author: Prestojv, J.

text:
    William Keay v. New Orleans Canal and Banking Company and H. J. Ranney.
    The plan, by which the vendor sells property, forms a part of the title conveyed by him, and he warrants whatever may fairly be inferred from it.
    Saits for damages should not be matters of speculation,-but reasonble claims for indemnification.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. and W. B. Hennen, for plaintiff.

      Hunton and Bradford, and R. and T. G. Hunt, for defendants.
   By the court:

Prestojv, J.

The plaintiff holds a parcel of ground, by titles derived from the New Orleans Canal and Banking Company, being the entire irregular portion of ground, bounded by the New Shelled Road, Solis, Euphrosine and Maunsel streets.

The bank sold the ground in 1845, by a plan made under their direction, exposed by their auctioneer, and deposited for reference with their notary. It is proved by witnesses, that a sale .by a plan, must give effect to everything apparent on the plan. The Civil Code also provides, that equity, usage and law, supply such incidents, as the parties may reasonably be supposed to have been silent upon, from a knowledge, that they would be supplied from one of these sources. Art. 1959. We consider, therefore, that the plan by which the plaintiffs sold the property, formed a part of the title conveyed by them, and that they warrant whatever may fairly be inferred from it.

The plan exhibits a vacant space in front of the property marked “ shelled road,” and the title made to the original purchaser, calls for a “front on the shelled road.”

, , , , In 1849, the defendants excavated a canal twelve feet wide and five leet deep, within three feet of the entire front of the plaintiff’s property. They extended it several hundred feet above and below his property.

The plaintiff complains of this canal; that it is an unauthorized nuisance established by the defendants, greatly detrimental to his property ; alleges that he has suffered five thousand dollars damages, for which he claims judgment; and demands that the nuisance be abated, by compelling the defendants to fill up the canal.

He asserts a right to a sufficient space in front of his property, forabanquette and gutter, and pray for all relief that equity and the circumstances may require.

The defendants plead and contend, that by the 14th section of their charter, they were bound to construct a suitable draining canal on the upper side of their shelled road; that the canal they have constructed, was thus required by their charter, and necessary for the public; they specially deny the right of the plaintiff to any space for a banquette and gutter, and, generally, the danger and damage of which the plaintiff complains.

By constantly bearing in mind the article of the Civil Code quoted, and the principle to which we have alluded, the pretensions of both parties will be much abated.

The plaintiff shows the plan, which exhibits the entire front of his property, as bounded by a shelled road, and produces the deed from defendants, which calls for a front on the shelled road, and claims that the shelled road should come to his line, leaving only a space for a banquette and gutter.

The act of the Legislature, incorporating the Canal Bank, imposed upon it the obligation of constructing a levee on the upper side of the canal, and to lay out a road not less than twenty-five feet wide along the whole line of the canal, and to cover the same with sand, shells, and other hard substance, with a suitable draining canal on the upper side thereof.

Such a road having been constructed by the defendants, nothing more can be required from them under their charter. Can more be required by their plan and bill of sale? The charter required that a space of one hundred and twenty feet on each side of the canal, should be left to the State at the expiration of thirty-five years from the passage of the act of incorporation. The plan indicates that this whole space should be left open, but when taken in connection with the charter, we do not think it imposed the obligation of converting the whole of it into a shelled road. The true interpretation of the charter, plan and deed of sale, all taken together is, that a vacant space of one hundred and twenty feet between the plaintiff’s property and the canal, should be left open for the purposes of commerce and public utility, and that a shelled road at least twenty five feet wide, should be left clear for a passage through this open space. They give the plaintiff a front towards the shelled road, a right of view upon, and open access to it.

It is clear from the evidence, that the defendants, in point of fact, filled up and widened the shelling of the vacant space between the plaintiff and the canal, to increase and facilitate the landing and growing commerce, and not for the purpose of a road. They had a right to use the vacant space for both purposes, as far as consistent with the rights of the plaintiff, which we will now examine.

We are of opinion, bo far as the defendants are concerned, without saying anything as to the rights of the State, that the plaintiff is entitled to the space necessary for a banquette and gutter in front of his property. In laying off large portions of ground within the limits of the city into squares and streets, to be sold in lots, universal usage establishes an understanding and tacit consent, that a banquette and gutter is to be made on the vacant space left in front of the squares for streets or other access, and so marked on the plans, and the vendor can never afterwards use that space, even for public much less his individual purposes, in a manner inconsistent with the dedication for a banquette and gutter. There can be no access without a banquette; there can be no healthful cleanliness without a gutter.

The evidence establishes, that three feet are necessary fo'r a gutter at that distance from the river, and that the banquettes, in the city, are from eight to twelve feet in width. We will adopt the medium of .ten feet for the banquette, and three feet for the gutter, until the city authorities establish both by ordinance, as it is their right and duty to do.

With thirteen feet in front of the plaintiff’s property, we think the defendants have no right, under their plan and sale, to claim an exclusive use, or any use, inconsistent with the municipal purposes we have mentioned.

Had the defendants the right to dig a canal twelve feet wide and five feet deep, within three feet of the plaintiff’s line ? They contend, that they were obliged to do so by the 14th section of their charter, which required them to make a suitable draining canal on the upper side of their levee and shelled road. They were exempted from that duty, by the 1st section of an act approved the 16th of March, 1848; moreover, a suitable draining canal at that part of their property, would be one sufficient to carry off the water coming down the street, parallel to the upper side of their shelled road, and not the canal, originally intended by the Legislature, to carry off, through the Metarie Ridge, the rain and transpiration water, from a surface fronting eight or ten miles on the Mississippi river, and extending back to the canal. It is proved, that a gutter three feet wide is sufficient for draining purposes in front of the plaintiff. The defendants were not, therefore, bound to the State to dig the canal in controversy, and by their sale and plan, we have seen, had no right to construct it for their individual purposes, at least, within thirteen feet of the plaintiff’s front; no man would have purchased at their sale, without a space in front for a banquette and gutter, or, with the belief, that they might establish a nuisance within three feet or less of his door. We concur therefore with the district court in the opinion, that the canal dug by the defendants in front of the plaintiff’s property, should be filled up at their expense.

We see no reason in this case for imposing vindictive damages.

The district court was of opinion, that the defendants dug the canal merely to obtain the dirt for the purpose of filling up their widened landing. The plaintiff also endeavored to prove, that it was done from the malice of an agent of the bank, against a former proprietor of the plaintiff’s ground. The evidence does not sufficiently establish, to our minds, 'either position. On the contrary, we are inclined to think, the defendants believed they had the right to dig the canal, and that its construction might be useful. Even if it was dug for the dirt alone, to widen and fill up the landing, that improvement has and will prove beneficial to the plaintiff.

The plaintiff complains of an unnecessary elevation of the embankment and road in front of him. The Legislature required the defendants to construct a levee sufficient for protection from overflow, in the event of the river breaking through the levee at any point above. Engineers are of opinion, that the presenf; ^8’§^ embankment and road, was necessary for that purpose.

The clanger of the children of persons tenanting the plaintiff’s house, falling into the canal with peril to their lives, is urged as a leading motive for damages. The plaintiff lives on the other side of the lake. His tenant proves there is no serious danger of the misfortunes feared.

The plaintiff greatly complains of the obstruction of the access to his premises, from the shelled road and landing. The ground, immediately in front of his property, was very low before the canal was dug. The defendants were not obliged to fill it up; so that much obstruction always existed. Half the damages allowed by the district court, would have enabled the plaintiff to have bridged his whole front, and thus to have avoided the obstructions and dangers of which he complains.

Although it is proved, that the property of the plaintiff is temporarily deteriorated in value by the canal, yet that is to be remedied by filling 'it up. We do not believe he wished to sell his property, for he was offered, notwithstanding the nuisance, a third more than he gave for it but two years before. The only damage he can suffer, is the temporary inconvenience of the canal, from the time he put the defendants in default by this suit, commenced in April 3851, until he can compel them to fill it up under the orders of the district court.

Suits for damages should not be matters of speculation, but reasonable claims for indemnification; and, as in this case, we believe that each party has only exercised and asserted what they believed to be their rights, we think five hundred dollars would be an ample indemnification for all the damages the plaintiff has suffered, in consequence of the errors-committed by the defendants, including the trouble and expense of establishing his right to have it abated.

As to the filling up the canal at the expense of the defendants, the judgment of the district court is affirmed. The defendants are further enjoined from interfering with thirteen feet of the space in front of the plaintiff’s property, the same to be reserved and subject to the disposition of the city authorities, for a banquette and gutter. The judgment for damages is reversed, and reduced to five hundred dollars, which the defendants are condemned to pay, with costs in the district court; and it is decreed, that the plaintiff pay the costs of the appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Mary C. Nichols v. Her Husband.
    The wife, separated from bed and board, has no need, in any case, of the authorization of her husband. She may make all contracts not prohibited to her, as if she were unmarried. It is, therefore, perfectly competent for her to make a compromise with her husband respecting the property which each party is to retain.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Eggleston, for plaintiff.

      Coken, and Bewyamm and Mícom, for defendant.
   By the court:

Rost, J.

By the judgment which decreed a separation from bed and board between the plaintiff and the defendant, the parties were referred to a notary to make a partition of the community property; but, instead of going through all the forms of a judicial partition, they made a compromise, by which each of the parties retained a portion of their property, and renounced their rights on the other portion.

The plaintiff sues to avoid this compromise, on tho ground of error and fraud, alleging that her husband concealed from her a large portion of the property of the community, and she waa induced, by that artifice, to compromise as she did. She called upon her husband to answer interrogatories, and, among others, whether the property embraced in the act of compromise contained all the community property; the answer was: “ It docs, every fraction.”

