $7000, the latter could not at most, get more than the total of their claims, so that there would remain a large balance belonging to the preferred creditor, which could not be touched by the other creditors. The syndic is not entitled, as he has asked in this case, to have the whole amount, or indeed, any part of the amount paid to the preferred creditor, brought into the common mass to be distributed ratably among the ordinary creditors.

It is true, that claims upon which there are privileges are tried in concurso with those against the insolvent which are of an ordinary nature, but in such case if the amount of the property of the insolvent upon which there are privileged claims exceeds that of the latter, the difference goes into the general mass of assets. By Article 1983, however, if the amount of the preferred claim exceeds that due the class of injured creditors, the excess does not go into the common mass, but is retained by the preferred creditor. So there would be no wisdom on the part of the syndic in putting the estate of the insolvent to the risk of paying costs and attorney’s foes by instituting suit against the preferred creditor, when neither the whole or any part thereof can enter into the mass and be enjoyed by all the creditors.

The principal reason, perhaps, that might be given for the right of the syndic to sue is, that if the creditors injured decline suing, and the syndic sues and succeeds in the action, if the preferred creditors are paid in whole or in part, the other creditors would be benefited, because the preferred creditors would either draw no dividends at all, or not so large ones from the common mass, so that there would be a larger amount of money left for distribution among the mass of the creditors.

Such an interest as this cannot, however, give the right of action, and the law has left it to the volition of the preferred creditors, deeming the motives of self-interest to be sufficient to prompt them to institute the action, if there be any reasonable ground to apprehend success.

The syndic is the representative of the mass, and not of any particular creditor or class of creditors, so far as relates to their special interests. Sess. Acts, 1855, p. 437. § 28. Decuir v. Veazey et al, 8 An. p. 453. Campbell v. Slidell, 5 An. 274. Boulay Paty, 1 Banqueroutes et Faillites, 430, § 322, and notes to Article 528, Code de Commerce, in Sirey’s Cinq Codes Annotés.

As this case is decided upon the peremptory exception, it is unnecessary to decide at present whether the presumption of fraud, as declared in Article 1983 of the Civil Code can be rebutted by evidence.

Judgment affirmed, with costs.

Merrick, O. J.,

dissenting. I am of the opinion that the syndic was the proper person to bring this suit. Our law differs in this respect from the Code de Commerce, Art. 528. See Arts. 1965, 1988, 1972, 1989, C. C. The decisions are uniform that an individual creditor cannot bring the revocatory action after the surrender, and we have just decided the same in the case of Hart against Goldsmith, Haber & Co. 3 M. R. 276.

It is no objection to the action that the fund when recovered may be distributed among particular creditors. Does not that almost always happen when there are judicial mortgages, and property is recovered.under the actio pavliam?

The presumption, I think, established by Article 1983, is juris et de jure. It says the anticipated payment shall be deesied to have been done in fraud of creditors. Art. 2266 declares that, “legal presumption dispenses with all other proof in favor of him for whom it exists.”

“No proof is admitted against the presumption of law, when on the strength of that presumption it annuls certain acts, or refuses a judicial action unless it has reserved the contrary proof and saving what will be said on the judicial confession.”

No reservation is made in the article in question.

The injury to the creditors appears from the fact that, at the time this anticipated payment was made Conrey’s paper had been protested in New York for a large amount, and this to the knowledge of the officers of the bank.

I think judgment on the verdict of the jury ought to have been rendered in favor of the plaintiff.

I/and, J., concurred in this opinion.


author: Voorhies, J.

text:
    J. Bogereau v. Guéringer & Co.
    The liability of a partner to a third person is not increased by the fact, that an individual debt of his has been assumed by the partnership of which he is a member.
    A partner cannot be made liable on a note endorsed by his co-partner with the social name, after the dissolution of the partnership, unless it is shown that he was benefited by the transaction, or authorized the endorsement.
    from the Fifth District Court of New Orleans, Eggleston, J.

      J. & E. Bermudez and E. Filleid, for plaintiff and appellant. C. Roselius and P. A. Fueros, for defendants.
   Voorhies, J.

