author: Spoffobd, J.

text:
    The State v. Guillermo Ballerio.
    Where a bill of exceptions, taken to the refusal of a judge to grant a continuance in a criminal case, shows that there were matters of fact known to the judge, which, though they do not appear, may have had an important bearing on the decision of the question of continuance, the Supreme Court will not interfere.
    The accidental omission of some names from the jury-list will not furnish a sufficient ground for challenging the array; to make a perfect list would be impracticable, and to construe the law so as to require it, would operate an indefinite suspension of the trial by jury.
    A party under indictment has not the right to move for attachments against absent persons, whose names are found on the jury-list, in order to bring into court a greater number of juror’s, when there are enough in attendance to complete the panel.
    It is good cause of challenge in capital cases that a juror has conscientious scruples against finding an unqualified verdict of fl guilty.”
    In determining the guilt or innocence of a parly indicted, the jury are the judges of the law as well as of the facts; but not in exactly the same sense. Under our statute, they are the exclusive judges of the facts; they are, subordinate^, judg 'S of the law, because the statute proceeds upon the assumption that they are not familiarly conversant with it, and therefore requires the presiding judge to “give them a knowledge of the law applicable to the case.” They have power to decide against the judge’s opinion of the law — nay, they have power to pervert or ignore the law itself by their decision, and no penalty awaits them. But, as they cannot trample on the law without spurning the obligation of their oaths, so they cannot in general overrule the authoritative exposition of the law given by the judge, without endangering the cause of justice, and forgetting the theory upon which its administration is based. That theory is, that the complicated duties of a criminal trial should be so parcelled out amongst various officers as to give to no one man or set of men unqualified and arbitrary control over the life and liberty of the citizen and the welfare of the State. After hearing the arguments of both sides, the judge, unbiasssd by interest or passion, is expected to declare'the law; the jury to apply it to the facts which they find. They may safely take the law from the judge, for, if he misstates it to the prejudice of the prisoner, the latter is not without remedy: his exceptions may be heard in another tribunal, after the excitement of the hour is past. But the error of the jury is subject to no such revision.
    The following charge to the jury was asked and refused :
    “In all criminal cases the jury are the judges of the law as well as the facts. The province of the judge is to explain the law, and they are bound to listen to and weigh such explanation with due care and attention, although not bound to admit it as conclusive of the law, shduld they differ in opinion from the judge.” By Merrick, 0. J., dissenting: I think the instructions should have been given the jury as prayed for.
    APPEAL from the Fifth District Court of New Orleans, Sohertson, J.

      Morse, Attorney General,for the State. G. & G. E. Smidt, for appellant.
   Spoffobd, J.

Guillermo Ballerio has appealed from a judgment of the First District Court of New Orleans, by which he was sentenced to seven years’ imprisonment in the Penitentiary, for the crime of manslaughter.

I. If we concede that there may be cases where this court has power to review the exercise of the discretion vested in the District Judges upon the subject of continuances in criminal cases, still the appellant has not presented a fit case for relief.

The bill of exceptions and the affidavit do not disclose the exercise of any diligence on the part of the prisoner. It is not shown that the absent witness was ever recog-nized to appear or even summoned, although be had been present on other occasions. But the bill of exceptions does show that there were ' matters of fact known to the District Judge, which do not fully appear before us, and into the truth or falsity of which we could not enquire, if they, did, but which may have had an important bearing upon the decision of the question of continuance. It is therefore unnecessary for us to express an opinion whether the doctrine in the case of The State v. Hunt, 4 An., 438, was laid down too broadly or not.

II. The second bill of exceptions is also untenable. It was taken to the opinion of the Judge overruling a challenge to the array. .It does not show affirmatively that the Sheriff failed to make out, in December, 1854, a list of all persons, in the parish of Orleans, subject to jury duty, and if it did, the accidental omission of some names would not furnish a sufficient ground for challenging the array. To make a perfect list would be impracticable, and to construe the law so as to require it, would operate an indefinite suspension of the trial by jury.

III. Wo have not been referred to any law authorizing a party under indictment, to move for attachments against absent persons whose names are found upon the jury list, in order to bring into court a greater number of jurors when there are enough in attendance to complete the panel.

In the absence of a legislative enactment upon the subject, we think this matter is left exclusively to the discretion of the District Judges, and with the exercise of that discretion, we will not interfere upon grounds like those suggested in the third bill of exceptions.

IY. The next bill of exception was taken to the ruling of the Judge, who held it to be good cause for challenge to a juror by the State, that he had conscientious scruples against finding an unqualified verdict of “ guilty” in capital cases. In the recent ease of The State v. Melvin, we expressed our unanimous concurrence in the correctness of a similar ruling, and we see no reason to change our opinion.

V. Lastly, the prisoner’s counsel excepted to the refusal of the Judge to give the jury the following instructions : “That in all criminal cases the jury are the judges of the law as well as the facts. The province of the Judge is to explain the law, and they are bound to listen to and weigh such explanation with due care and attention, although not bound to admit it as conclusive of the law-should they differ in opinion from the Judge.”

As the prisoner took no exception to any portion of the Judge’s charge, we are bound to presume that it embodied a correct exposition of the law applicable to the case. So the question is, whether, after a sound and strictly legal charge, the court so far erred in refusing to add the above instructions as to authorize us to set aside the verdict. We think not.

There is undoubtedly an admixture of truth in the instructions asked and refused. But they were so framed that, without further qualification, they would have been likely to leave an erroneous impression upoij the minds of jurors.

In determining the guilt or innocence of a party indicted, the jury aro the judges of the law as well as of the facts; but not in exactly the same sense. Under our statute, they are the exclusive judges of the facts; they are, subor-dinately, judges of the law, because the statute proceeds upon the assumption that they are not familiarly conversant with it, and therefore requires the presiding Judge to “give them a knowledge of the law applicable to the eftse.” They have power to decide against the Judge’s opinion of the law; nay, they have power to pervert or ignore the law itself by their decision, and no penalty awaits them. But, as they cannot trample on the law without spurning the obligation of their oaths, so they cannot in general overrule the authoritative exposition of the law given by the Judge without endangering- the cause of justice and forgetting the theory upon which its administration is based. That theory is, that the complicated duties of a criminal trial should be so parcelled out amongst various officers as to give to no one man or set of men unqualified and arbitrary control over the life and liberty of the citizens, and the welfare of the State.

After hearing the argument of both sides, the Judge, unbiassed by interest or passion, is expected to declare the law; the jury to apply it to the facts which they find. They may safely take the law from the Judge, for if he misstates it, to the prejudice of the prisoner, the latter is not without remedy; his exceptions may be heard in another tribunal, after the excitement of the hour is past. But the error of the jury is subject to no such revision.

The reason why we set aside verdicts for an erroneous charge of the Judge is, that the law presumes the charge to have exercised a controlling influence upon the minds of jurors.

It is ordered that the judgment appealed from be affirmed, with costs.

Mekrtck, C. J., dissenting. I think the instructions should have been given the jury, as prayed for. It is in accordance with the common law, as I think it has been understood in this State, and also in harmony with the practice in civil cases. C. P., 520; 12 R. R., 165.

Experienced counsel are often unwilling to prejudice their cause in the minds of the jury by a seeming admission that the charge of the Judge is against the accused, even where they think he is in some respects in error. I think, therefore, the accused is entitled to the instructions asked, without excepting to the charge in other particulars, and that the case ought to be remanded for a new trial.


source: Caselaw Access Project

author: Vooehies, J.

license: Public Domain

text:
    Succession of Joseph Jewell.
    Where the purchaser of land failed to give his notes according to the terms of sale, he cannot set up the prescription of five years.
    A debtor said he would “ settle provided his claims were allowed.” Held: insufficient to interrupt prescription.
    APPEAL ' from the District Court, Ninth District, Parish of Pointe Coupee, ' Gooley, J.