There is no evidence in the record beyond the answers of the plaintiff to the interrogatories, and the judgment of the district court upon them was, that the rights of the parties be considered as settled by the former judgment and act of compromise. The plaintilf has appealed.

The ground of fraud upon which alone the action rests, is conclusively disproved, but the want of capacity of the plaintiff to make a compromise with her husband in such a case as this, is urged, for the first time on the appeal, as a sufficient ground for the reversal of the judgment.

The irregularity of this mode of proceeding is obvious; but this objection to it may be waived in this instance, the ground takén being clearly untenable.

The woman, separated from bod and board, has no need in any case of the authorization of her husband. See acts 1826, p. 162, sec. 2. She may make all contracts not prohibited to her, os if she were unmarried. The contract entered into in this case, so far from being one of those prohibited, is expressly authorized. Art. 2421 of our Code is a literal copy of art. 1595 of the Napoleon Code; and here, as in France, the first paragraph of that article which authorizes one of the spouses to make a transfer of property to the other who is judicially separated from him or her, in payment of his or her rights, includes communiiy right. See Toullier, vol. 2, tit. 6, No. 675. Ibid. vol. 13, tit. 5, No. 19.'

Under art. 1304 of the Code, the rules for the fiartitions of successions, with the exception of that which relates to collation, are applicable to partitions of community property, whether the community has been dissolved by death or by judicial separation; and the first of those rules is, that when all the parties are of age, and present, or represented, the partition may be made in such form and by such an act as the parties interested agree upon. C. C. 1245.

. The form of settlement adopted by the parties, was authorized by law, and as the good faith of the defendant in making it has not been successfully impeached, the judgment must be affirmed.

Judgment affirmed, the appellant paying the costs of this appeal.


author: Eustis, C. J.

text:
    Geo. A. Botts and T. C. Poole v. R. F. Nichols & Co.
    In a contest for the ownership of slaves, the plaintiff’s title was sustained. He died, and his curators brought suit for the wages of the slaves, and also for the value of those that were not delivered. Plaintiffs had judgment, which, on appeal, was affirmed.
    Slaves were delivered to defendants on their giving a forthcoming hond. Held: That this circumstance did not affect defendants’ rights in relation to tho slaves.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J,

      Gould and T. IL Howard, for plaintiffs,
    M, Cohen Emcl John E. Grymes, for tho defendants.
   By tho camtz

Eustis, C. J.

Certain slaves were seized under a writ of attachment against John S. Caldwell, an absconding debtor, as his property, and subject to the payment of his debts. They were claimed by the defendants as their property. Their title was an act of sale from Caldwell to them. The court of the first instance gave judgment in favor of the attaching creditor. On an appeal to this court the judgment was affirmed, this court being of opinion that the act of sale under which the slaves were claimed by Nichols S¡ Co., was a false simulation.

Caldwell has since died, and the plaintilis are the curators of his succession, and have brought this suit to recover from the defendants wages for the slaves during the time they were in their possession, and the value of two of them, which the defendants had failed to deliver to them.

The district judge gave the plaintiffs judgment for $1860, the value of the two slaves, and the sum of eighty three dollars per month for the hire of the slaves for the eleven months claimed in the petition. The defendant has appealed.

Under the decision of this court, on the defendants’ title, it is clear that they have no right to retain the fruits of the labor of the slaves which did not belong to them. After the slaves were attached, they were delivered to the present defendants, on their executing a forthcoming bond. We do not perceive that this circumstance affects in any manner their rights in relation to the slaves.

The plaintiffs have asked for an amendment of the judgment, in their favor, allowing the sum of fourteen hundred dollars for the value of the two slaves, in lieu of the sum of $1260, at which the district judge estimated them.

They were wrongfully sold by the defendants, pending the suit in which they were attached. But the evidence is not of that character, as to their value, which would authorize us in changing the judgment of the district court in this respect.

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


text:
    Heirs of Catharine Sharp v. Andrew Klienpeter.
    The words “ lawful heirs,” in a will, refer to heirs of the half as well as of the whole blood, and evidence cannot be received to show that testatrix only meant a portion of her heirs at law. The admission of such evidence would virtually defeat the prohibition to make verbal testaments.
    An executor, who is the debtor of the succession on account of the purchase of productive property from the testator, owes legal interest on the installments from their maturity. But his failure to pay the debt, which he owes, does not subject him to the penalties of the law for not keeping the funds of the succession in a bahk.
    APPEAL from tlie late Probate Court, now Sixth. Judicial District Court, parish of East Baton Rouge, Burk, J.

      Cyrus Ratliff, for plaintiffs,
    cited : Bullard and Curry’s Digest, p. 2, 3, Act of 13th of March, 1837. 2 Ann. 400. 4 Ann. 29, 30 ; and the case of the Succession of Salvados- Christy, 6 Ann. 427, the last case on this point reported, where the court say, the act of 13th March, 1837, requiring syndics, executors, curators, &c., to deposit funds in their hands in one of the banks allowing interest on deposits, is not unconstitutional ; and such fiduciaries are not excused from the penalty imposed by the law, upon the grounds that there were no banks which paid interest on deposits. If this case does not bear us out in our motion, then I yield the point.

      We will not trouble the court with any argument to refute the position taken by the counsel for the executor, that Mrs. Smith labored under an error of law in making her will; that she believed that her lawful heirs were her sisters and brothers of the full blood. The words lawful heirs is a plain and unambiguous expression, and cannot be departed from. C. C. 882, 884, 885. 6 Ann. 232. See, as to the interpretation of acts of last will, C. C. 1705. But the will must stand as it is, or be set aside. If set aside, so much the better for the legal heirs.

      J. M. Elam, for defendant.
    As to the'plaintiffs’ complaint, whether heirs of the full blood are entitled to three-fourths or two-thirds of the estate. Art. C. C. 909, requires that: “If they are of different marriages, the succession is equally divided between the paternal and maternal lines of the deceased; the german brothers and sisters take part in the two lines, the paternal and maternal brothers and sisters each in their respective lines only.”
    We have viewed this question as if the article 909 established clearly in such a case as this, the right of the half blood to inherit. By the Old Code this right was denied. In effecting this innovation in the New Code, article 909, the jurist, in a note appended to the project, remarks : “The 38th article of our code makes the german brothers and sisters of the deceased, inherit the whole of his succession to the exclusion of paternal or maternal brothers and sisters, which appears to us unjust; for the paternal and maternal brothers and sisters, though not so intimately connected with the deceased as his german brothers and sisters, are no less his brothers and sisters, and ought to have some part of his succession.”
    The 40th article of the code, in the case in which the deceased has left no german brothers and sisters, but only paternal or maternal brothers or sisters, has established a complicated mode of partition, which is found in Law 586 of the Partida, tit. 13, and in the Febrero Real, book 3, tit. 6, Law 13, which presents great difficulty.
    We have thought the mode which we propose, which is taken from art. 752 of the French Code, is more simple, and grants every thing which is required by the double tie which unites german brothers and sisters, without sacrificing the rights of the paternal brothers and sisters in the article mentioned.
    There appears to be in art. 909, C. C. and art. 752, French Code, a qualified exception to the disposition of such an estate, in these words: “ If there are brothers and sisters on one side only, they succeed to the whole, to the exclusion of all the other relations of the other line.”
    German brothers and sisters may have both paternal and maternal brothers and sisters of the half blood : as for example, when a widower, with children, marries a widow with children, the issue of their marriage would be bound as by a “ double tie” to the half blood by the paternal and maternal line, although the children of the two lines respectively, are strangers in blood. It seems to us that it is only in such a case, that german brothers and sisters are required to divide an inheritance; but, in a case like that at bar, where there are sisters on one side only, they should succeed to the whole estate to the exclusion of all the other relations of the other line. It is evident the article intended to exclude some one under certain circumstances, and we frankly confess our inability to discover who was intended to be excluded, unless it be in a case where the “ double tie” did not exist, but only in a case where the half blood existed in one line only.
    If, under article 909, the half blood be entitled to any part of the inheritance, the judgment of the district court did them ample justice.
    The demand of those claiming to be heirs of the half blood should be rejected. This depends on the construction to be given to the intention of the testatrix, as her oft-expressed wish, shown by the answers of the executor to interrogatories propounded to him, and the testimony of James C. Dawson and John B. KLienpeter, taken on the trial. In fine, whether the right claimed by the half blood does not grow out of an error of law, operating on the mind of the testatrix, when in her will she said: “ It is my will, that the balance of my property, both real and personal, and debts due to me, shall be equally divided between my lawful heirs.”
    Who did the testatrix consider were her lawful heirs?
    By the Code of 1808, the half blood was not lawful heirs, ah intestato, in case there were german brothers and sisters. This rule of inheritance being known to the ancient population, a change by the Code of 1825 is still unknown to many of them, as it doubtless was with the testatrix, at the date of her will and her death.
    But the question occurs, can the heirs of the full blood plead an error of law resting on the mind of the testatrix when her will was dictated, as to those who were her “ lawful heirs 1 ’ ’