The plaintiff sues the defendants, P. U. Guéringer and F. N. Guéringer, to recover from them in solido, as partners of the commercial firm of P. TJ. Guéringer & Co., the amount of a promissory note of the tenor following : @10,000. New York, August 20th, 1855.

Twelve months after date, I promise to pay to the order of P. U. Guéringer & Co., ten thousand dollars, value received. Payable 697, Broadway.

(Signed) P. U. Guéringer.

(Endorsed) P. U. Guéringer & Co.”

One of the defendants, P. U. Guéringer, excepted to the plaintiff’s demand, on the ground that the latter had already obtained a judgment against him for the same cause of action. It was contended on the other hand, that the plea of res judicata could not be set up in this instance, because the object of this suit is to make the party liable as a member of the firm, by virtue of the endorsement, whilst the judgment'-which has been rendered against him related to his individual liability as drawer of the note. The District Judge maintained the plea, and dismissed the suit as against P. TI. Guéringer.

There is no doubt that this defendant is bound in solido, individually and as a partner, for the whole amount of the note sued on ; but at all events, he cannot be called upon twice to pay the amount in controversy. A partner is individually responsible for all the debts of the partnership ; but his liability is not increased from the fact that an individual debt of his has been assumed by the partnership of which he is a member.

The plaintiff occupies a somewhat inconsistent position in this matter. He alleges that this is a debt for which P. U. Guéringer is liable individually as maker, and as partner of the firm of P. U. Guéringer & Co., by virtue of the endorsement in the name of the firm. And yet he states, in his petition, that he has obtained this note, in the ordinary and due course of trade, from P. U. Gué-ringer, one of the members of the commercial firm of P. U. Guéringer & Co., of New Orleans.” Be this as it may, the only amount which the plaintiff had the right to recover from the party who drew this note in his individual name and endorsed it with the name of the firm, was the amount of the note itself. The plea of res judicata was, therefore, properly sustained.

The defence set up by the other defendant, F. N. Guéringer, is that there never existed in New York a firm entitled P. U. Guéringer & Co.; — that a firm bearing the same title had existed in the city of New Orleans, but had been dissolved on the 10th day of March, 1855, within the plaintiff’s knowledge; that this commercial firm never had any dealings with the plaintiff; that the note sued on was the individual liability of P. U. Guéringer, who had no authority to endorse it in the name of the firm.

On a previous occasion, suit had been brought against the defendants as members of this firm, by the present plaintiff, for the same cause of action ; but the demand against F. N. Guéringer was dismissed as in case of nonsuit, on the ground that the plaintiff had failed to prove, as was incumbent on him, that a partnership existed between the defendants at the time the note was endorsed with the social name, or that the consideration of the note had enured to the benefit of the partnership. Vide Opinion Book 29, p. 563.

It appears that on the first day of March, 1851, the defendants formed, in the city of New Orleans, a partnership; and it was stipulated in the act, that it would last for the space of six years, and that only one of the partners, F. N. Guéringer, had the right to use or sign the social name of the firm. The partnership was, however, dissolved on the 10th day of March, 1855, over five months previous to the date of the note, upon which the present action is based. The defendant, P. U. Guéringer, was, therefore, without authority to make the endorsement ; and the plaintiff is precluded on this subject, unless he were ignorant of the fact of the dissolution of the firm, or unless the other co-defendant was benefited by the transaction, or authorized the endorsement.

It is not pretended that the latter ever gave any such authorization, or even approved of it subsequently. And the view which we have taken of the merits of the whole transaction, as between the plaintiff and P. U. Guéringer, dispenses with an examination as to the fact of knowledge of the previous dissolution of the partnership concern between the defendants.

The position occupied in this transaction by the plaintiff, is a very discreditable one, as evinced by his own correspondence. He was engaged in a hurried liquidation of his business affairs at Panama, with the declared intention of realizing at a sacrifice the whole of his means, for the settled purpose of making a fraudulent surrender of his property to his creditors, whose claims, he himself admitted, would exceed the assets he would thus realize. He does not blush to expose the whole plan of his operations to the defendant, P. U. Guéringer, then his bosom friend. It seems that one of the motives that actuated the plaintiff in this nefarious line of conduct, was his solicitude for a woman by the name of Laure, with whom hd had had a child; and that, for fear that as a result of his embarrassed situation, he and his concubine and daughter might be left in straight circumstances, lie preferred to throw the losses on his creditors, who, as lie remarked, were all rich, and more able to weather the storm. He was willing to leave to his creditors a large per centage on their claims, provided, however, they showed him some leniency; but if they were refractory, he would find himself compelled to realize all that he could, and keep the same to their exclusion.