      W. E. Gooley, for appellant. JProvosty, for appellee.
   Vooehies, J.

The opponent is appellant from a judgment rejecting her claim against the succession of the late Joseph Jewell.

The appellee has filed a motion to dismiss the appeal on grounds which we consider untenable. The addition of the word “administratrix” to the appellant’s name by the Clerk may be treated as mere surplusage. Her motion for the appeal, and the bond executed by her, sufficiently indicate the capacity in which she has taken this appeal.

The facts disclosed by the record are in substance these: At a judicial sale of the estate of the late William B. Faulkner, of which the appellant, his widow, was the administratrix, made on the 1st of July, 1848, a tract of land was adjudicated to Joseph Jewell for tho price of 8768, payable, according to the terms of sale, at one, two and three years from the date thereof; the purchaser to give his notes, with good security, and to bear ten per cent, interest from maturity until paid.

Jewell signed the proces verbal of adjudication, but did not comply with the terms of sale by giving his notes. No steps appear to have been taken by the appellant, during her administration, to compel him either to do so, or to pay the price of adjudication. In the final settlement of the estate of her deceased husband, she was charged with the amount of this adjudication, which she now claims as a subrogee of his estate.

The appellee relies on the prescription of five and ten years as a bar to the action.

The purchaser having failed to comply with the terms of his contract, by giving his promissory notes, we are of opinion that the only prescription applicable is the prescription of ten years. See the case of Burton v. Chancy, 8 An., 338. Tho Widow Faulkner filed her opposition to the tableau in September, 18B5. It is, therefore, clear that the third instalment of the price of the adjudication cannot be extinguished by prescription. But in regard to tho others it is different, unless an interruption has taken place, as contended for by the appellant.

According to the ruling of this court in the case of Lackey v. Macmurdo, 9 An., 16, we think the acknowledgment of Joseph Jewell, during his lifetime, as shown by the testimony, is insufficient to bind his estate. The substance of that acknowledgment appears to be, that he would “settle, provided his claims were allowed.” What those claims were, it is true, does not appear. But it is evident that his acknowledgment, qualified as it is, amounts at most to this, that he was willing to settle the price of adjudication on condition that his claims against the estate of Faulkner, would be allowed in compensation; in other words, he did not acknowledge his indebtedness to the appellant for the amount of her claims.

It is, therefore, ordered and decreed, the judgment of the court below be avoided and reversed, that the plea of prescription be maintained as to the first two instalments of the price of the adjudication, and overruled in the last in-stalment of the price, viz: the sum of $266, with ten per cent, interest from the 1st July, 1846, and that the case be remanded for further proceeding to be had herein according to law.


author: Lea, J.

text:
    Martha Webb v. William Deeson.
    A written admission made by plaintiff, that a certain slave Is the property of 3?, D., and that « he can d0 as 11(2 Pleases with her,” estops her from claiming the slave from one to whom F. D. had made title.
    APPEAL from the District Court, Tenth District, Parish of Carrol, Farrar, J.
    Dubose, for plaintiff and appellant. Caldwell, for defendant.
   Lea, J.

The plaintiff claims from the defendant a female slave, of whom she alleges that she is tho owner and proprietor, and also claims damages for her detention. The defendant sets up title under an act of sale from one Fen-ton H. Davis, the son of the petitioner, who, as defendant alleges, is estopped from questioning the title made by Davis, by her written recognition thereof made expressly for the purpose of enabling Davis to give a satisfactory title to a purchaser. The written admission referred to in the defendant’s anssrer, signed by the plaintiff, expressly recognizes that the woman Clarissa is the property of Fenton Davis, and that “ he can do as he pleases with her.” It is unnecessary to enquire whether in point of fact the slave Clarissa really belonged to Davis or not, the plaintiff is estopped from questioning his title by her own act. “ Admissions which have been anted upon by others, are conclusive against the parties making them, in all cases between them and the persons whose conduct they have thus influenced.” 1st Grcenleaf, on Evidence, § 207.

In such cases, considerations of good faith and public policy alike preclude parties from repudiating their own representations, and “ it makes no difference in the operation of this rule whether the thing admitted was true or false, it being the fact that it has been acted upon that renders it conclusive.” 1st Greenleaf, on Evidence, § 208. There was no error in the ruling of the court in admitting the testimony referred to in the bills of exceptions taken by plaintiff’s counsel.

Judgment affirmed.


text:
    Succession of Cleopas Landry.
    It is impossible to lay down any definite rules limiting the discretion of a court in ordering or maintaining such steps as may be necessary for the protection of the persons, or property of minors. Cases may arise for which the law has made no specific provision, and in such cases, it is the duty of the .court, in its discretion, to order such steps as may afford effectual protection; but for all the ordinary purposes of administration, the interests of minors are placed under the control of tutors and under-tutors, acting under the supervision of the court.
    A mere informality in the organization of a family meeting, does not invotve a nullity of its proceedings, and they will not be set aside in the absence of proof of injury to the minors.
    Where a family meeting assented to the second marriage of the tutrix, on condition of her giving bond to secure the minors, it will be time enough to consider the effect of this condition after the second marriage is contracted.
    PPEAL from the District Court, Fifth District, Parish of Assumption, Cole, J.

      Maurin & Gentile, for appellants. Mailhot & Mills, for appel-lees.
   Lea, J.

It is not absolutely certain, from the manner in which the various matters displayed in the record have been referred to in the briefs of counsel, whether the appellants considered that one or both of the judgments which we find in thp record were appealed from. As the under-tutor, however, has not been made a party to the appeal, and as but one judgment has been appealed from, we shall consider the appeal as applicable to the judgment dismissing the opposition of the appellants to the homologation of the proceedings of the family meeting held to deliberate upon the propriety of allowing 'the natural tutrix of the minors Landry to retain the tutorship notwithstanding her contemplated marriage. Various matters are set forth in the opposition, having relation to the organization of the family meéling, and to the order of the Olerk thereon ; to which opposition the tutrix filed a peremptory exception, that the opponents are without interest to enquire into the validity of the proceedings, or otherwise to disturb them. It is impossible to lay down any definite rules limiting the discretion of a court in ordering or maintaining such steps as may be necessary to the protection of the persons or property of minors. Cases may arise for which the law has made no specific provision, and in such case it is the duty of the court, in its discretion, to order such steps as may afford effectual protection; but for all the ordinary purposes of administration, the interests of minors are placed under the control of tutors and under-tutors, acting under the supervision of the court.

In the case at bar, no sufficient cause is set forth to justify the extraordinary interference of the relatives of the minors. A mere informality in the organization of a family meeting, does not involve a nullity of its proceedings, and though proceedings may be instituted for their annulment upon sufficient cause, they will not be entertained in the absence of any proof of injury to the minors. The rule governing such cases is laid down with clearness and precision in Marcadé, 2d vol., p. 207, sec. 4.

“ La Ioi ne pronongant nullilé ni pour l’inobservation de l’ensemble des régles ci-dessus tracées, ni pour aucune d’elles en partieulier (ce qui donnerait un point de eomparaison pour los autres); il s’ensuit que Ies tribunaux no seront jamais forces d’admettre cette nullité; mais, d’un autre cóté, le législateur n’ayant certainement pas eu la pensée de laisser ces régles sans sanction aucu-ne, il s’ensuit que les tribunaux auront toujours la faculté d’annuller en se dé-cidant par les circonstances. lis devront le faire, lo. quand la violation por-tera sur une régle tellemenfc grave, qu’il seraifc vrai de dire qu’il n’y a point de conseil de famille; 2o. quand la violation, quelle qu’ello soit en elle-méme, aura causé un grave préjudico au mineur.”