    The jurist who revised and projected the Code of 1825, which gave the half blood a right to inherit, also incorporated in the code, tit. 4, c. 2, sec. 1, par. 7, article 1840, Errors of Law.
    In a note appended by the jurist who revised and recommended for adoption the Code of 1825, it is said: “As there has been much diversity of opinion, and many contradictory decisions on the effect which errors in law ought to have upon contracts, we have thought it proper to offer some positive enactments on the subject. Neither the Napoleon Code, nor that in force in this State, have any article on that subject eo nomine, but we think there are some in both codes which show a decided intent that such errors, as well as errors in fact, should invalidate contracts. The article 1109, which is copied verbatim in our Code, (art. 9, title obligations,) declares, “ that is no valid contract which is given through error,” without making any distinction between error in law and error in fact. Art. 2052 Napoleon Code, and art. 10, title Transaction (Compromise) in our Digest, both provide that a compromise shall not be attacked for an error in law. Now, there being no such objection in any other contract, it is fair to conclude that the general expression of the article 9 would have given rise to a rescisión of all contracts, including those of compromise, or there would have been no reason for the special restriction.
    The reason of allowing a rescisión for errors of law, appears to us equally evident in both cases, Our code, and that of most other nations, has established, that when an obligation is entered into without a cause, or with a false or unlawful cause, it is void. Art. 31, tit. Obligation. If, therefore, an opinion of my right is the sole cause of my agreement, and that opinion is false, there is then no cause, no more than there woul d be if the error bore on the substantial fact, which was the cause of the contract, and of course the contract is void. Our opinion on thissubjectis supported by D’Aguesseau in his treatise on the subject, Pothier in his Pandects, vol. 1, p. 645, Domat, law 1, tit. 18, No. 14, Yennius, Huberus and other celebrated civilians, and by several learned writers in the English law. The maxim that all are presumed to know the law, we apprehend, applies principally to duties, not to contracts. But a few of the 3522 articles of our code are enactments of positive law. The capacities and incapacities of persons being defined, declaring what acts may or may not be contrary to good morals and public order, persons are left free to make their agreements, legally entered into, to have the effect of laws. The code is principally illustrative of principles which should be implied in every contract, influenced by the perpetual disposition to render every man his due.
   By the court:

Rost, J.

This is a suit by the heirs of Mary B. Sharpe, some of whom are descendants of brothers and sisters of the whole blood, and others are descendants of brothers and sisters of the half blood of the deceased, against her executor, to compel him to account for, and distribute among them, the funds in his hands.

The executor rendered his account, showing a balance of $15,760 86 in favor of the , succession, after paying the debts and particular legacies. He averred, at the same time, that he was one of the heirs of the whole blood, and denied the right of the descendants of the brothers and sisters of the half blood to inherit any portion of the succession.

The district judge homologated the account of the executor, and ordered him to pay three-fourths of the amount in his hands, to the heirs of the whole blood, and the other fourth to the heirs of the half blood. He allowed legal interest on that balance, from the judicial demand, instead of the interest of 20 per cent claimed by the plaintiffs, on the ground that the executor failed to deposit the funds of the succession in bank, as required by the act of 1837.

The plaintiffs have ail appealed, and the executor has asked that the judgment be amended, so as to reject the demand of the heirs of the half blood, and the allowance against him of legal interest.

As all the heirs of the whole blood, except the defendant, have joined in the same suit with the heirs of the half blood to claim the succession as heirs at law, and have set up no claim under the will of Mary B. ,%harpe, the district judge properly ordered the distribution between both classes off heirs to be made in conformity with article 909 of the code, and the executor has no capacity to contest, in behalf of the heirs of the whole blood, claims which they have judicially admitted.

The executor being himself an heir both at law and under the will, had undoubtedly the right to claim, as testamentary heir, and to contest the rights of any of the plaintiffs as heirs at law; but he has not done so, he simply alleges that he is one of the heirs of the full blood, and denies that the heirs of the half blood are entitled to inherit any portion of the succession; the will is no where mentioned by him, and his rights, as heir at law, being fully recognized by the judgment, he has no cause of complaint.

The question, who the testatrix meant by her lawful heirs, when she ordered her property to be equally divided between them, does not occur, and if it did the result would certainly not be favorable to the appellee. The words lawful heirs are free from ambiguity, and no evidence was admissible to. prove that she only meant a portion of her heirs at law; that evidence would virtually defeat the prohibition to make verbal testaments.

The executor having purchased property from the deceased, and being a debtor of the succession for the price of it, to the entire amount remaining in his hands when the motion to produce his bank book was made, we think ¡that the Act of 1837 is not applicable to him, but the property which he purchased being productive, we are of opinion that he should have been charged with legal interest from the maturity of the different installments of his debt.

The plaintiffs object to the charge of $1500 made by the executor, for a like sum paid by the testatrix to D. Smith, in April, 1839 ; he was the agent of the testatrix, and had the sole management of the plantation which he purchased rom her shortly after; he has charged himself, in his account, with the proceeds f the cotton crop of 1838, and, as it may be fairly inferred from the evidence lat she had no other means besides the crop to pay that sum, we cannot say. lat the district judge erred in deducting it from the proceeds of the crop.

The allowance of interest from the maturity of the installments, and the iglect of counsel to submit a decree, showing the share of each of the parties by represent, after deducting the amounts they have received, makes it tessary to reverse the judgment and to remand the case. That interest will irease the balance against the executor in his account from $15,760 to $,528 40, to be distributed as follows: three-fourths to the heirs of the whole bid, and one-foui'th to the heirs of the half blood.

is therefore ordered, that the judgment be reversed. It is further ordered, til the executor distribute among the heirs of the half blood, the sum of $92 12. It is further ordered, that he account to the heirs of the whole bio, for sixteen thousand one hundred and forty seven dollars thirty-six cents, decting from their respective shares the amount paid each of them, with legal intost from the date of payment to this day. It is further ordered, that the accat of the executor, as amended, be approved and homologated, and the case remanded for a partition among the heirs, in conformity with this decree, and with directions to the district judge to allow legal interest from this date upon half of the amounts coming to them on the final partition. It is further ordered, that the coBts of this appeal be paid by Andrew Kleinpeter personally.


author: Slidell, J.

text:
    Corcoran v. Riddell.
    Tho return of a citation of the husband, which shows a service made upon the wife, without stating that the husband was absent from his domicil, is defective. The fact of absence must appear from the return, unaided by other evidence.
    The vendor of a judgment, who stipulates against any recourse or claim whatsoever against him, is not relieved from the implied warranty of the existence of the debt at tho time of the transfer, in the form in which it purported to exist, that is to say, in the form of a judgment.
    Even in case of stipulation of no warranty, the seller, in case of eviction, is liable for a restitution of the price, unless the buyer was aware at the time of the sale of the danger of eviction, and purchased at his peril; and this principle of the contract of sale, applies not only to the sale of corporeal things, but also to the sale of a debt.
    Where the seller is in good faith, and the purchaser is evicted of the thing bought, tho measure of damages against the former, is the restitution of the price and the costs of the action under which he was evicted.
    APPEAL from the Fifth District Court of New Orleans, Buchanan,

      Warfield, for plaintiff.

      Bartlette, for defendant.

      Pitot, for the Citizens’ Bank, called in warranty.
   By the court :

Slidell, J.

The district judge did not err in adjudging the nullity of the judgment rendered in favor of the Citizens’ Bank v. Corcoran. The validity of that judgment depends upon the return of service of citation, unaided by other evidence. The return is defective, for it shows a service made upon Corcoran's wife, without stating that he was absent from his domicil at the time of service. The code allows a service by delivering the citation to a free person, apparently above the age of fourteen years, living in the house when the defendant is absent. 189 C. P. The fact of absence must appear. Oakey v. Drummond, 4 Ann. 363. Kendrick v. Kendrick, 19 L. R. 38.

When this suit was brought against Riddell to annul the judgment, he callee in warranty the Citizens’ Bank, from whom he purchased, and prayed, that it case it should be decided that the judgment against Corcoran was null, the ban should be condemned to pay him its amount, with interest and costs; and all prayed for general relief. " ■

It appears that the bank obtained a judgment against Whalin and Corcora on sundry notes made by Whalin, for the payment of which Corcoran was s¡ to have bound himself. This judgment the bank assigned to Riddell, for a pn in cash equal to about one-tenth of its amount, by a written transfer, in whiel was stated that the assignment was made without any recourse or claim wlsoever against the vendor. The district judge was of opinion that, under .s agreement, the defendant took on himself all the risk of the speculation, and.d no right to look to the bank for reimbursement. There being no evidence ofiy additional agreement, tlie liability of the bank rests solely upon the written contract, and, we are of opinion, that the district judge erred in its interpretation. It unquestionably relieved the bank from any guarantee of the solvency of the debtors, but not from the implied warranty of the existence of the debt at the time of the transfer, in the form in which it purported to exist, that is to say, in the form of a judgment. It turns out that the judgment had no legal existence. Thus, the indebtedness of Corcoran, supposing it to exist at all, of which we have no evidence, exists in a form less advantageous to the purchaser. He has not the right of issuing execution against Corcoran, nor the means of obtaining a Judicial mortgage upon his property; and the indebtedness of Corcoran is as matter in pais and disputable, instead of being res judicata. If we were permitted to interpret the language of the contract by the mere standard of common parlance, considered in connection with the lowness of price, we might perhaps say, that any warranty whatever was excluded. But the code is very stringent on this point, and has expressly provided that, even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk. This principle of .the contract of sale, applies not only to the sale of corporeal things, but also to the sale of a debt. See Civil Code 2616. Troplong No. 935, 936, 937. Merlin verbo Garantió des creauces. Toler v. Swayze, 2 Ann. 881.