In order to carry out his plan, and for fear that death might in the meantime snatch him away, without provision being made for “ the objects of his tender affections,” he enlists the services of his friend, P. U. Guéringer, who willingly complies with the request. Largo sums of money are forwarded to the latter for the sole purpose of remitting to Europe; great precautions are taken for the purpose of keeping all these movements secret; the plaintiff in several letters requests, in case of his unexpected demise, that the sum of §L0,000, and afterwards that an additional sum for the same amount, be transmitted to his concubine ; the plaintiff then repairs from Panama to New York, where he lives clandestinely ; and as a finale to their dishonest operations, the defendant, P. U. Guérin-ger, executes the note of ton thousand dollars in favor of the firm of P. U. Guéringer & Co., long since dissolved, and endorses that note with the social name. To corroborate the already abundant proof that the consideration of this note has not enured to the benefit of the other co-defendant, the evidence in the record shows that there was no business transaction between the plaintiff and the firm of P. U. Guéringer & Co., and that whatever transactions may have taken place between this firm and the house of P. U. Guéringer in the city of New York, and between the defendants, were duly closed without reference to the note now under consideration.

The attempt to discredit the witness, P. U. Guéringer, who was placed on the stand after the District Judge had dismissed the suit against him, comes with a bad grace from the. plaintiff, his particeps criminis. The court below properly overruled all enquiries into the particulars of the conduct and character of this witness. And on the score of interest, we think the objection to his competency untenable : his interest is not adverse to the plaintiff’s, but to that of the defendant, if the latter bo bound for the note sued upon. This ruling disposes also of the bill of exception to the competency of the witness, Ernest Guéringer, for the reason assigned, that he is the son of P. U. Guéringer.

The last bill of exception was taken to the overruling of the following question, propounded by the plaintiff to the witness, Riera : “ What was the share of F. N. Guéringer in the partnership of P. U. Guéringer & Co. when it was first formed, in the year 1841 ?” This question was properly overruled on the ground of irrelevancy. Had it been answered, it could have benefited the plaintiff in no wise; for the defendants, being commercial partners, were bound in solido for all the debts of the partnership.

The appellee, F. N. Guéringer, has moved for an amendment of the judgment rendered in his favor; and we think that, instead of a judgment of nonsuit, he was entitled to an absolute judgment.

It is, therefore, ordered and decreed, that the judgment of the District Gourt be amended so as to reject the demand of the plaintiff against the defendant, F. N. Guéringer; and that the judgment so amended be affirmed, the plaintiff and appellant paying costs in both courts.


author: Oole, J.

text:
    F. J. Vanbibber & Co. v. The Bank of Louisiana.
    A bank is liable to the payees of a check made payable to their order, when the check is paid on a forged endorsement made by the collector of the payees, who receives the check in payment of a bill of merchandize intrusted to him for collection by his employers.
    PPEAL from tlie Fifth District Court of New Orleans, Eggleston', J.
    XA H. M. Spofford, for plaintiffs. Levi Peirce, for defendant.
   Oole, J.

Messrs. Roche & Esclapon, having purchased a lot of sugar of plaintiffs, the latter sent, on the 30th November, 1858, their collector, J. F. Butler, to collect the price thereof.

The purchasers gave their check for $1,335 98, the amount of the bill, on the Bank of Louisiana, payable to plaintiffs or order.

The collector appears to have forged the signature of the payees, and to have presented the check personally, or by a third party, to the bank, upon the day of its execution, and then to have absconded with its proceeds.

This action is to compel the bank to pay to the payees the amount of the check.

There was judgment for plaintiffs, and defendant has appealed.

The first question that arises is, whether the plaintiffs were the owners of the check ?

It is contended that they were not, because the duty of the collector was to have received only current money in payment of the bills for the sugar, and the plaintiffs would have had the right to have disavowed the act of their collector.