The District Judge did riot consider that a case was presented which" justified him in sanctioning the interference of the relatives of the minors, in the proceedings had with reference to their interests, and we are not prepared to say that he erred.

The homologation of the proceedings of the family meeting carries with ifc, at most nothing more than an obligation of the tutrix to furnish bond “ pursuant thereto,” in case she enters into a second marriage ; or at least it is a condition annexed to the consent of the family meeting without which it probably would not have been given. Should the tutrix therefore marry without giving bond, ifc will be proper to consider the effect of the condition annexed to their assent, but not till then.

See Smith, under-tutor, v. Dickerson, 2d An., 401.

Judgment affirmed.


author: Spoitord, J. Meeeick, 0. J.,

text:
    Martial Dodeman et al. v. R. R. Barrow.
    The laws requiring transfers of immovables to be in writing, would be vain and illusory, if the tiling * sold were not required to be described in writing. In forced sales, especially, it is necessavy for the description to be such as to warn the public what is intended to be sold; that the purchaser may be able to identify the object of his purchase, and that the property of the original owner may not be sacrificed by a sale in the dark.
    The adjudication by the State Treasurer of tc six arpeuts, more or less, in the parish of Assumption,” unaccompanied by a delivery of possession, did not convey a legal title to the specific land claimed in this action.
    The monition law cannot cure such a substantial defect as this.
    The only indicia, of taking possession by defendant — to make a basis for prescription — before 1844, were that in 1840, be sent hands to aid in stopping a crevasse in front of the tract in question, and that the next year, some of his negroes worked on a road and levee running over a part of it. By the court: It would be contrary to the text and meaning of the Code to decl are these in • dicia sufficient to establish such an unequivocal corporal possession — a/tvkno dorrvim — as is required to mark the commencement of the prescription of ten years. Defendant had other lands in the-vicinage. He had an obvious interest in stopping the crevasse and assisting to keep the road and levee in repair, and his doing so did not clearly indicate an intention to take possession of this piece of land as owner.
    The land in dispute was abandoned by plaintiffs in 182T or 1828. It is not shown that they exercised any act of ownership over the land from that period until the institution of this suit, — a period of twenty-two or three years, — and under Article 846T C. C., it would seem that the plaintiffs have lost their civil possession, because they did not pay taxes, keep up the roads and levees, or do other similar acts. (Merrick, 0. J., dissenting.)
    "While on the one hand, the positive acts of defendant show possession before 1844, much can be inferred, on the other, from the passive conduct of plaintiffs, which seems to have amounted to an intention of ridding themselves of the burden of taxes and keeping up levees, by abandoning the property to the purchaser at the tax sale and his vendees. (Merrick, C. J., dissenting.)
    Three-fourths of the territory of the State, consisting of forests, prairies, swamps and wood lands, for the present at least, admit of scarcely any other possession than that shown by the defendant in this case. To require this sort of real estate to be enclosed, in order to prescribe, would be the virtual abrogation of the provisions of the Code as to a large part of the wealth of the State.— (Merrick, C. J., dissenting.)
    Code, 8458, 8466, 846T, 3389, 3399, 8400.
    APPEAL from the District Court, Fifth District, Parish of Assumption Cole, J.

      Borford & Gentile, for plaintiffs. Illsley, for defendant and appellant.
   Spoitord, J.

(Merrick, C. J., dissenting.) This cause has formerly been before this court, upon a peremptory plea of res judicata interposed by the defendant and sustained by the District Court. We reversed the judgment, overruled the plea, and remanded the cause for a trial upon the merits. See 10th An., p. 193.

There has been a judgment against the defendant, and he, in his turn, has appea.led.

The' action is petitory ; its object is to recover a certain tract of land containing 240 arpents on the bayou Lafourche, in the parish of Assumption.

The defendant holds (through mesne conveyances) under a tax sale made by the State Treasurer in 1828, for taxes alleged to have been due by the plaintiff Dodeman. The land was described in the adjudication merely as “a certain tract or parcel of land situated in the parish of Assumption, measuring six ar-pents, more or less.”

In forced alienations of real property, it is essential that there should be a reasonably certain description of the property seized and sold. The laws requiring transfers of immovables to be in writing, would be vain and illusory if the thing sold were not required to be described in writing. In forced sales, especially, it is necessary for the description to be such as to warn the public what is intended to be sold; that the purchaser may be able to identify the object of his purchase, and that the property of the original owner may not be sacrificed by a sale in the dark. Wilson v. Marshall, 10th An., p. 327.

Wo are of the opinion that the State Treasurer’s adjudication to Mooney (under whom the defendant claims) of “six arpents, more or less, in the parish of Assumption,” unaccompanied as it was by a delivery of possession, did not convey to Mooney a legal title to the specific 240 arpents claimed in this action.

And we'have heretofore decided that the monition law was not intended to cure such a substantial defect in the sale as this.

As the only title set up by the defendant is traced from Dodeman through the tax sale to Mooney, Dodeman must recover unless his title has been lawfully divested, or unless the defendant’s plea of the prescription of ten years is valid.

Upon the former point we have said enough. The latter requires a brief notice.

It does not appear that Mooney, who, it is pretended, bought this land at the tax sale aforesaid, ever went into possession of it.

In 1838, Mooney sold the tract now sued for to one High, reciting the sale for Dodeman's taxes as the origin of his own title. But it is not shown that High ever took possession.

About a month after his purchase, High sold the tract to the defendant Barrow ; but having no possession, either actual or civil, himself,’ he could transfer none to his vendee.

Barrow then was bound to prove a corporeal possession in himself as the starting point of his title by prescription.

The incidents of the possession under title, which will enable one to acquire an immovable by the prescription of ten years, are explicitly laid down in Article 3453 of the Louisiana Code; it must be a possession in fact and right as owner; it must be continuous and uninterrupted, peaceable, 'public and unequivocal. The incidents of possession to support the prescription of thirty years without title, are the same : the possession on which this long prescription is based, “ ought to have the other qualities which are necessary to the prescription of ten and twenty years, i. e. it must be continuous and uninterrupted during all that time; it must be public and unequivocal and under the title of owner.” C. C., 3466. And it is only when it has been “ commenced by the corporeal possession of the thing,” that the possession “ may be preserved by external and public signs announcing the possessor’s intention to preserve the possession of the thing, as the leeeping up of roads and levees, the payment of taxes, and other similar acts.” C. C., 3467.

The only indicia of a taking of possession by Barrow previous to 1844, which we find to be satisfactorily established by the evidence, are the two facts that in 1840 he sent hands to aid in stopping a crevasse in front of the tract in question, and that the next year, some of his negroes worked on a road and levee running over a part of it.

¥e think it would be contrary to the text and meaning of the Code, to declare these indicia sufficient to establish such an unequivocal -corporeal posses. sion, ánimo ctomini, as is required to mark the commencement of the prescription of ten years.

The defendant had other lands in the vicinage. He had then an obvious interest in stopping the crevasse and assisting to keep the road and levee in repair, and his doing so did not clearly indicate an intention to take possession of this piece of land as owner.

In 1844 or 1845, he did take unequivocal possession. The witnesses, without dissent, speak of that as the marked epoch when he began to use and cultivate the land. But prior to that time, we do not find that ho cut a tree or dug a ditch, or built any kind of structure, or planted upon this land, although from one fourth to one third of it had been cleared many years anterior to his purchase.

The plea of prescription does not appear to us to be tenable, as citation was served upon the defendant in August, 1851.

We find no sufficient evidence to prove that Barrow was in bad faith whilst reaping fruits and making improvements, before this suit was instituted, and he has a legal presumption in his favor.

Upon the subject of rent and improvements, there is the usual discrepancy in the evidence.

The District Judge, who saw and knew the witnesses, had a better opportunity to graduate the amounts which should be allowed to either party, and although both complain of his estimates, we are not prepared to say that they were erroneous or unjust.