We are of opinion, therefore, that the district judge erred in giving judgment in favor of the bank, and thus throwing upon Riddell the costs of the action of nullity. k

We are clearly of opinion that Riddell was not entitled, under the terms of the sale, to recover from the bank the whole amount of the debt purchased by him at one-tenth of its face. The bank was in good faith; and the true equity between buyer and seller, in a case of this sort, is, clearly, that neither should be enriched by the transaction, if it be rescinded. The recourse of Riddell must-be limited to an indemnity for the costs of this action and to the restitution of the price. If there had been a formal prayer for the rescisión of the sale, so as to have presented a distinct issue as to his right to such relief, we would have accorded to it, under the evidence before us. But, as the case is presented, it is more equitable to leave the matter open, relieving him only to the extent to which he was clearly entitled Indeed, as the cause has been conducted, it does not appear whether Riddell desired to annul the sale, or whether the bank might not have assented to the rescisión, if asked; for, it will be observed that the validity of the judgment against Whalin is undisputed.

It is therefore decreed, that the judgment of the district court, so far as it annuls the judgment against Corcoran, be affirmed; that, in other respects, it be reversed; that all the costs of suit in the court below, and those of this appeal, be paid by the Citizens' Bank, and that the right of Riddell to sue for a rescisión of the sale, be reserved.

        Preston, J., declined sitting in this case, being a stockholder in the Citizens’ Bank.


text:
    Riculfi & Co. v. Delacroix & Co.
    An assignment made by an insolvent, which stipulates for an absolute discharge of the assignor, and excludes all those creditors who would not sign such discharge from any participation in the dividends, is null.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    Bounty, for plaintiff.

      L. Janin, for defendant.
   By the court:

Slidell, J.

This appeal comes before us upon a confused and imperfect record. An examination of the case, under such circumstances, has not satisfied us that the appellants are entitled to a reversal of the judgment, or that injustice has been done.

We are clearly of opinion, that the assignment made by Fuselier, who was insolvent, which a portion of his creditors accepted, and under which Blanchard and Rochereau were appointed agents or assignees, was illegal on its face, inasmuch as it stipulated for an absolute discharge of the assignor, and excluded all those who would not sign such discharge, from any participation in the dividends. The assignees, and others, may have acted with good motives, with a belief that the assignment was best for all concerned, and in a natural spirit of indulgence to a very young man, who seems to have been the victim of the faults of others, and his own inexperience. But the assignment was in manifest violation of the wise policy of our laws, and cannot be sustained against the plaintiffs, lawful creditors at the date of its execution.

The confession of judgment in favor of Rochereau et al., was illegally obtained, as against the plaintiffs. The point of non-joinder of the persons associated with the appellants, Rochereau and Blanchard, in that judgment, appears to us to come too late.

Judgment affirmed, with costs.


text:
    Municipality No. Three v. The Levee Steam Cotton Press Company.
    The acceptance of a dedication to tho public, implied from user, is a deviation from tlic civil law proper, forced, as it were, upon courts, by the necessities of the country, andresting purely upon precedent. But when tho dedication rests upon the naked acceptance for the public, whoever accepts must be clothed with the authority of tho sovereign, or the acceptance is not binding.
    The right to establish public places and to change their destination, is an attribute of sovereignty which the Legislature may delegate to corporations. The Legislature of Louisiana has delegated this power to the city of New Orleans, without reservation; under the grant, it is competent for the city government to accept a dedication of public streets, and equally competent for it to annul the acceptance before the streets have been opened, provided no vested right, acquired under the dedication, is affected by the change.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Roselius, for plaintiffs.

      L. Janin, for defendant.
    If the dedication was only inchoate, not followed by use, the council had undoubtedly the right to renounce it with the consent of the owner of the land, no rights being as yet vested in any one under the dedication. When a street has been laid out by a proprietor and accepted by the council, can it be pretended, that while it was still unopened and existed only on paper, and before any sales had been made of the property, the council could not, with the consent of the proprietor, alter its direction, if they found another direction more useful to the public ? To deny this right, would be declaring, that municipal corporations have power to do harm, and that they are powerless to do good, and that they cannot correct their own errors, however palpable they might be, and though no one could be injured by the correction.
   By the court:

Rost, J.

The plaintiffs sue for the purpose of compelling the defendants to open, at their own expense and charge, certain streets, through the property over which the buildings and machinery of the cotton press are erected The facts of the case are stated as follows, by the district judge in his opinion:

“In May 1831, Madame Lalaurie addressed a letter to the City Council of New Orleans, asking their approval of a plan, in accordance with which she proposed to convert a portion of rural property into urban property; a copy oí this plan is annexed to the petition. On the 10th May, 1831, the council approved of the plan, and granted the requisite permission to open the streets designated therein. The plan appears to have been deposited in the archives of the municipality. On the 18th July, 1831, Madame Lalaurie again addressed a letter to the council, stating, that inasmuch as she had not been able to carry out her intention of converting her property into a faubourg, she requested that they would consider the proposition as not having been made, “ de consider comme rionavenue la demande que je lui avais faite pour étre autorisée á établir le faubourg Delphine.” She also asked that they would pass a resolution to annul their previous action on the subject, in order that she might be able to dispose of her property to better advantage. This letter was acted upon, on the22dof July, 1831. The council repealed the resolution of the 10th May, 1831, and authorized her to withdraw her plan, which was accordingly done. On the 26th July, 1831, the whole of the property designated on the plan, including three lots which had been sold to Rabourn and Lefort, were purchased by the defendants.”

On the 10th April, 1833, the President of the Cotton Press Company, presented a plan of division of their property (being the same which they had purchased of Madame Lalaurie) to the council. This plan was approved and adopted, and the faubourg was laid off in accordance therewith. By this last plan, the spaces which the plaintiffs claim as public streets, were reserved for the cotton press; they had previously been built upon by the defendants, and have been in their private possession and use ever since.

On those facts, the main question which the case presents is, whether the city council could surrender the right to the opening of the streets represented in the first plan, as running through the property of the defendants 1 The appeal is prosecuted by the municipality, from a judgment recognizing that right,

It is not pretended that the streets were ever opened or used by the public, and it is conceded, that as soon as the ordinance, revoking the acceptance of the offer of Madame Lalaurie, was passed, the defendants, purchased the property, and were permitted to erect upon it costly buildings and machinery, the removal of which over the places claimed for streets, would cause them an injury of $30,000, besides destroying the usefulness of the property as,a cotton press. But the plaintiffs contend, that the presentation of the plan was an offer to dedicate the streets to the public; that the approval of it by the municipality, is an express acceptance of the dedication, and that the dedication once made and accepted, could not be annulled by any subsequent act of the parties, but must remain in force, until the destination of the property is changed by the sovereign power of the State.

The rule that things ultra commercium, can only be brought back into commerce by the act of the sovereign, is the corollary of. that elementary principle of the civil law, that the sovereign alone is competent to place things, which are in commerce ultra commercium, and the appellants are placed in the dilemma that if the dedication was not revoked by the second ordinanco, for want of council, it was not, for the samo reason, legally accepted by i, U UXUiUUUvd.

, The acceptance of a dedication to the public, implied from user, is a deviation from the principle of tho civil law, forced, as it were, upon courts by the necessities of the country, and resting purely on precedent; but when, as in this case, the dedication rests upon the naked acceptance for the public, whoever accepts must be clothed with the authority of the sovereign, or the acceptance is not binding.

The right to establish public places and to change their destination, is, like that of levying taxes, one of the attributes of sovereignty; both are vested in the Legislature by the Constitution, and it may delegate part of those powers to corporations or individuals, if, in its opinion, the public interest requires it. Thus the power of taxation has been delegated to police juries, municipal corporations, school directors and others.

The power of opening, widening and continuing streets, was, in like manner, delegated to this city by the 19th section of the act of incorporation, and, under it, the plaintiffs had clearly the right to accept the streets offered by Madame Lalaurie through her property.

This delegation of power is made without any reservation, and the city government can do, under it, all that the Legislature has a rightfto do, in the opening of new streets ; it represents not only the city, but the public at large, and may revoke ordinances establishing new streets, until they are opened, if, in the exercise of its discretion, it ascertains that the opening of them would bo injurious to the public interest; provided, however, that no vested right acquired under the dedication, is affected by the change.

There is another consideration dwelt upon by the district judge, which cannot fail to have great weight with all just men. It is, that the plaintiffs accepted the new plan offered by the defendants; encouraged them to build and enlarge their cotton press, and that they and the public have slept twenty years upon their pretended right; the equity as well as the law of the case, is against them.

Judgment is affirmed, with costs.


text:
    Taylor and Hadden v. B. L. Joor.
    It is the settled jurisprudence of the United States, that the plea of a statute of limitation to an action on a judgment rendered in another State, is a plea to the remedy, and, therefore, the lexj'ori must govern. There is nothing in the Constitution of the United States, orlaws under it, to justify an exception to the rule.
    from tho Fifth District Court of Now Orleans, Buchanan, J.

      A. N-Ogden, for plaintiffs.

      J. H. Van Balsón, for defendant.
   By the court:

Eustis, C. J.

This suit was commenced, by attachment, for the recovery of the .amount of a judgment rendered against the defendant in tho Circuit Court of Wilkinson County, in the State of Mississippi, on the 14th of October, 1842. There was judgment in the district court for the plaintiffs, andlhe defendant has appealed.

The defence was a plea of prescription; and the district judge held the term of prescription of the law of Louisiana, to be exclusively applicable to the case.

We have recently considered this subject, in the case of Bacon et al. v. Dahlgreen, and we then held, under the Code of Practice, art. 13, and the well established jurisprudence, that the prescription of the forum, or of the place where the remedy is sought, must govern in all suits for the recovery of debts.