The plaintiffs were called upon by defendant, to answer interrogatories, and, in answer to a cross-interrogatory, testify that they collected their money through checks, and made disbursements in the same way; that their collector had no instructions, at the time he presented the bill, as to the manner of receiving payment.

It having been the custom of plaintiffs to receive the payment of their bills by checks, they could not, with any grace, have disavowed the action of their collector.

Besides, even if the action of the collector in taking a check were unauthorized, his principals had the right to ratify it, if they desired, and they have so ratified it by bringing this suit.

The title of the chock was, therefore, in plaintiffs.

The drawers of the check were accustomed to have deposits of funds at the bank, and to draw occasionally against the same.

The drawers in this check requested the bank to pay its amount to plaintiffs or order. The bank had no right to pay it to any other person. It has, however, paid it upon a forged endorsement, and the amount of the check must be considered to be still in the bank, subject to the rights of plaintiffs.

A depositor in a bank has the right to suppose that the bank will only pay out his money upon his own signature or that of his agent, and upon the conditions specified in the check. The party receiving a check drawn by a depositor is actuated by this confidence and belief, and takes a check with the understanding that it shall be paid only to his order, or as specified in the check.

In this case, no negligence is shown on the part of plaintiffs. The collector had been known to one of tlie firm several years, and had been in their employ six months, and had always maintained a good character for honesty and proper deportment, until his sudden disappearance, on the 30th of November.

If there was negligence anywhere, it was upon the part of the bank. Their duty to their depositor required them to be satisfied that the endorsement of the check was that of the payees.

Besides, it is usual with merchants to deposit checks, payable to their order, in banks, in which they keep their accounts with their proper endorsement, as so much cash; and it is proved that such was the custom of plaintiffs. The unusual course, of demanding payment of the check, ought to have awakened the attention of the bank.

It appears also, that plaintiffs never had any account in the Bank of Louisiana, and that the signature of the firm is not on the signature book of the bank. It was, then, great laches to pay the check, without being properly satisfied of the genuineness of the'endorsement.

It is also established, that the collector was never authorized by plaintiffs to endorse any check drawn to the order of the firm, or any check.

Plaintiffs also made search for the collector, and telegraphed to all points for his arrest, and sent a person to Jackson, Mississippi, in search of him. The collector took, besides the proceeds of the check, forty dollars from the safe of plaintiffs.

Art. 2966 of the Civil Code requires the power to endorse bills of exchange or promissory notes to be express and special; but defendant contends that a check is not a bill of exchange, and that this Article applies to written powers of attorney. Story, Prom. Notes, g 489.

It is true that bills of exchange differ, in many important particulars, from checks; yet, even without this Article, the collector would not have been empowered to have endorsed the check for plaintiffs, without showing that it was within the scope of his agency as collector; otherwise, no one would be safe from ruin. Edwards on Bills and Notes, p. 396 ; Chapman v. White, 2 Selden Rep., 412.

There was an implied engagement, upon the part of the bank, to pay to third parties the checks drawn in their favor by depositors, and thus there was a privity of contract between the plaintiffs and the bank.

Butler having been authorized to collect the bill, and the usual way being the receipt of a check, the check was, then, received for plaintiffs, and his possession was that of plaintiffs. The forgery of the check did not divest them of the right of property in the check, which could only properly be paid to their order.

Butler could not, by exceeding the limits of his authority, acquire any interest in the check which could injure plaintiffs.

Defendant contends that the bank is not liable to the payee of a good check, which it has obtained under a forged endorsement, and that its only liability is to the drawer, whose name is on its signature book.

The banks having consented to pay the deposits of their depositors on their checks, have thus tacitly agreed to pay them to the payees, and they are bound to know that the checks are paid to the real payees, or their agents, as long as they permit their depositors thus to draw checks and thus to make payments to their creditors. Otherwise, creditors would be liable to be defrauded.

Butler was never entrusted with the power of drawing checks, and there is no reason why the loss should fall upon plaintiffs. The bank could have prevented the loss and caused the arrest of Butler, by verifying the signature.