The judgment is therefore affirmed, with costs.

Meeeick, 0. J.,

dissenting. I have not been able to concur in the view taken of this cause by the majority of the court.

The principal defence to the action, is the plea of prescription of ten 3rears.

The Judge of the lower court was of the opinion that the defendant was a possessor of the land in question in good faith, but that the proof did not show a possession extending back a sufficient period to enable him to prescribe against the plaintiff's title. The tract of land seems to have been cultivated many years ago, and being covered with coco, was abandoned by the plaintiffs about the year 1827 or 1828. It is not shown that they exercised any act of ownership over the land, from that period until the institution of the suit, a period of twenty-two or twenty-three years, and under Article 3467 0. C., it would seem that the plaintiffs have lost their civil possession because they did not pay taxes, keep up the roads and levees, or do other similar acts.

The Judge of the lower court seems to have believed the witnesses who testified as to defendant’s acts of ownership, but he did not think they proved enough to establish the plea of prescription.

It appears that the defendant Barrow caused his title to be recorded.

He published a monition in the parish where a part of the plaintiffs reside, describing the tract of land in controversy, and obtained a judgment homolo-gating the tax title.

R. 0. Davis, a witness, says: “ At Barrow's request, I worked on the road with the slaves of Barrow, in the early part of 1838, and afterwards repaired the roads and levees and ditches on the land. Barrow had then and still has the actual and exclusive possession of said land as owner and proprietor thereof. I had for many years, and since 1838, brought a number of negroes every year, working on the land, repairing the roads, levees, etc., cutting ditches on tlie whole front of the land, and also towards the rear, I cannot say how far back. The land was certainly in possession of B. B. Barrow in the spring of 1838. I heard him say he purchased it on or about May, and it is now in his possession and has been since he purchased it, in 1838.”

A. V. Rogers says: “In the early part of the year 1838, I met with said Barrow on the land, working the road with negroes, and ditching.”

In another place, he says : “I saw Barrow working on the land, that is on the road, with his negroes, in the early part of the year 1838.”

Dr. T. A. Dozier testifies that he resided with B. B. Barrow prior to 26th of November, 1838 ; that some time previous to this date, “ whilst riding along the bayou, he saw ten or fifteen negroes working with different implements, such as hoes, spades and axes, as it appears to him, but does not recollect exactly ; working in different directions on the plantation and on the road.” He ascertained at the time that the negroes belonged to -Barrow ; thinks there wore one or two white men there; he stopped a few minutes and talked with them. After this, he saw them again at work there.

Harrison Benton says, that in 1838 or 1839, he saw 12 or 15 negroes of Barrow working on the ditches and road in front of the land.

It is also established by abundant testimony, that in May or June, 1840, there was a crevasse upon this land. That to prevent it, Barrow had sent for some negroes owned by him in partnership with another; that he employed and paid the white laborers upon the crevasse, and that the overseer and slaves remained in an old store-house (magasin) whilst they wgre there at work. The proof shows that Barrow continued to keep up the roads and levees, and that in 1844 or 1845, he enclosed the land and cultivated it as a part of his sugar plantation.

If this testimony is to be believed, and it is opposed by negative testimony onljr, I think that the plea of prescription is sustained by it. As already observed, not the slightest act of ownership had been exercised over the place by Dodeman or his children, after its sale for taxes.

Barrow gave notice to all the world, in 1838, by his monition published in French and English, that he claimed the land, and it was adjudged to him by the court; hence his acts had unusual publicity.

The testimony shows that the land was probably of no value for cultivation to the plaintiffs. One of the witnesses says it was nothing but a “ coco patch.”

I think, therefore, the acts of Barrow were all that were needed to vest the possession in him. He had paid a full price for the land. He had done every act indicating ownership which the nature of the land admitted. It was probably useless for all purposes of cultivation, except for sugar, and it did not become valuable for that purpose until he bought the adjoining lands which then gave sufficient size for a plantation.

The Civil Code defines possession to bo the detention or enjoyment of a thing which we hold or exercise by ourselves or another who keeps or exercises it in our name. C. C., 3389.

Detention consists in keeping a thing under our power. 1 Zacharie, section No. 184.

To be able to acquire possession of property, two distinct things are required:

1st. The intention of possessing as owner;

2d. The corporeal possession of the thing. C. C., 3399.

The Civil Code gives examples of this corporeal possession in Article 3391, but it leaves it to the discretion of the court to judge what act constitutes possession. It is express!}'' provided by the Code that “ It is not necessary however that a person wishing to take possession of an estate, should pass over every part of it. It is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included in the boundaries. O. 0., 8400.

That able jurist, Judge Bullard, in the case Lecomte v. Smart, 19 L. R., 489, says: “If the defendant had taken possession of the land under an apparent title, we should regard slight acts as evidence of an intention to take possession; but when a man, without ¡my pretence of title, goes upon land which he is informed is claimed by another, he must show unequivocal and continued acts of possession for more than a year, to maintain the plea of prescription.” While the positive acts of the defendant are shown on the one hand, much can be inferred on the other, from the passive conduct of the plaintiffs, which seems to amount to an intention to rid themselves of the burden of taxes and keeping up levees, abandoning the property to Mooney and his vendees. Quem ad mo-dum nulla possessio, adquiri nisi animo et corpore potest: ita nulla amittitur, nisi in qua utrumique in contrarium actum est. ff. Lib. 41; T. I). L. 8 ; C. C., 3467.

Three fourths of the territory of the State, consisting of forests, prairies, swamps and woodlands, for the present at least, admit of scarcely any other possession than that shown by the defendant in this case. To require this sort of real estate to be enclosed, in order to prescribe, would be the virtual abrogation of the provisions of the Code on the subject of prescription as to a large part of the wealth of the State.

I think that prescription should protect the defendant against the claim of all of the plaintiffs, except perhaps the minor Angelique Dodeman.


author: VooRniES, J.

text:
    David Wise v. Martin Guthrie et al.
    In a sale it is essential that the price should be certain, that is to say, fixed and determined between the parties, either by themselves, or by the intervention of a third person; otherwise there exists no sale.
    C. 0., 2439.
    APPEAL from the District Court, Tenth District, Parish of Tensas, Snyder, J.

      Farrar, for plaintiff. Deeres and Stacy & Sparrow, for defendants and appellants.
   VooRniES, J.

The plaintiff claims to be the owner of twenty-four bales of cotton, seized under a writ of fieri facias, issued on a judgment in favor of the defendant against James N. Gole, as the property of the latter. He alleges that the cotton was sold and delivered to him, and was in the possession of his agent, George B. Snodgrass, when it was levied upon him.

The plaintiff pretends to derive his title from James Gole, the seized debtor. On the trial below, he introduced in evidence the following instrument, viz:

“We, the undersigned, promise and oblige ourselves to deliver over unto Darid Wise the present crop of cotton we are about to make, in consideration of all necessaries furnished and to be furnished, to carry on the business of the place, by said D. Wise. Joel Chandler,

“Waterproof, February 23d, 1853. Jas. N. Cole.”

Tho interest of Joel Chandler in the crop appears to have been set apart to him and conveyed to the plaintiff. The plaintiff next offered his account in evidence for various goods and merchandize sold and delivered to James If. Gole, the items of which, proved by the testimony of his clerk, amounted to the sum of $588 28, exclusive of $67 80, amount of note for balance due in 1852; and also introduced in evidence an order drawn by James N. Gole on him in favor of Reuben Ohadioick, dated the 10th of January, 1854, for the sum of $311 75, purporting to be for the price of three work-horses purchased of the latter.