The principal ground on which a reversal of this judgment is sought is, that the Constitution of the United States excepts judgments rendered in courts of the States, from the operation of this general rule. We do not so understand the operation of the Constitution and Laws of the United States, which relate to the effect of judgments. By virtue of their provisions, a judgment, rendered in other States, is put on the footing of a domestic judgment, by which is meant, not that it has the force and effect of a domestic judgment beyond the jurisdiction declaring it to be a judgment, but a domestic judgment as to the subject matter 01 the suit; and, if it is conclusive in the State where it is pronounced, it is equally conclusive in other States.

It is the settled jurisprudence of the United States, that the plea of a statute of limitations, to an action on a judgment rendered in another State, is a plea to the remedy, and therefore the lex fori must govern. McElroy v. Cohen, 13 Peters, 327.

The statute of the State of Mississippi, relied upon by the defendant, provides, that no judgment rendered in the courts of that State shall be revived by seire facias ; and that no action of debt shall be instituted thereon after the expiration of seven years from the date thereof; nor shall any execntion issue thereon after seven years from the time the last execution issued on said judgment.

This is astntute oflimitation by its very terms, and is so considered in the courts of that State ; and it is not a valid plea to the plaintiffs’ action.

The judgmeut of the district court is therefore affirmed, with costs.


author: Preston, J. Prestoh, J.

text:
    The State of Louisiana v. James Cassidy.

      Charles Ford gave a bond, with James Cassidy as bis surety, in the sum of $1000, conditioned, that he should appear before the First District Court, to answer ¡ftharge of larceny, and not depart without leave of the court. The clerk issued a notice, stating that, on a certain day, the party to the appearance bond was called, but failed, to appear; that the surety was called upon to produce him, but failed to do so; that tlie bond was therefore forfeited, and judgment entered against the surety. It was held, that this was a sufficient notice under the. act of the 11th of March, 1837.
    The party to such a bond should, if there be legal grounds, make an application to the court to set aside the judgment rendered upon it, within ten days after the notification thereof. If such application be overruled, be is allowed ten days, from the judgment overruling his application, for a suspensive appeal; and if he make no such application, he is allowed a suspensive appeal within ten days from the notification of the judgment. If no such appeal be taken within the periods stated, he is entitled to a devolutive appeal only.
    Where it does not appear by the petition ior a writ of prohibition, that the sheriff was about to sell the property seized, before the final disposition of the injunction suit, [the object of which was to restrain him from executing the judgment, but merely that he was about to close up the house seized, the writ willnot he granted.
    Although the statute provides, as the condition of the bond, that the accused shall appear; yet that means an effectual appearance, that is, that the party shall remain and submit to trial. Where, therefore, the bond which the accused and his surety signed, expressed on it face, that the accused shall be and appear before the First District Court of Hew 0 leans, and not depart thence without leave of the court, to answer to the complaint brought against him for larceny, it was held, that such a condition was not more onerous than that which the spirit of the statute imposed.
    APPEAL from the First District Court of New Orleans, Larue, J.

      T. JET. Howard, for appellant.

      Isaac Johnson, Attorney General, for appellee.
   On an application for a writ of prohibition. By the court:

Preston, J.

On the 20th of June, 1850, a judgment for $1000 was rendered by the First District Court, against James Cassidy, as the surety of Charles Ford, on a bond conditioned for his appeai'ance before the court to answer a charge of larceny preferred against him by the district attorney, in that court. Ten days’ notice of the judgment was given to him, in pursuance of the act of the 11th of March, 1837 ; he did not cause it to be set aside for any of the reasons or by the means specified in the act, and on the 2d of July, 1850, the judgment was signed. Sometime afterwards, though the date does not appear, execution was issued against him upon the judgment, and the sheriff, under the directions of the district attorney, proceeded to seize his property. On the 28th of April, 1851, and we suppose sometime after the execution was issued, he took an appeal from the judgment.

It appears, moreover, by his petition to this court, for a writ of prohibition against the execution of the judgment, that he obtained an injunction against the further execution of the judgment. The injunction was dissolved, and he took a suspensive appeal from the judgment by which it was dissolved. He then applied to the district court for an order to restrain the sheriff from shutting up the house he had seized, on account of the appeals he had taken in the case. The district court refused to grant the application, on the ground, that the appeal from the judgment of forfeiture of his bond, was a devolutive, and not a suspensive appeal. He now applies to this court for a writ of prohibition, to restrain the district court and sheriff from proceeding under the execution.

The applicant has placed before us, the record of the appeal from the judgment of forfeiture before us, by which the dates appear; and that judgment was rendered the 20th of June, 1850, and that the appeal was taken only on the 28th of April, 1851. The date of the execution does not appear, but we presume it was long after the notice of judgment. The appeal was devolutive, and not suspensive, because taken more than ten days after the judgment and notice of the same.

It is urged, however, by the applicant, that a copy of the judgment, after being signed, should have been served upon him. The third section of the act of the 11th of March, 1837, prescribes, that it shall be the duty of the clerks of the several district courts out of the city of New Orleans, and of the criminal court, to issue notices of such judgments to the parties concerned, as in ordinary civil cases, and on service and return thereof, after the usual delay, to issue executions on all such judgments, which it is made the duty of the several sheriffs throughout the State, to execute without delay.” Bullard and Curry’s Dig. 281-2.

A notice was issued by the clerk, stating that, on a certain day, the party to the appearance bond Was called, but failed to appear; that the surety was called upon to produce him, but failed to do so; that the bond was thereupon forfeited, and judgment entered against the surety for a thousand dollars. This is the notice which has always been given in such cases, and we think fully complies with the letter and spirit of the law.

After this notice of the judgment, there were various means and reasons, specified in the 1st and 2d sections of the act, for which it might be set aside, on application within ten days, and if the party was not possessed of any of these means of relief, or did not resort to them, it has been understood, especially since the allowance of appeals in criminal cases, that he might seek relief, within those ten days, by a suspensive appeal; but that if the appeal was not taken within the ten days, it would be only a devolutive appeal. If he had made a formal application to set aside the judgment within the ten days, no doubt ten additional days would have been allowed to appeal, after it was overruled. This is a reasonable construction of the law, especially as promptness in the disposition of criminal eases, and matters cohnected with them, is so indispensable to the welfare of society.

The suit for an injunction, the judgment disallowing it, and the appeal from that judgment, are not before us, and we cannot say, therefore, that those proceedings justify the application for a prohibition. The injunction could only maintain things in statu quo, until its final determination. Now, it does not appear by the petition for a writ of prohibition, that the sheriff was about to sell the property seized before the final disposition of the injunction suit, but merely that he was about to close up the house seized, which he might do for the purpose of keeping and preserving it under his seizure, until the injunction suit should be finally terminated. We could not legally restrain him from doing so, as he is accountable for the proper preservation of the things seized by him.

In the record of appeal from the judgment of forfeiture, we have examined the assignments of errors, and, as at present advised, do not think them well founded. This is an additional reason for refusing to grant a writ of prohibition, though we will not express a positive opinion on the appeal, until it is regularly tried.

The application for a writ of prohibition, is therefore dismissed, at the costs of the applicant.

Same Case — On the Merits.

Prestoh, J.

On the 29th of May, 1850, James Cassidy entered into a bond to the State as the surety of one Ford, accused of larceny, that he should appear and answer to the charge before the First District Court of New Orleans, and not depart without the leave of the court. He was arraigned, plead not guilty, and put himself on the country for trial. But, on the 20th of June, the day fixed for the trial, though duly notified, he did not appear. A capias was issued, hut he was not arrested, nor ever afterwards appeared.

On the 2d of July, 1850, in pursuance of the act approved the 11th of March 1837, on motion of the district attorney, the bond was declared forfeited, and judgment entered against Ford and Cassidy, in solido, for its amount and costs. In pursuance of the act, ten days’ notice was given to Cassidy to set aside the judgment, if he had any cause. A like notice was issued to Ford, but he was not found.

Cassidy did not attempt to set aside the judgment in the district court, but, on the 28th of April, 1851, took this appeal.

He assigns for error, that no notice was given to the accused to appear and stand his trial; that the notice, if given, must have been a written notice, emanating from the clerk’s office, served by the sheriff, and his return on file, and that there is nothing in the record showing such notice. The statutes do not prescribe in what form the notice shall be given, and the rules of the court are not before us. In their absence, we should suppose, that an oral notice of the day of .trial, when the prisoner was arraigned, would have been sufficient. On the day of trial, an entry is made that the accused did not appear for trial, though duly notified. We are at least to presume, that he was duly notified, since the defendant did not make the objection within the ten days allowed by law for doing so.

He assigns in tho next place for error, that the condition of the bond was, that the accused should appear in court when notified. He did appear and pleaded to the information filed. The law of 1837, only authorized a forfeiture of the bond and judgment on it, when the accused failed to appear on the day named; leaving to the State recourse by ordinary action only, for any subsequent failure, to abide by the decision of the court. The bond was therefore improperly forfeited, and judgment rendered against the surety, without observing the due forms of law, and contrary to law and the Constitution of the State and of the United States.

The condition of the bond in this case, as expressed on its face, is, that the accused shall be and appear before the First District Court of New Orleans, to answer to the complaint brought against him for larceny, and not depart thence without the leave of the court. It is true, the statutes provide, as the condition of the bond only, that the accused shall appear; but that means an effectual appearance; and that effectual appearance is, that the party shall remain and submit to trial and judgment. The condition expressed in the bond under consideration, does not, therefore, exceed the legal import of the condition required by the statutes. It is usual and proper, indeed, on appearance, to continue the bond with the assent of the surety, and we have no reason to doubt that this course, being a mere matter of practice, was pursued in the present case, as the surety did not make the objection when notified to offer any reasons he might have to set jiside the judgment of forfeiture against him. As to the notification mentioned in this bond and assignment of errors, we have already disposed of it.