It does not appeal’ whether the bank paid to Butler or to a stranger, or that any caution was used in asking his name or a reference. If to Butler, it is not shown that he was known, or that they knew him to be the clerk of plaintiffs.

The bank receiving the money of plaintiffs, not on special deposit, but subject-to being checked for, acquires a benefit, as it has the use of the money; and in consideration, and also to oblige their customers, agrfees to pay it out as ordered by the depositors, but in this case they have not obeyed their order, but contravened it, in paying it to a different person than the payees.

Esclapon & Roche acted with prudence, for they made the check payable to the order of plaintiffs, as is generally the case in such payments; for then the debtor knows that they cannot lose, and that the creditor cannot be defrauded.

If the defendant were not responsible, it would put innumerable obstacles in the way of business, and all to prevent the banks being at the little trouble of asking the person presenting the check for a reference, or to verify the signature, if it is unknown.

The bank becomes the agent of the debtor to pay the check. In agreeing to pay it, they agree to pay it to the right person. If they do not wish to do this, their duty is to refuse to pay. But in accepting the agency, which is for a consideration, they subject themselves to the rules and obligations of agents, and can be sued directly by the creditor of the debtor, who is the holder of the check.

It is true, that checks made payable to fictitious payees, or persons not in esse, and purporting to be endorsed by them, are deemed to be checks payable to bearer so far as relates to the drawer. But plaintiffs had a real existence, and the check ought to have been endorsed by them before it was paid by the bank. Wilcox v. Beal, 3 An. 407 ; Smith v. Mechanics’ and Traders’ Bank, 6 An. 624; Etting v. The Commercial Bank of New Orleans, 7 R., p. 462; Morgan v. Bank of State of New York, 1 Duer, 434, (affirmed in 1 Kernan, 404, p. 6, Spofford’s cases) ; Laborde v. The Consolidated Association, 4 Rob. 193.

The bank holds the money of its depositors subject to be checked for as their agent. When, then, the bank receives a check, instructing them to pay a certain part of the deposit of the drawer to a third party, and the bank agrees so to do by its general custom, and by undertaking to pay it upon the supposed endorsement of the third party, the amount of money represented by the check, and on deposit as that of the drawer, becomes eo instanti the property of the payee, and the bank, from the moment it undertakes so to pay the check, holds the amount of the check as the agent of the payee, and is responsible to the payee, as his agent, if he pays it upon a forged endorsement. The bank also holds the amount of the check as the agent of the drawer, and undertakes, as his agent, to hold the amount of the check no longer as the agent of the drawer, but as that of the payee; so that, either the drawer or the payee can maintain an action against the bank, unless one of them has deprived himself of the right by some action of his own.

Judgment affirmed, with costs.


author: Cole, J.

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    Geo. W. Helme v. Middleton, Harper & Co.
    In a transaction by whicli a draft is substituted in tlie place of a note, to constitute a novation of tho debt, it must be established clearly that it was the intention of the parties that the draft should bo taken in absolute payment of the note.
    "Where at tho maturity of a draft, the firm on which it was drawn in the city of New Orleans had no place of business, and could not be found there, and had then ceased to exist as a firm. Held: that a protest was unnecessary to bind the drawer.
    from the Fourth District Court of New Orleans, Price, J.

      Ciarle & Bayne, for plaintiff. Benjamin, Bradford & Finney, for defendants and appellants.
   Cole, J.

The defendants being indebted to J. H. Palmer & Co., gave to them as collateral security two notes of J. B. Harper <& Son., and upon the 6th of June, 1853, the defendants agreed to allow Palmer & Co., to be paid the amount of the notes out of a judgment, in case it should be rendered in their favor, in a suit instituted by them against the Memphis Insurance Company.

Afterwards the following transaction took place between the parties, as is evidenced by their receipt:

“ Received, Bayou Sara, April 23d, 1855, from Messrs. J. B. Harper & Son, their draft on Messrs. B. F. Shields & Co., New Orleans, La., for $972 32 in full of all demands, in case said draft is accepted and and acceptable to the representative of /. H. Palmer & Co.; also order on Messrs. Bonford <& Finney, for control of the suit of Middleton, Harper <& Co. v. Memphis Insurance Co., and when suit is brought to a successful termination and the money made, we agree to return to said J. B. Harper & Son, the aforesaid draft, notes, &c., and the balance due from insurance, less costs for collection, costs etc.,

J. H. Palmer & Oo.,

A. N. Baxter.”

At same time of execution of this receipt, the following order was given :

To Messrs. Bonford & Finney.