The cotton, it is shown, was hauled to the gin-house of George R. Snodgrass, where it was ginned, baled and marked J. C., and where it was seized as the property of James IF. Gole. Dixon, the overseer of Snodgrass, testifies that he marked the cotton in dispute with the letters J. C. without any instructions from any person; that immediately on discovering it, Gole told him that it was wrong, as the cotton belonged to Mr. Wise. Chandler testifies that Gole sold the whole of the crop to Wise; that “ Gole was very much embarrassed, and could not have gotten supplies and other necessaries without making tho written agreement he did with Mr. Wise." James If. Gole, also examined as a witness by the plaintiff, testified that he had sold his crop of cotton to Mr. Wise early in 1853, on condition that Mr. Wise would afford him supplies for carrying on the crop, and take up certain debts for him. That tho cotton was taken by him to the gin of Mr. Snodgrass at the instance of Mr. Wise.

It is not shown whether the cotton was sold'to the plaintiff, as pretended, in a lump, by weight, or by the bale; neither is it shown what was the specific price stipulated to be paid by the plaintiff. In a sale, it is essential that the price should be certain, that is to say, fixed and determined between the parties, either by themselves or by the intervention of a third person, otherwise, in the words of the law, there exists no sale. C. C., 2439.

Tho defendant claims damages from the plaintiff and his sureties on the bond resulting from the injunction. We are of opinion that this is not a case in which damages should be allowed. See the case Borie v. Borie, 5 L. R., 89. But tho judgment injoined bearing interest, eight per cent, must be allowed, to be calculated from the date of the injunction to its dissolution. Barrow v. Bank of Louisiana, 2 Ann., 456.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed; and it is further decreed, that the injunction in this case be dissolved, and that the Sheriff proceed to make the sale of the property seized according to law; it is further adjudged and decreed, that the defendant, Guthrie, recover of plaintiff in injunction, and his sureties in solido, interest at the rate of eight per cent, per annum upon the amount of the judgment enjoined, to be calculated from the date of said injunction to the present date; it is further ordered, that the plaintiff and appellee pay costs in both courts.


author: Buchanan, J.

text:
    George Jackson v. Joseph Williams and John M. Williams.
    The delegation by which a debtor gives to the creditor another debtor, who obliges himself toward such creditor, does not operate a novation, unless the creditor has expressly declared that he in. tends to discharge his debtor who has made the delegation. Code, 21SS.
    Suit brought by the creditor against the delegated debtor is not evidence of intention to discharge the original debtor.

      Walton v. Beauregard, 1 Rob., 301, is of doubtful authority.
    APPEAL from the District Court, Fifth District, Parish of Lafourche, Cole, J.

      O. A. Johnson, for plaintiff. J. 0. & A. Beatty, for defendant and appellant.
   Buchanan, J.

The plaintiff furnished and put up for the defendants a sugar mill and steam engine, in the year 1845, for a price payable in several instal-ments, running from January, 1846, to January, 1848. This suit was brought in June, 1853, for a balance due of about two thousand dollars, with interest. The defendants plead that they had delegated one Holcombe to pay in their place the debt due plaintiff under their said contract; that Holcombe assumed and promised to pay for said engine, and the plaintiff agreed to accept him as his debtor in the stead and place of defendants; that Holcombe subsequently paid to plaintiff a large part of the price of said engine, and for the balance duo on the same, the said Holcombe gave, and plaintiff accepted in payment, certain mortgage notes of Alexander H.. Tyson, drawn in favor of Holcombe, and by him endorsed in blank. By means whereof, defendants plead, the debt has been novated, and defendants discharged from all liability to plaintiff.

All these allegations of the answer are proved, except that the plaintiff accepted Holcombe as his debtor in the place and stead of defendants, and received Tyson’s notes, endorsed by Holcombe, in payment of the balance due him on defendants’ contract. To prove these facts, the defendants have interrogated plaintiff, who answers that “J. H. TFiZZianti told him, in the spring of 1849, that it was agreed between the defendants and Holcombe that Holcombe was to pay plaintiff for the machinery. Plaintiff told Williams that he had never accepted Holcombe as paymaster; that he had never been asked to do so; that the contract was in the name of defendants, and plaintiff would hold them responsible for it.”

To another interrogatory, plaintiff answers: “ I received from J. 0. Holcombe, as collateral security for my claim on the machinery, two notes drawn by A. H. Tyson, payable to Holcombe, and due in March, 1849, and March, 1850, bearing interest from date. The two notes amounted to six or seven hundred dollars above my claim. J. 0. Holcombe proposed to give me those notes for my claim. I refused to take them. He then took them to New Orleans to get them discounted. Failing to do so, he then offered them to me as collateral security. I took them as such, and stated in my receipt that upon their being paid they would be good against my claim on the machinery. I also gave J. 0. Holcombe my obligation for the difference, payable when the last note of Tyson was paid to me.”

This evidence does not make out the novation alleged by defendants. The delegation by which a debtor gives to the creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation. C. C., 2188.

The case of Walton v. Beauregard,, 1 Rob., 301, relied on by defendants, is of doubtful authority. We do not regard the suing of the delegated debtor as an evidence of intention by the creditor to discharge the original debtor. The words of the law are that the intention must be expressly declared. At all events the two cases differ in some essential particulars.

Judgment affirmed, witli costs.


author: Merrick, C. J.

text:
    Police Jury of West Baton Rouge v. William G. Bozman.
    Action to recover cost of a side levee, which had become necessary in consequence of the removal back of the levee above by the parish of Pointe Ooupée. By the Court: It is to be presumed that the change in the levee would not have been made by the authorities of Pointe Ooupée unless the public safety had required it. It was the duty of the proprietor of the tract below, and of the parish of West Baton Rouge, to accommodate themselves to this change, as much so as if such change had been occasioned by a sudden caving of the banks of the river above.
    The discretion in regard to the plan and size of the levees is reposed by law and the regulations of the Police Jury in certain persons, who, in this respect, act in an official capacity. If, in the exercise of their functions, they should err in regard to the size of the work to be constructed, an application to the Police Jury should be made to correct the error. But, as a general rule, after the work is done, and the expense incurred, the Supreme Court will not interfere with the discretion of officers who appear to have acted in good faith.
    The reasons for the judgment rendered by the District Court were: “ This case having been regularly taken up according to assignment, and after the testimony adduced, and argument of counsel, it is ordered,” etc. By the Court: This, it is apparent, is as much a reason for rendering a judgment in favor of the defendant as plaintiff, and does not meet the requirements of the Constitution. Article 72, Constitution.

      k PPEAL from the District Court, Sixth District, Parish of West Baton Rouge, Robertson, J.

      Favrot, for plaintiff. Elmore & King, for defendant and appellant.
   Merrick, C. J.

This is an action to recover of the defendant the sum of $960 66, the cost of a side levee built by plaintiff upon the land of Stephen Van Winkle, of whom defendant is a vendee.

A careful examination of the testimony satisfies us that the District Judge had sufficient proof before him to infer a substantial compliance with the law in the notices, advertisement, estimation of the work and adjudication of the contract.

The levee in question is a side levee, on the lower side of Eausse Riviere, which had become necessary in consequence of the levee above having been removed back some distance'by the authorities of the parish of Pointe Ooupée.

It is contended in this court'that the defendant cannot be made responsible for the damage required by this act of the Police Jury of the parish of Pointe Ooupée. It is intimated that this last mentioned parish ought to bear this expense, and the thirty-seventh article of the police regulations of West Baton Rouge is cited in support of this position. It is to be presumed that the change in the levee would not have been made by the authorities of Pointe Ooupée unless the public safety had required it.

It was the duty of the proprietor of the tract below, and of the parish of West Baton Rouge, to accommodate themselves to the change, as much so as if such change had been occasioned by the sudden caving of the banks of the river above. This side levee, as it was made, was after all but to unite the front levees, and therefore subject to the same rules as to the charge of the person upon whom it must fall in the first instance. Revised Statutes, 1852, p. 463, sec. 21, p. 508, sec. 5 and 6.