It is next alleged, “ that the act of the Legislature under which the judgment of the lower court was rendered, is unconstitutional, null and void, and has been repealed by subsequent legislation.” No argument or explanation has been offered in support of this ground.

It is lastly urged, “that the obligation of-the surety was a civil one only, and must be enforced according to the rules prescribed for civil actions. The bond for the appearance of persons accused of crimes, is a means provided to ensure the prosecution and punishment of criminals; the forfeiture of the bond, by judgment, has always been regarded as a criminal proceeding, and whether criminal or civil, was obtained, in this case, in the mode pointed out by the act of the 11th of March, 1837, passed expressly for the purpose.

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

        Eustis, C. J., was absent when the application for a writ of prohibition was before the court.


author: Seidell, J.

text:
    Quarrier et al. v. Richards et al. Captain and Owners of the Fanny Smith.
    In estimating the damages resulting from a collision, a claim for “loss of the use of a vessel, and of the profits which she could and would reasonably have made during her detention,” will not be allowed, at least in a case where the collision was not wanton and malicious. The damage is too remote and uncertain.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J..

      Garnet Duncan, for plaintiffs.

      Wolfe and Singleton, for defendants.
   By the court:

Seidell, J.

The owners of the steamer James Hewitt sued the owners of the steamer Fanny Smith, to recover damages 'incurred by a collision, which they charge was occasioned by the fault of the defendants.

The case was tried before two juries, each returned a verdict for the plaintiffs. On both occasions, the plaintiffs were dissatisfied with the amount of damages awarded to them. They joined in the application made by the defendants for a new trial after the first verdict, and obtained, on their own application, a new trial after the second verdict. The parties then agreed to try the cause before’the district judge, without a jury. He, also, came to a conclusion in favor of plaintiffs, and gave a larger amount of damages than either jury had awarded. The defendants appealed, and the plaintiffs, in their answer to the appeal, ask an increase of damages.

The doctrine has been declared over and over again, in this court, that a party will not be permitted to recover damages for a collision, when his own fault has substantially contributed to cause the disaster. There is no reason to believe, from the record, that any misapprehension existed in the minds of the jurymen on this point; and it is clear, from his written opinion, that there was no such misapprehension in the mind of the district judge. -We must therefore conclude, that the two juries, and the district judge, were satisfied that the collision was occasioned by the fault of the defendants, and that they acquitted the plaintiffs of any negligence or mismanagement on their part.

These two verdicts, followed by the opinion of the district judge, are entitled to very great consideration; and, nothing would authorize us to disturb them short of a very clear and positive conviction, that they had misunderstood the evidence, or erred in estimating its weight — in a word, that manifest injustice had been done. An attentive perusal of the'testimony, has by no means brought our minds to such a conviction. Indeed, we are not prepared to say, that we would not have drawn the same conclusion which was adopted by the jurors and the district judge, if the causé had been put originally before us, without the assistance of their opinions. It is true, there is some conflict of evidence; but the testimony, we think, preponderates in favor, of the proposition, that the Hewitt was in her proper position and pursuing her proper course. On the other hand, although the collision was not wanton on the part of the defendants’ steamer, it was produced by causes which ought to have been foreseen, and could have been avoided, with reasonable diligence. It seems the Fanny Smith and the Hewitt were ascending the Mississippi, and were passing through a chute. Upon entering it, the Hewitt was, under the circumstances, to be considered as in advance, and was so considered by the pilot of the Fanny Smith, as appears from evidence offered by the defendants themselves. The course of prudence and usage, as we infer from the evidence, was to let the Hewitt continue in advance through the chute, or at least use very great caution in the attempt to pass her. Accordingly, it appears that the captain of the Fanny Smith at first determined to keep behind, until the Hewitt got through the chute, and gave corresponding orders. But this discreet intention, without any sufficient reason that we have been able to discover, was subsequently abandoned, or not duly heeded. The boat was kept on at a rate of about nine miles per hour. Coming upon shoal water, the indication of which was apparent, and should have commanded prompt attention, the steamer, after a little while, took a sudden sheer. Upon the testimony, we are satisfied this consequence ought to have been foreseen, and could have been guarded against by running the boat at a less speed. The result of the sheer was, that the Fanny Smith ran across towards the Hewitt, and in a brief space of time, being for the moment comparatively uncontrolable by her helm, and there not perhaps being sufficient time to back her engines, her bow struck the Hewitt violently on the larboard guard, a little abaft the shaft, breaking her plummer-block, gallows-frame, &e.

It may be conceded, that it is for the convenience of the public and the interests of commerce, that steam vessels should proceed with rapidity; but we think that the law will not justify them in proceeding with rapidity under all circumstances, and at all hazards. Such was the opinion of the Supreme Court of the United States in Nowlan v. Stebbins, 10 Howard 607; and we must say that, however praiseworthy be that spirit of enterprise, described by -counsel, which hurries our countrymen on in the rapid execution of whatever they undertake, we ought not to forget that the asfety of human life and property, are also matters of public concern.

It is said by the plaintiffs, that the court below, besides awarding the expense of repairs, should have made an allowance for the general damage, resulting from the violence of the shock, in the opening of seams, starting timbers and joints¶ throwing machinery out of line, and impairing the general strength and efficiency of the boat. The evidence upon these points is not sufficiently accurate and specific to enable us to make an assessment, which the district judge did not make, and probably thought he had not the means of making, with reasonable certainty.

Among other items, there is a claim in the petition for $1500 damages for this: “ that during the detention for repairs, caused by said collision, the petitioners were deprived of the valuable use of their vessel, and of the profits which she could and would reasonably have made during the detention.” The claim appears to us untenable, at least in a case like the present, where the collision was not wanton and malicious. See Blanchard v. Ely, 21 Wendell, 243. The objections to it are remoteness and uncertainty.

Judgment affirmed, with costs.


author: Smbeul, J.

text:
    Rugely, Blair & Co. v. Sun Mutual Insurance Company of New York.
    If a ship, soon after sailing, becomes so leaky as to be unable to proceed on her voyage, and this cannot be ascribed to stress of weather or accident on the voyage, the fair and natural presumption is, that the disability arose from causes existing before setting out on her voyage, and consequently that she was not seaworthy when she sailed. In such cases, therefore, it is incumbemt on the assured to show that, at the time of her departure, she was in fact seaworthy, and that her inability arose subsequent to the commencement of the voyage.
    In case of shipwreck, where the cargo is in condition to reship, and where the means of transportation can be procured within a reasonable time, the master has no legal right to sell; it is his duty to forward the cargo to its port of destination.
    Where there is a legal justification for the master to sell the cargo, yet it is his duty to give such notice, as will warn the public of the time and manner of the sale.
    If in case of shipwreck, the reshipment of the cargo is' proper and practicable, and if, instead of forwarding, the master sell it, the insured Gannot abandon and claim for a total, hut may recover for a partial loss.
    from the Fifth District Court of New Orleans, Buchanan, J.

      JRoselius, and Benjamin and Micou, for plaintiffs.

      J■ A. Maylin, for defendants.
    Where the vessel is lost or disabled, and the cargo is saved, and the master has the means and power of transhipping and sending on the cargo, a loss, caused by his neglect to do so, cannot be recovered of the insurer. 9 Johnson, 21. Ib. 17. 4 Wendell, 45, S. C. 7 Cowan, 504. 1 John. 335. 5 Binney, 595. 7 Howard, 595..
    The sale was unnecessary and illegal. The doctrine is well settled, that a sale of goods cannot be made unless in a case of absolute and supreme necessity, such as sweeps “ all ordinary rules before it.” 1 Arnould, 191. “ The power, of sale,” says Mr. Arnould, Am. ed. p. 198, “however, where the ship is not disabled, or where there exists means of transhipment, must be strictly confined to cases in which the cargo is of a perishable nature, and has suffered so much sea-damage as renders it physically impossible, that if sent on, it can arrive in specie at its port of destination.”
    “ The master is not at liberty, in case of shipwreck, to sell the cargo, merely on the ground that a sale will be the best for all concerned, and that a prudent owner, if present, would sell under the same circumstances, but he will be justified in selling, only by a legal necessity.” Ib. 197 (note).
    The abandonment must be made within a reasonable time, and what constitutes a reasonable time, depends on the circumstances of each case. Thus, in England, nine days. 15 East. 13; and even five days have been adjudged an unreasonable time. 5 M. and S. 47. Hunt v. Boyal Exchange Association Company. The insurers and insured in this case, resided in the same city, within five minutes walk of each other.
    It is true that Mr. Matthews on July 31, 1851, wrote to the plaintiffs that he had examined the papers, and, considering the proceedings illegal, he could not pay their demand. Supposing that their right to abandon commenced from that date, they still permitted a week to elapse before they abandoned, which was too late, according to the authorities above cited. Hughes, Am. ed. 321, et seq. 2 Arnould, Bost. ed. 1175, et seq. 5 Mart. N. S. 564. Mellon v. Louisiana Insurance Company.

    If, however, the court should decide that the plaintiffs have a claim against the defendants, we contend that it can be only for a partial loss. The policy is a valued one, and the mode of adjusting a partial loss, on a valued policy, is fully laid down in 1 Arnould, 309, 310, 311; and the practice in this country, it is believed, universally corresponds with it.
   By the court :

Smbeul, J.