Please give in charge the suit Middleton, Harper & Co. v. Memphis Insurance Co., to Wm. M. Abernethy, Esq., executor of J. H. Palmer, and his receipt will be good to you. J. B. Harper & Son.

Bayou Sara, April 23d, 1855.

The draft on Shields & Co., was not paid at maturity, and was returned to /. B. Harper & Son, whereupon plaintiff, who is the receiver of Palmer <& Co., instituted this suit, in which he averred that more than enough had been collected from the judgment against the Memphis Insiurance Co., to pay the two notes of J. B. Harper <& Son, and he prayed for judgment against Middleton, Harper & Co., and their attorneys in the suit against the Insurance Co. No service of citation was made upon the attorneys, as they agreeed to pay, if judgment should be rendered against Middleton, Harper & Co., and they were willing to • have paid without suit, but were prevented by their client.

There was judgment for plaintiff upon the amount of the two notes, and defendant has appealed.

It is contended by defendant that the draft on Shields <& Co., was given in payment, and that the original debt was novated by the receipt of April 23d, 1855.

There may be some obscurity about this receipt, but it is clear that novation was not created thereby of the two notes.

If it had been the intention of the parties that the draft on Skidds <& Co. should be taken in absolute payment of the two notes, and that the draft was substituted in their place, then there would have been no reason for giving Palmer & Co. the control over the suit against the Insurance Company, and for stipulating that when the money was made out of this suit, then, that the draft, notes, etc., should be returned to Harper <& Son. The draft could not have been given in absolute payment, because in a certain event, it was to be returned.

Novation must be clearly established.

The conduct of the parties corroborates our interpretation of this receipt.

The return of the notes was not required. The draft on Shields & Co., was on the 11th February, 1856, returned to Messrs. Harper & Son, in a letter, in which it was stated that plaintiff held the draft only as collateral.

The statement is not contradicted until the 28th of December, 1857, when the answer is filed.

We would here remark, that J. B. Harper was formerly a member of the firm Middleton, Harper <& Co.

It is also contended that defendants are released, because the draft was not protested, but it is established that Shields & Co., had, at the maturity of the ' draft, no place of business in New Orleans, and that they could not be found, and that the house had ceased to exist before the maturity of the draft.

Even if Shields & Co. were indebted to Harper & Co., at the time of the maturity of the draft, it is evident from the record, that the money could not have been made out of them.

The long silence of Harper & Son, after the return to them of the draft, shows that they did not attach any importance to the failure of the protest.

There is, however, an error in the judgment.

The court has omitted to notice credits of March 18th, 1854, upon the note of $579 61, amounting to $300 84.

The two notes were evidently to be accepted as full satisfaction for the original debt with the additional guaranty of the obligation of the defendants to be personally responsible for the same, and they must be deemed to have been so taken and assumed, subject to a deduction for the endorsed credits.

One of the credits asked for by appellant cannot be allowed, for it is on the original note, represented by the two notes now sued upon.

It is, therefore, ordered, adjudged and decreed, that the judgment be amended by making the sum of $579 61, mentioned therein, subject to a credit of $300 84 paid on the 18th March, 1854; that the judgment so amended be affirmed, and that appellee pay the costs of appeal.


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    State v. The Judge of the Eighth Judicial District.
    Tho 129th Article of the Constitution which requires that the laws of this State shall ho promulgated in the English and French languages, is not violated by section second of the Act of the Legislature of March 16th, 1859, entitled “ an act to change and regulate the terms of the District Courts in the Eighth Judicial District,J> which declares that the Act shall take effect from and after its passage.
    There is no prohibition in the Constitution, against the repeal of laws, in any form, in which the Legislature can give a clear expression of its will.
    an application for a mandamus to the Hon. J. C. Wilson, Judge of the Eighth Judicial District Court.