Several witnesses were examined for defendant, who appear to reside in Pointe Coupee, who give it as their opinion that the levee was much larger and stronger, and therefore more expensive than was needed. The discretion in regard to the plan and size of the levees is reposed by law and the regulation of the Police Jury in certain persons who, in this respect act in an official capacity. If, in the exercise of those functions, they should err in regard to the size of the work to be constructed, an application should be made to the Police Jury to correct such error. But as a general rule, after the work is done and the expense is incurred, this court will not interfere with the discretion of officers, who appear to have acted in good faith.

It is further contended, that the judgment of the lower court must be reversed, because given without reasons. The reasons stated are: “This case having been regularly taken up according to assignment, and after the testimony adduced and argument of counsel,” it is ordered, etc.

This, it is apparent, is as much a reason for rendering a judgment in favor of the defendant as plaintiff, and does not meet the requirement of the Constitution. Art, 72 of Constitution.

For the reasons here given, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and proceeding to pronounce such judgment as should have been pronounced by the lower court for the reasons aforesaid, it is ordered, adjudged and decreed by the court, that the privilege of the Police Jury of the parish of West Baton Rouge, for the sum of nine hundred and sixty dollars and sixty-six cents, with legal interest thereon from the 11th day of December, 1852, until paid, upon the said tract of land of the said William 0-. Boeman, jr., in said parish of West Baton Rouge, measuring nine and one-half arpents front on the Mississippi river, by the depth thereto belonging, between parallel lines, bounded above by Fausse Riviere, and below by lands known as the Withersby tract, be recognized; and it is further ordered, that said tract of land be seized and sold to pay and satisfy said sum of money, and interest and costs of copies and costs of the lower court; and it is further ordered, that the plaintiff pay the costs of the appeal.


text:
    Rodney C. King v. Z. Preston and Wm. Hall.
    Where property insured by the vendor was sold, and the policy not assigned to the vendee, the latter cannot, after a loss, recover from the vendor the amount of insurance collected by him.
    A. cotton plantation was sold, subject to an unexpired lease. Before the lease expired, the cotton gin was burnt. Held: that the vendor was not liable for the deterioration in the value of the plantation caused by the fire, which was the result of the carelessness and negligence of the lessee. The lessee was not the mandatary of the vendor. He was a third person, who had rights which, neither the vendor nor vendee could disturb. Code, 2704.
    APPEAL from the District Court, Tenth District, Parish of Tensas, Snyder, J.

      Barrar, for plaintiff and appellant. Stacy & Sparrow, for defendant.
   Lea, J.

The litigation in this case is based upon the following state of facts: On the 27th day of October, 1851, the plaintiff entered into a written agreement with the defendants to purchase for them “a tract of land known as the Isthmus Plantation,” for which he was to give them certain endorsed notes upon the execution of a good and valid title by the vendors, who were also to assign to the purchaser, as it is expressed in the Act, “ the article of lease to B. W. MeBae, which expired on the 1st of January, 1852.”

On the 11th November a formal act of sale was passed before a notary, in pursuance of the foregoing agreement, by which the defendants conveyed the tract in question to the plaintiff; no mention was made in the act of the assignment of the lease, but, taking the two documents together, (and this view is fully borne out by the evidence) we consider that it was understood to be a sale of a plantation subject to a lease, the termination of which was well known to both parties.

On the 4th of November, 1851, the defendants effected an .insurance upon the gin and on the plantation for the sum of $5000. At the time of the sale this policy was not transferred to the purchasers, nor was there any agreement to transfer it. On the 80th December the cotton-gin on the place was destroyed by Are. The defendants claimed the insurance money, and after some difficulty with the company, they effected a compromise, in pursuance of which they were paid the sum of $3440.

The plaintiff in this suit rests his claim upon two apparently distinct causes of action. First, he alleges that as the purchaser of the property Insured, he was entitled to receive the insurance money which the defendants received and converted to their own use, and secondly, that in consequence of the defendants’ failure and refusal to deliver the premises to him, which, as vendors, they were bound to do, they became liable for the deterioration in the value of the plantation caused by the burning of the gin house, which was owing to the carelessness and negligence of the lessee.

We will consider first the nature and extent of the liability of the defendants incident to receipt of the insurance money. There was no contract for an assignment of the policy, nor did a sale of the property operate as an assignment. “The contract of insurance is strictly personal, it is not an incident to the subject insured. It is an obligation to make good to the party really insured any loss that he may sustain from the perils insured against, according to the nature and terms of the insurance, not an obligation to make good any damage that, from the same causes, the property insured may sustain withoiit regard to its ownership.” See 2d Duer on Insurance, page 53; also 1st Phillips on Insurance, § 86, 87.

It is needless, therefore, to determine whether the defendants were or were not entitled to recover from the insurance company. Unless the defendants received money which the plaintiff was entitled to recover, the latter has no ground of complaint.. It matters not how much money the defendants may have received improperly from the insurers, the plaintiff could not be injured by such payment. We must consider the case, therefore, precisely as if no insurance whatever had been effected. The relation of the plaintiff towards the defendants was that of a purchaser of property subject to an unexpired lease, of which he had full cognizance, and to which he assented. The plaintiff bad received such possession as was contemplated-by the parties.

It is true no written.transfer of the lease was made, but had such been necessary, it does not appear that the defendants were called upon to execute an assignment. It is urged in argument, however, that the plaintiff had the right to disregard the lease, and to demand delivery and possession according to the terms of the act of sale. Assuming even this view of the case to he correct, it does not appear that the defendants were called upon to make such delivery. But this is not the true view of the case; the lessee was not the mandatary of the defendants. He was a third person who had rights, which neither the vendor nor vendee couTd disturb. C. C., 2704.

Under the circumstances, we think that such delivery was made as was in contemplation of the parties. Considering the nature of the contract, with the full knowledge of the lease on the part of the purchaser, it cannot be said that there was any delay in the fulfilment of the contract on the part, of the vendors, or that the property sold sustained any injury through gross neglect on their part.

We think there is no error in the judgment appealed from.

Judgment affirmed.


text:
    Richard Peters v. Tobias Gibson.
    Article 851 of the Code of Practice was intended to compel the oral answer of the party in the presence of the court and opposite party, and to compel him to answer from his recollection and knowledge of the facts in his own words, and in such language as occurs to him when thus interrogated. He cannot be permitted to prepare his answers beforehand and read them in court.
    A party interrogated may refer to’ memoranda to assist his recollection, as- other witnesses may.
    APPEAL from the District Court, Fifth District, Parish of Terrebonne, Oole, J.

      J. 0. & A. Beatty, for plaintiff. Goode, for defendant and appellant.
   Merrick, C. J.

A careful examination of the record and testimony in this case.has brought us to the conclusion that the cause must be remanded for a new trial.

In the lower court, while the case was on trial before the jury, the defendant, in order to establish certain of the credits claimed by him, propounded interrogatories to be answered by the plaintiff. The interrogatories were propounded j ust as the court was adjourning for dinner. When the plaintiff came to answer the interrogatories in the afternoon, instead of giving the answer to each question, as read to him by the Clerk, viva voce, he handed to the Clerk a slip of paper in the handwriting of his attorney, and signed by himself, which the Clerk recorded and read to the jury as his answer, the-party interrogated not uttering a word. The defendant objected to each answer, and insisted that the party should answer orally, but the court overruled the objection, and defendant excepted.

The defendant insists in this court that the interrogatories shall be taken as confessed, or that the case be remanded to the lower court for a new trial.

Article 851 of the Code of Practice gives the party propounding the interrogatories the right to require the opposite party to answer in open court, and in his presence, on a day to be fixed by the Judge, provided the party interrogated resides in the parish where the court is held.