The plaintiffs sue for $7500, the value of one hundred and twenty-five bales of cotton, insured by the defendants under a valued policy on a voyage from Matagorda, in Texas, to New Orleans. The schooner Velasco, in which they were shipped, left Matagorda Bay on the 24th June, 1851, returned to the Bay, on the 26th, in a sinking condition, and, for the purpose of saving the cargo, was beached. The persons who assisted in bringing her in made a claim for salvage, which was submitted, by the captain, to arbitration. A survey was called, and a sale of the cotton recommended. It took place on the 3d July. The net proceeds, after deducting, among other items, thirty-three and one-third per cent salvage, allowed by the arbitrators, amounted to $1177 55. The purchaser of one hundred and twenty-two bales reshipped them to the plaintiffs, in another vessel, which arrived in New'Orleans on the 21st July, 1851. The gross proceeds, at New Orleans, wfere $3595 71, and net proceeds $3151 32. In the latter part of July, the plaintiffs applied to the defendants for payment of a total loss. The agent of the defendants replied, in writing, that he had examined the papers submitted to him ; that the sale of the cotton and other proceedings were irregular and illegal, and that the claim was consequently not recognized. On the 6th August, 1851, the plaintiffs, by letter, made an abandonment.

In their answer, the defendants resist the claim on the ground of the unseaworthiness of the vessel, and also on the ground that the sale was illegal, and in violation of the terms of the policy.

Upon the latter ground the district judge gave judgment in favor of the defendants, and the plaintiffs appealed.

Our attention will be first directed to the question of seaworthiness. The evidence upon that matter lies within a narrow compass, and consists of the protest, the testimony of the captain, taken under commission, and the testimony of Captain Swain, an inspector for New, Orleans underwriters.

The material part of the protest, which is signed by the captain, mate, and two seamen, is as follows : “ That the said schooner being tight, staunch and

strong, and having a full cargo of merchandise on board, in the port of Matagorda, bound for New Orleans, they, on Monday the 23d day of June, 1851, having every thing ready and fully prepared for sea at 5 o’clock, A. M. of said day, hove up the anchor, proceeded on their intended voyage, and stood down the bay with pleasant weather, and wind from the N. N. W.; that.at 10 o’clock, A. M. of said day, it became calm, and they came to anchor; at 1 o'clock, P. M. of said day, the wind having sprung up, they hove up the anchor, and proceeded down the bay ; at 5 o’clock, P. M. they took aboard a pilot to carry them over the swash, and at 7 o’clock, P. M. came to anchor off' Duerow’s Point. Tuesday, the 24th June, at'5 o’clock, A. M. hove up the anchor and made all sail, with a fresh breeze from the N. W. and proceeded down the bay to the bar; tried the pumps and found no water; at 6 o’clock, A. M. took a bar-pilot on board, and at 8 o’clock, A. M, after crossing the bar, discharged the pilot, and proceeded on their intended voyage with the wind from the E. N. E., making their course towards the S. E. with pleasant weather; at 12 o’clock, M. hove ship, and stood in shore for land; at 6 o’clock, P. M. being close in land, hove about, and stretched off with the wind from the N. E. Sounded the pump and found no water, and continued on their course until midnight, when they tacked ship, the wind having canted more to the eastward, and increasing; tried the pumps and found no water.

“Wednesday, June 25, 1851. At 1 o’clock, P. M. found the vessel would not steer as she ought to do; tried the pumps and found they would not suck ; went forward and found the water over the forecastle deck; called all hands immediately on deck to the pumps, which were kept constantly going, and endeavored to make land, the wind increasing towards the eastward, and the water increasing so fast, that they found that they were in a sinking condition.”

At daylight, went aloft to look out for land. Saw a steamship running down. Made a signal of distress, butno notice taken; the vessel at this time being waterlogged, and impossible to steer; the wind still increasing, blowing very heavy, and the atmosphere very thick. At 9 o’clock, A. M., made the breakers on the bar, with the signal of distress flying; no pilot appeared ; followed the breakers down, looking out for the pass; the sea breaking very high. At length found a place where they thought they would go over, not being certain whether it was the pass, or not; saw a pilotboat inside, but no appearance of any effort made to come to them, the sea all the time breaking fearfully over the bar, and concluded that they could not come to their assistance. Finding no alternative, as the vessel was making water fast, with two men at the helm, and the remainder of the crew assisting steering with her sails, managed to get Her through the breakers, in the eastward or old channel, without touching, the vessel leaking fast, with all hands at the pumps. After crossing the bar, the vessel unmanagable, with the Union Jack down, and all their available power at the pumps to keep her from sinking, the pilotboat came off, (the wind having increased to a gale); threw a line on board the pilotboat, for the purpose of towing them on shore; but, the gale still increasing, the rope parted, and the vessel making water faster, though the pumps were constantly kept going. Kept their signal of distress flying, and at half past nine o’clock, Cap. Thomas Ducrow came off from St. Joseph’s Island in a small boat, and tendered the services of himself and crew, to bring us into port. Finding themselves in a sinking condition, the water making fast, and the wind still increasing, they accepted his services to bring them into a safe place, where the vesseland cargo'could be preserved; and, about 11 o’clock, A. M., with much difficulty, got alongside of Ducrow’s wharf, &c., &c.

The captain, who was examined under commission by the plaintiffs, was asked by them, whether he desired to make any explanations or corrections of what was stated in his protest. He answered, thathe had nothingto add; that it was correct. With regard to the condition of the ship, he stated that it was good before her departure; that she performed well on previous voyages, as well as any vessel he had been in; and that she was tight, staunch and strong. On his cross-examination he stated, that the vessel was about eight months old, built of white oak, and not coppered; that he saw her bottom last at New York; that she was tight when he boarded her at Matagorda; that she did not leak more on former voyages than vessels usually do; that he did not, when the leak was discovered, find out the cause of it, “ but judged it was from distress of weather. After she was discharged, and pumped and bailed out, he found one leak between the mast, and in the centre case.”

Swain testified, that he was inspector for several ofthe insurance offices, and well acquainted with the character and class of vessels. That, from the facts detailed in the protest, he considered the vessel unseaworthy at the time she sailed. He assigned as his reasons for that opinion, that the protest showed no bad weather from the time of her getting under weigh, until they found her leaking so fast that they could not keep her free. He also stated, that a vessel not coppered, is liable to be worm-eaten.

Such is the substance of all the evidence before us upon the question of seaworthiness ; and the strong impression it has produced upon our minds is, that she was not seaworthy when she sailed.

When a ship becomes so leaky as to be unable to proceed on her voyage, soon after sailing on it, and this cannot be ascribed to stress of weather or accident on j^g voyage, the fair and natural presumption is, that it arose from causes existing j 8 , before her setting out on her voyage; and, consequently, that she was not seaworthy when she sailed. In such cases, therefore, it is incumbent on the assured to show that, at the time of her departure, she was in fact seaworthy, and that her inability has arisen from causes subsequent to the commencement of the voyage. Such is, substantially, the rule, as stated by an able commentator, and it appears abundantly sustained by the authorities. See Arnould, vol. 1, p. 686. Phillips 1, p. 324. Smithen v. Memphis Insurance Company, 3 Ann. 175. Talbot v. The Commercial Insurance Company, 2 Johns. 128. Watson v. Clarke, 1 Dow. 344.

In Talbot v. The Commercial Insurance Company, a vessel sailed with a fair wind and moderate weather, and in the evening of the following day suddenly sprung a leak, in consequence of which she foundered, without any apparent cause or extraordinary accident to which the leak could be ascribed. It was held: that the loss was to be presumed to have arisen from her not being seaworthy at the time she sailed. A verdict of the jury in favor of the assured was set aside, and a new trial granted.

In Munro v. Vandam, cited by Park, 289, it was held, that if a ship sail upon a voyage, and in a day or two becomes leaky, and founders, or is obliged to return to port, without any storms, or visible or adequate cause to produce such an effect, the presumption is, that she was not seaworthy when she sailed; and the jury, upon plaintiff’s own case, may draw such a conclusion.

The question then is, whether the fair and reasonable presumption of unseaworthiness, arising from the facts of the voyage, as exhibited by the protest, is counteracted and overthrown by the testimony of the master. And we are constrained to say, that his testimony has not brought home such a reasonable conviction to our minds, as would induce us to believe that some unknown accident or peril of the sea, and not the defectiveness of the vessel, was the cause of the leak. We cannot concur with the learned counsel for the plaintiffs, in the opinion, that this case is as strong as that of Smithen v. The Memphis Insurance Company. In that case, it is true, the cause of the accident was unexplained. But numerous witnesses testified in favor of the seaworthiness of the barge. The evidence came not merely from the officers and crew of the steamer that had the barge in tow, but from other reliable sources, such as two inspectors, at her port of departure, &c. So that the court there characterized the evidence of seaworthiness, as extremely full and cogent. And it should also be observed, that the barge was navigating the Mississippi, where there is peculiar danger from snags, shoals, logs and sand bars; that she was in tow of 'a steamer, and that, under all the circumstances, the chances of an external peril being encountered, without its occurrence being discovered at the moment, were much greater than in the case of a ship at sea.

We do not pretend to lay down any rule, as to the extent and nature of the testimony that must be adduced in a case of this sort, to overthrow the reasonable presumption which the law raises ; but the evidence should certainly be stronger than has been offered in this case. It is proper to ad d that, in Cost v. The Delaware Insurance Co., 2 Washington, 376, Mr. Justice Washington observed, that if a vessel, after she commences her voyage, becomes unfit to prosecute it, and has been exposed to no extraordinary perils of the sea, the circumstance may raise so strong a presumption of her having been unseaworthy at the time of her departure, as to call upon the insured to give strong evidence to repel the pre- .. sumption.