      M. T. Carter, District Attorney, relator.
   Merrick, C. J.

This is an application (with the proper averments showing interest and jurisdiction) for a writ of mandamus against the Judge of the Eighth Judicial District, to compel him to hold the courts for the April and May terms, in the parishes of St. Helena and Livingston.

The refusal of the Judge to hold the above named terms of the court, is the consequence of his construction of the recent Act of the Legislature, bearing the number 120, approved March 16th, 1859, and entitled “ an Act to change and regulate the terms of the District Courts in the Eighth Judicial District of the State of Louisiana.”

It consists of two sections, as follows:

“ Sec. 1. Be it enacted, &c., That the terms of the District Courts in the Eighth Judicial District, be as follows, viz :

“ In the parish of St. Helena, the jury terms shall commence on the third Monday of April, and first Monday of November.

In the parish of Livingston, the jury terms shall commence on the second Monday of May and the third Monday of October.

“ In tho parish of St, Tammany, the jury terms shall commence on the fourth Monday of May, and fourth Monday of November.

In the parish of Washington, the jury terms shall commence on the third Monday of June and second Monday of December.

“ Sec. 2d. Be it further enacted, &c., That this Act shall take efi'ect from and after its passage, and all laws regulating the terms of courts in said parishes, are hereby repealed.”

The District Judge rests Ms refusal to hold the courts in St. Helena and Livingston, under said Act, on two grounds, viz :

1st. That the Act has not been promulgated in English and French, as contemplated by the Constitution.

2d. That it is in fact, an amendment of the fifteenth section of the Act of the Legislature, approved March 10th, 1855, entitled an Act relative to District Courts, and as such is void, being in contravention of Art. 116 of the present Constitution.

I. The 129th Article of the Constitution is in these words, viz: “ The Constitution and laws of this State, shall be promulgated in the English and French languages.”

Article 132 of the Constitution of 1845, was in the same words.

This provision was not supposed to be necessary when the Constitution of 1812 was adopted. The portion of the inhabitants speaking English, did not then, as now, out number those using the French language as their mother tongue. At that time, it was deemed necessary to provide that the laws, &c., should be written and promulgated in the English language ; the language in which the Oon-stitution of the United States is written. In 1845, as well as in 1852, it was considered necessary to protect, by the Constitution, those speaking the French language.

Those whose mother tongue was English, were protected by Article No. 103 of the Constitution of 1845, and 100 of the Constitution of 1852.

The Article in question does not therefore appear to have been introduced for the purpose of declaring that laws must be promulgated before they can be made to have effect, but simply that they shall be promulgated in French as well as English.

The Judges, under the Constitution of 1845, some of whom had aided in framing the instrument, do not appear to have had any doubt on this question. In the matter of the Merchants’ Bank of New Orleans, 2 An. 68, they gave effect to a statute containing a similar clause, without hesitation.

In the affairs of a State, as well as of individuals, it is impossible to anticipate the exigencies which may arise in the future, and there would be a singular want of foresight to take from the State or the individual, the power of immediate action to meet such emergencies. See Buhol v. Boudousquie, 8 N. S. 433 ; City of New Orleans v. Holmes, Recorder of Mortgages, 13 An.

II. On the second ground, the Act does not appear to contravene the 116th Article of the Constitution. It does not revive any Act which has expired by limitation or been repealed. It does not amend any Act by its title. The only reference it makes to former statutes, is to repeal them, and there is no prohibition in the Constitution against the repeal of laws in any form in which the Legislature can give a clear expression of its will.

But were it to be considered as an amendment, instead of a repeal of the 15th section of the Act of 1855, p. 493, sec. 15, we are not prepared to say that it would contravene the Article in question, for the new law (the amended section) is reenacted and published at length, and the Constitution seems to require no more. See the case of Arnault v. The City of New Orleans, 11 An. 56, 57; and 12 La. 318.

The District Judge, in order to facilitate this proceeding and enable the relator • to obtain a speedy trial, has taken notice of the application for a writ of mandamus, and filed his answer, and waived all formalities and delays, and consents that a peremptory mandamus issue at once, should the reasons assigned by him be deemed insufficient by this court.

After carefully considering the grounds of objection to the constitutionality of the Act, they do not appear to us to be sufficient to enable this court to declare the Act in question void.