The right to interrogate a witness in the presence of the parties, the jury and the court, has been doomed of great importance, and guarded with jealous care; so much so that it is guaranteed to the accused in criminal cases by the Constitution.

We doubt not the Article of the Code of Practice cited was intended to compel the oral answer of the party in the presence of the court and opposite party, and to compel him to answer from his recollection and knowledge of the facts in his own words, and such language as occurs to him when thus interrogated. If it is legal to prepare his answers beforehand, and deliver them to the Clerk, or even read them himself, no useful purpose is attained by bringing the party into court. His answers might as well be prepared and sworn to in the presence of a Justice of the Peace.

We think the party interrogated in open court, in regard to the testimony he is about to give, is so far a witness upon the stand; and that the party interrogating has a right to a reply to each interrogatory in the words of the witness. The party interrogated may refer to memoranda to assist his recollection only in such cases as are allowed to witnesses examined orally upon the stand.

The court having sustained the party interrogated in the manner in which he proposed to answer, the penalty for neglecting to answer cannot be invoked against him, and the cause must be remanded to give the plaintiff an opportunity to make legal answers to the interrogatories on facts and articles before they can be taken as confessed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and the cause be remanded for a new trial, with directions to the plaintiff to answer orally in open court, and the presence of the opposite party, the interrogatories propounded to him, otherwise to take the same as confessed. And it is further ordered, that the plaintiff pay the costs of this appeal.


text:
    Mrs. Ira Smith, Testamentary Executrix, v. John Buhler.
    A right of way for a railroad was granted by the owner of land on the Mississippi to a proprietor in the rear, and an acre of ground leased for a depot, etc. Subsequently, by order of the proper parochial authorities, a new levee was constructed, and the greater portion of the land for the depot was thrown outside of the levee, and consequently the public road, and so rendered useless for the purposes for which it was leased. Suit was brought to compel a surrender of an additional piece of land, to be used for a depot in lieu of that rendered useless. By the Court: The contract in question is not so much a lease as the creation of a servitude, or right of way from plaintiff’s plantation to the river’s bank for a term of years — a predial servitude in favor of plaintiff’s estate, and due by defendant’s estate. This right of way is of a particular character — a railroad, an indispensable part of which is a depot at the landing. The dimensions of the depot are precisely defined by the contract, and the lessee has the right to a depot of that size to the expiration of the term, fronting on the public road, and running back from that road for quantity.
    The caving of the bank of the river, and hence the necessity for a new levee, etc., might have been foreseen (as shown by the evidence) and the parties must be supposed to have contracted with reference to such a contingency.
    C. C., 1950,1952.
    APPEAL from the District Court, Sixth District, Parish of West Baton Rouge, Robertson, J.

      Edwards & Barrow, for plaintiff. T. Q-. & P. 3. Morgan, for defendant and appellant.
   Buchanan, J.

The plaintiff’s testator and the defendant owned adjoining plantations: that of defendant fronting on the Mississippi river, and that of plaintiff’s testator in the rear of defendant’s. Under these circumstances, parties made a contract on the 10th May, 1850, of the following tenor: the

“Be it remembered, that on the day and date hereof, John Buhler, of State and parish aforesaid, has given and granted, and by these presents doth give and grant, unto Dr. Ira Smith, of the parish of West Feliciana, his heirs and assigns, a right of way for a railroad, to be made from the land of said Smith, in the rear of the plantation of said Buhler, to the Mississippi river. Said road to be made entirely on the land of said Buhler, and as near the line of Gonracl and Ghinn, elc. the

“And be it further remembered, that the said John Buhler has this day leased unto the said Smith, his heirs and assigns, for the term of twenty years, one superficial acre of land, fronting half an acre on the public road, and running back two acres in depth on the line of the railroad, on the terms and conditions following, viz: The said lot of ground shall not be used by said Smith, his heirs and assigns, for any other purpose than as a depot for the storage and sale of wood and lumber; that the said Smith, his heirs and assigns, shall establish thereon no nuisance to the detriment of said Buhler, his heirs and assigns, and that in consideration of said lease, the said Smith, his heirs and assigns, shall pay to John Buhler, his heirs and assigns, the sum of fifty dollars, annually, so long as said lot of ground shall be used for such purpose by said Smith. It is also understood, that said Buhler shall have the use of said lot of ground for the facilities of transportation, provided that said use shall not cause any inconvenience to said Smith!

The railroad was made, and the depot inclosed and used by the lessee, in accordance with this contract, until January, 1854, when the Inspector of Roads and Levees for that district of the parish of West Baton Rouge, assisted by three inhabitants and landholders, after a survey, as required ,by law, ordered a new levee to be made on defendant’s land, adjoining that of Gonrad and Ghinn, considerably inside of the levee existing in 1850, by means whereof the greater portion of the land leased, as aforesaid, to plaintiff’s testator for a depot was thrown outside of the levee, and consequently outside of the public road, which, according to law and usage, runs along the front of riparian estates on the Mississippi river, inside of and adjacent to the levee.

The object of the present action is to compel the defendant to set off to plaintiff, for a depot, an equal extent of ground to that originally set off under the lease, (and which has been curtailed by the making of the new levee,) by enclosing a portion of ground, one-half acre in width, on the line of the railroad to the depth of two acres from the new road, and fronting upon the same. The defendant pleads, in substance, that he leased to plaintiff’s testator a specific portion of ground, and is not bound to make good any deficiency that may have been subsequently caused in the quantity of the same by the caving in of the river bank in front.

To this it is replied in argument, and we think correctly, that the contract in question is not so much a lease as the creation of a servitude, or right of way from plaintiff’s plantation to the river bank for a term of years — a predial servitude in favor of plaintiff’s estate, and due by defendant’s estate. This right of way is of a particular character — a railroad, an indispensable part of which is a depo.t at the landing.' The dimensions of the depot are precisely defined by the contract, and the lessee has the right to a depot of that size to the expiration of the term, fronting on the public road, and running back from that road for quantity. The change of the bank by caving in was a thing which might have been foreseen, according to the evidence, and the parties must he supposed to have contracted with reference to such a contingency. C. C., 1950, 1952.

We have not found any error to the prejudice of the appellant in the bills of exception to the evidence and to the charge of the court.

The defendant objects that he has not been put in default. But this point is immaterial, inasmuch as the jury have not awarded any damages, and the ap-pellee does not ask that the judgment be amended in this respect.

Judgment affirmed, with costs.

       Lea, J., tookivo putt ih this decision.


text:
    Margaret Bracy v. W. O. Buck.
    A title not registered may be the basis ot prescription.
    APPEAL from the District Court, Ninth District, Parish of Pointe Coupee, Gooley, J.
    Z7T B, & E. Phillips, for plaintiff and appellant. Parrar and W. Beatty, for defendant.
   Merrick, C. J.

This is a petitory action. The defence, which was sustained by the judgment of the lower court, is the prescription of five years, with possession in good faith and a title translative of property.

Plaintiff bases her hopes of reversal of the judgment on the ground that the note of evidence does not show that the certificate of the Parish Recorder, endorsed on the act of sale sous seing yrvoé, was offered in evidence with the act itself.

She contends that the act, without being registered in the office of a notary, cannot prejudice third persons even as the basis of prescription.

It is not necessary to consider whether the certificate formed a part of the act and was therefore under a reasonable intendment in evidence or not.

The case, under the authority of Hudnall v. Watt & Desaulles, is with the defendant without the certificate of the registry of the act.

Judgment affirmed.


author: Spoitord, J.

text:
    Hewitt, Heran & Co. v. Nolan Stewart’s Executor and D. P. Cain.
    A judicial mortgage results from &dona ficLa judgment, though rendered on the confession of defen-
    A judgment by confession is a u final judgment,” for no appeal lies from it. ■
    Code, 3289,8225; O.P.,5(J7.
    APPEAL from the District Court, Sixth District, Parish of West Baton Rouge, Robertson, J.