We feel a reluctance, however, to close the casé upon this point against the A 1 65 plaintiffs, for two reasons: The district judge did not act upon it, so that we have not the benefit of his opinion as to the weight of evidence; and the plaintiffs may have been thrown off their guard, in the preparation of this branch of the litigation, by the fact, that the underwriter originally made no objection on that score, to the payment of the loss. We have thought it best, under all the circumstances, to leave the matter open for future inquiry.

The district judge, as we have already stated, decided the case against the plaintiffs on another ground, which we proceed to consider. The policy states : that “in.case of the loss of the vessel, or a part of the cargo, or of damage to the whole or part thereof, it shall be the duty of the master to forward such parts of the cargo, as shall be saved in a fit condition to be shipped to its port of destination, by the best conveyance obtainable, at the place where the said goods may be, or at any other place within a reasonable distance, and the enhanced expense, not exceeding the amount insured, shall fall on the insurers.”

From the evidence, it appears that the cotton was in a fit condition to be shipped to New Orleans. The means of transportation to New Orleans, could have been had within a reasonable time. There were means of consulting underwriters, and others interested, before selling, and no inexorable necessity that compelled an immediate sale. There was an inexcusable precipitancy, and, as we infer, an inexcusable want of publicity in the time and manner of the sale. There was an inexcusable haste and looseness in the proceedings for arbitration as to the salvage. The recommendation of the surveyors, that the cargo should be sold; the sale of the cargo; the agreement with the salvors, to arbitrate the award, all bear date on the same day, the 3d July, 1851.

In view of these facts, of the well settled principles of law, and especially of the stipulation in the policy, we have no hesitation in concluding with the district judge, that the sale was illegal, the abandonment inefficacious, and the claim for a total loss unfounded.

But we are not prepared to say with the court below, that the plaintiffs are thereby precluded from any relief. If the vessel was unseaworthy, there is of course an absence of all claims for the loss against the defendants. But if she was seaworthy, we see no reason, as at present advised, for the entire discharge of the underwriters, by reason of the failure to forward the cargo. The plaintiffs, it seems to us, would still be entitled to indemnity as for a partial loss.

It is therefore decreed, that the judgment of the district court be affirmed, but without prejudice to the right of the plaintiffs, to sue for a partial loss ; the costs of the appeal to be paid by the plaintiffs.

Preston, J. In this case, I desire to express no opinion as to the law or evidence with regard to the seaworthiness of the vessel at the commencement of her voyage, but fully concur in the remainder of this opinion.


author: Preston, J.

text:
    The State v. Benito Alverez.
    The clerk of a court, fro -which a criminal cause is removed fot trial, should endorse on the indictment and other papers received by him from the court, where the indictment was found, that he filed them. Yet where he failed to do so, and the prisoner was put upon trial, but before verdict, amotion was made to endorse the papers nunc pro tunc, it was held: That the court had the custody of the p apers, and it was its duty to grant the motion.
    Objection to 'the pannel or polls cannot be taken advantage of, if not made by challenge, when the jury or jurors are presented to the prisoner on trial. He cannot take the chance of a verdict in his favor, by a jury of his choice, and afterwards object to that jury.
    The newly discovered evidence, which entitles a party to a new trial, is such as ought to produce, on another trial, a different result on the merits.
    APPEAL from the .District Court of the Seventh J udicial District, Stirling, J.

      Lyons, for the State.

      James H. Muse, for the accused.
   By the court:

Preston, J.

The prisoner having been prosecuted, tried and convicted of murder, and sentenced to imprisonment at hard labor in the penitentiary for life, has appealed. He was indicted, arraigned and plead in the parish of East Feliciana, the homicide having been perpetrated in that parish.

Under the 115th article of the Constitution, authorizing a change of venue, and the Act of the 1st of June, 1846, to carry it into effect, the accused made the necessary allegations and proof, and obtained an order that the case should be transferred to and tried in the parish of West Feliciana. The clerk of the district court of the parish of East Feliciana transmitted the papers and copies of the proceedings, to the clerk of the court of the parish of West Feliciana, as required by the statute, aud the sheriff of the one, delivered the prisoner to the sheriff of the other parish.

The 13th section of the Act of 1846 provides, “ that the clerk of the court to which any criminal cause shall be removed, shall, on receipt of the indictment and other papers, enter the cause on the criminal docket of his court, and the said cause shall be heard, tried and determined by the court, by preference, in the same manner as if the proceedings had originally been instituted therein,” p. 109.

The case must have been entered on the criminal docket of the court, for an order was made in the case by its title, “ The State of Louisiana v. Beneto Alverez,” directing a jury to be summoned for the trial, and the list of that jury was served upon the prisoner on the 10th of December, 1851, by the sheriff of West Feliciana. And on the 18th day of the month it appears, by an entry in the case, that the prisoner was brought by the sheriff to the bar of the court, on the charge, and declared himself ready for trial, and was put upon his trial before a jury. But, before they rendered their verdict, it was discovered that, from some oversight, the clerk of the district court of West Feliciana had not endorsed on the papers sent from the parish of East Feliciana, that they were filed, though they were clearly in his possession and keeping as clerk, and were used on the trial.

The law did not expressly declare that they should be filed, though it was undoubtedly proper that it should have been done. Therefore the court, as soon as the omission was discovered, on motion of the district attorney, and in the presence of the prisoner and jury,'on the 19th of December, 1851, ordered them to be filed as of the 9th of December, nunc pro tunc. The court had the control of the records, and it was its duty to order this to be done for their safety and authenticity. The failure to file the record and documents was a mere omission, and the judge, without causing injury to any one, directed that which was proper to have been done some days before, to be done, when the omission was noticed. This so frequently occurs in practice, from unintentional oversight, that the phrase nunc pro tunc is familiarly known as a law term, which is used on such occasions to express, that a thing is done at one time which ought to have been performed at another. The only qualification in relation to it, in judicial proceedings, are, that it ought to be done; that it be done by the leave or order of the court, perhaps in the presence of the parties interested, and that it be done to answer the purposes of justice, and not to do injustice.

No injustice was done in the present case. It was not, as contended, the filing of the documents, that gave the court in West Feliciana the jurisdiction of the case, and the jury power to try the prisoner. His successful motion to change the venue for the trial of an indictment found against him for murder, from East to West Feliciana; the delivery of his person by the sheriff of one parish, to the sheriff of the other, for trial; and the transmission of all the proceedings against him from one clerk to the qther, were the things which gave jurisdiction to the court that tried him, and power to the jury to pass upon his case and acquit or convict. The filing of the papers was a mere form which, without any possible injury to the prisoner, was complied with as soon as it was discovered that it had not been seasonably done.

Similar omissions have, no doubt, often occurred in judicial proceedings in criminfil cases and been corrected in the same manner, and yet we have no precedent, that the correction has been regarded as objectionable by any tribunal. The objection must be supported by authority or fail, for it is intrinsically without any substantial foundation.

The motion in arrest of judgment, based upon this important matter, cannot therefore, prevail.

Nor can the judgment be arrested on account of the charge of the court in relation to it. It was immaterial to the power to try the prisoner; immaterial to his guilt or innocence, as to which; a proper issue between him and the State was presented, in a proper manner, and before a competent tribunal. And, therefore, the charge of the court, that the juiy had nothing to do with the oversight in not filing the papers, and the correction of the omission, was correct; and even if the judge illustrated his opinion by an erroneous view, as to defects in an indictment, it cannot make that material in the case, which was intrinsically immaterial.

Three of the jurymen, who were on the list served upon the prisoner to pass upon his trial, were excused, one on account of age, and two as being school directors. A pannel of forty-eight was provided by law, and summoned in the case, for the express purpose of insuring a speedy trial, and that the case might not be continued in consequence of a deficiency of jurymen from any cause. The prisoner made no objection to the pannel, and did not ask for a continuance of the case. In this respect, the case is entirely different from that of The State v. Howell, in which a continuance of the case was prayed for, on account of such a disparity between the list served upon him, and the number summoned for the trial, as might have operated greatinjustice, and, in effect, have destroyed the beneficent provision of law, that he should be served two days before the trial, with the list of the jury summoned to try him. State v. Howell, 3 Ann. 51.

We have often held, that objection to the pannel or polls, cannot be taken advantage of, if not made by challenge when the jury or jurors are presented to the prisoner for trial. He cannot take the chance of a verdict in his favor, by a jury of his choice, and afterwards object to the jury when the verdict is rendered against him.

The testimony of White, discovered since the trial, was cumulative alone. It may be reconciled with the testimony on behalf of the State. And we concur with the district judge, who has stated it in connection with the evidence of the State, that it ought not to have changed the verdict. It is laid down as an elementary rule by Wharton, 664, that in order to grant a new trial on account of newly discovered evidence, it must be such as ought to produce, on another trial, an opposite result on the merits : and several authorities are cited in support of this principle. We substantially recognized it in the case of The State v. Brette, 6 Ann. At all events, we would not interfere with the discretion of the district court in refusing a new trial, because testimony, merely cumulative, might be produced. The authorities are numerous in support of the ruling of the district court. Whart. Crim. Law. 661. 1 Story, 218. 1 Sumner, 482.

The counsel contends, that facts stated by the judge assimilates the case to the facts proved on Selfridge’s trial, and that we have approved the principles of law laid down in that case, and therefore infers that the result should be the same. We have approved those principles, but doubted their application to that case, and think they have no application to the case under consideration.

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

Application for a re-hearing refused