But it is now evident, that the term of the court cannot be held in the parish of St. Helena, in the remaining portion of the time allotted by the Act for the April and May term, and it would be idle to order the Judge to hold such term. Indeed, the court can only be held in Livingston, by availing ourselves of the consent of the District Judge to award the peremptory mandamus at once.

It is, therefore, ordered, adjudged and decreed by the court, that a mandamus issue immediately, commanding the Hon. Julius E. Wilson, Judge of the Eighth Judicial District of Louisiana, to proceed to hold a jury term of the District Court, in and for the parish of Livingston, to be begun and holden on the second Monday of May instant, in accordance with the Act of the Legislature, approved March 16th, 1859, and that the relator pay the costs of court.


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    Valery Gaiennie v. William Freret.
    ■Whore in a redhibitory action, brought to rescind, the sale of a slave, and recover back the price paid, it was established by parol evidence received without objection, that upon being informed of the sickness of the slave, the vendor had consented to his return — Held: That effect must be given to the evidence, and thatafter its reception, it is too late to raise the objection, that the fact of such consent on the part of the vendor, should have been established by written proof, in order to rescind the sale.
    Where the consent of the vendor to take back the slave has been given, and in accordance with it, the slave has been returned to bim. by the vendee — Held: That in a suit brought to rescind the sale, and recover back the price paid for the slave, the consent of the vendor throws the burden of proof upon him, and he cannot be relieved from it, without showing fraud or concealment on the part of the vendee in procuring such consent, or somo negligence in returning the slave.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    -Ol H. H. Strawbridge and H. D. Ogden, for plaintiff. C. JDufour, for defendant and appellant.
   Merrick, C. J.

This is an action of redhibition brought to rescind the sale and recover bach the price of a negro woman sold by defendant to the plaintiff.

The negress was sold to the plaintiff on the third day of February, 1851, and immediately removed to the parish of Natchitoches, where plaintiff resides. About the 15th or 20th of the same month, the plaintiff had discovered that the slave was unsound. He wrote to his cotton factors in this city, desiring them to communicate with the defendant, and that he should take her back. On being applied to for this purpose, the defendant verbally consented to the return.

A physician was called upon by the plaintiff, to examine the woman, and, we infer, to prescribe for her, as he says he visited her four times. As die grew worse, he advised she should be returned immediately. Defendant was notified of her arrival in the city, and thereupon took charge of her, and had her treated at the hospital by skillful physicians, but, notwithstanding, the slave died. The disease was an ulceration of the uterus.

“We are satisfied that the defendant was not aware of the existence of the disease at the time of the sale, and we doubt not the suit is defended on the supposition that the complaint was not incurable, and perhaps that the negress did not receive the proper attention.

The case, however, does not depend upon the ordinary rules governing the action of redhibition. As just mentioned, it is proven by parol, received without objection, that when plaintiff’s agent informed defendant of the sickness of the negress, he consented to her return, and she was accordingly sent back and taken charge of by defendant. It is now objected, that the sale could not be rescinded without written proof. The objection comes too late, and according to the well settled rules of law, effect must be given to the testimony.

This consent of the defendant, throws the burden of proof upon him, and he cannot be relieved from such consent, without showing fraud or concealment on the part of the plaintiff, by which it was procured, or some negligence in returning the slave.

The testimony makes it more probable that the disease existed at the date of the sale, than the contrary, and if the physician was not called until the 15th or 20th of February, it is but reasonable to suppose that it was not without delay and reluctance that the negro woman communicated to her new master, a disease which she had carefully concealed from her former one.

The plaintiff cannot be charged with improper conduct in sending' the negress to New Orleans, notwithstanding her debility. It was doue under the advice of a physician, after defendant had given his consent.

Under the proof in this case, it was not incumbent upon the plaintiff to show, that the disease was absolutely incurable. The consent of defendant to the return of the negress, appears to have been given without any reference to the nature of the disease. When, therefore, plaintiff showed that the disease terminated fatally, notwithstanding the care of physicians employed by defendant himself, he proved more than was required, for it could no longer be objected, that the disease was not incurable, or redhibitory in its nature. That objection had been waived by the consent to the return of the slave.

Judgment affirmed.