      Greves, for plaintiffs. R. <& E. Marr, for defendants and appellants.
   Spoitord, J.

Upon the allegation that they had a judicial mortgage against certain slaves now in the possession of D. P. Gain, (their judgment debtor,) but'claimed by Nolan Stewm't, who had purchased them at a Sheriff's sale under execution at the suit of the Clinton and Port Hudson Railroad Company against Cain, the plaintiffs brought this hypothecary action to enforce their judgment upon the slaves.

The defendant, Stewards executor, has appealed from a decree ordering these slaves to be sold to satisfy the plaintiffs’ judicial mortgage.

It is urged in this court, although the point does not seem to have been made below, that the plaintiffs have no mortgage, because the judgment from which it is supposed to spring, was not rendered in a contested case, or by default, but upon the confession of the defendant.

- The answers of both defendants, filed in the inferior court, would seem to admit the existence of the plaintiffs’ mortgage, for, without denying it, they aver the existence of a superior mortgage in favor of the minor children of Cain.

And we are of opinion that a judicial mortgage results from a Iona fide judgment, though rendered upon the confession of the defendant.

The construction of Article 3289, upon which the opposite theory is based, would be too narrow and literal. “ The judicial mortgage is that resulting from judgments, whether these be rendered on contested eases, or by default, whether they be final or provisional, in favor of the person obtaining them.” Perhaps it would have been better to stop where the Code of 1808 did, in book III, tit. XIX, ch. I, art. 8, p. 452: “The judicial mortgage is that which proceeds from every judgment.” But those who suggested the amendments which resulted in the Code of 1825, did not intend to restrict the judicial mortgage to a particular class of judgments; their object seems to have been rather to call attention to the fact that the mortgage was not so restricted, but flowed alike from the various sorts of judgments. A judgment by confession is certainly a “ final” judgment, for no appeal lies from it; C. P., 567 ; it comes therefore within one of the categories which seem to have been named in Article 3289, rather as antithetical specimens of some of the opposite kinds of judgments from which a mortgage may result, than as exclusive of other classes not specially enumerated.

The Article 9 of the old Code, next succeeding the one just quoted, contained a similar antithesis: “ The judicial mortgage takes place from the day when the judgment, either on a hearing of the parties or by default, final or subject to an appeal, has been rendered in favor of him who obtained said judgment.”

But the framers of the Code of 1825, have given unmistakable proof that they intended mortgages to spring from confessed judgments procured at a time and in a manner not suspicious. Article 3225 declares that “ the inscription of a judgment, obtained against a debtor within ten days preceding his failure, shall have no effect against the other creditors of the debtor, if it appears, from the time at which the suit was commenced, and the manner in which it was conducted, that the debtor intended to favor the plaintiff, either by consenting that judgment should be rendered against him without the usual delays, or by not making a defence, or by confessing judgment when the cause admitted of contest.”

We see no reason, therefore, for introducing, at this late day, a novel interpretation of an Article of the Code, which, if adopted, would lead to so much confusion.

The only other point made by the appellant, is that the slaves in question were adjudicated to him at a sale made under the anterior mortgage in favor of the Clinton and Port Hudson Railroad Company ; that they were included in that mortgage, and that, consequently, he took them free from the subsequent judicial mortgage of the plaintiffs.

This matter is brought before us in disregard of rules of practice, which are important to the certainty of legal proceedings, and to the correct administration of justice. Neither of the defendants pleaded any such defence, but, on the contrary, their answer's appear to be inconsistent with it. Instead of objecting, however, to the point being opened in argument here, the counsel for the appellees has proceeded to answer it by a counter argument which raises the plea of res adjudicata.

Overlooking these irregularities, we are of opinion that the defence, if it had been pleaded, would have been successfully met by the plea of the thing adjudged. In the suit of Rolan Stewart J. R. Allain et al., for the erasure of this with other mortgages, the present plaintiffs being cited by Stewart, answered specially that the identical slaves now sought to be sold, were not suhject to the mortgage of the Clinton and Port Hudson Railroad Company. Stewart met the plaintiffs upon that issue, and by the final decree of our predecessors, (8th An., 64,) it was decided against him.

He cannot be permitted to agitate the question anew under the pleadings and evidence contained in this record.

It is, therefore, ordered that the judgment appealed from be affirmed, with costs.


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    Police Jury of Lafourche v. Antoine Rossi et al.
    The penalty of a bond given by a purchaser of work to be done on the levee, road, &c., in the parish of Lafourche, cannot be recovered without the production of the proces verbal of adjudication, as required by law.
    In commutative contracts the party who seeks to put the other in default, must, on his part, perform all that which is incumbent on himself to perform.
    Code, 1907.
    APPEAL from the District Court, Fifth District, Parish of Lafourche. Cole, J

      Bush, for plaintiff and appellant. Belcher, for defendants.
   Buchanan, J.

This is a suit to enforce the penalty of a bond given by the purchaser of work to be done upon the levee, road, ditches and bridges, on a tract of land belonging to one Theophile Anfoux, In the parish of Lafourche Interior, at a sale made by the Inspector of the Second District of the said parish, for roads and levees.

The case comes up, principally, upon a.bill of exceptions to the charge of the District Judge who tried the cause. The Judge charged the jury that, previous to recovery on the bond, it is necessary to produce in evidence the proces verbal of adjudication required by law, of the work for which the bond was given as a penalty, in the event of the non-completion of the work, or to show the existence and loss of such proces verbal.

The Judge did not err. The law under which this bond was taken (Act of 7th February, 1829, sec. 20, B. and C. Dig. 753,) obliges the Inspector of Roads and Levees to make a proces verbal of the work to be done on the land of each delinquent proprietor, and to adjudicate, after certain advertisements, to the lowest bidder, the said work. The person to whom the work is adjudged has an action in rent for his compensation — which action is brought by petition — to which the proces verbal of adjudication must be annexed. See sec. 30th of the same Act, (B. and C. 756.)

In the present case, it is proved by the testimony of the Inspector himself that he never made a proces verbal of the works which were necessary to be made on the land of Theophile Anfoux.

It is therefore clear that the purchaser of said works at the Inspector’s sale would have had no recourse for his indemnification against the property, in case he had completed the work to the satisfaction of the Inspector. The parish authorities were bound to have afforded the party with whom they contracted all the guarantee for his repayment which a strict compliance with the law, on their own part, would offer. In commutative contracts, the party who seeks to put the other in default, must, on his part, perform all that which it was incumbent on himself to perform. Civil Code, Art. 1907.

There is, in fact, no proof, oral or written, before the court, of what work was included in the defendant Bossi’s adjudication; and although the Inspector swears, in general terms, that “ the works and repairs on the land of Mr. Thé-ophile Anfoux were not done and finished according to law,” yet it is proved that Bossi made a levee on that land, for which he has never been paid; and that the levee, such as it was, has answered the purpose of its construction, by keeping out the water. It may admit of some question whether Bossi in fact had not a good claim against the parish, instead of being liable to the parish for damages.

Judgment affirmed, with costs.


author: Seofford, J.

text:
    Paulin Blanque et al. v. Frame A. Woods.
    The endorsement of the payee must be considered a« proved when the note is offered in evidence, without objection, as the endorsement then constitutes a part of the instrument declared upon.
    APPEAL from the District Court, Sixth District, Bobertson, J.

      T. G. & P. TI. Morgan, for plaintiffs. J. M. & J. E. Elam, for defendant and appellant.
   Seofford, J.

This cause comes before us upon an assignment of errors by defendant.

The first error assigned is, that the plaintiffs neglected to prove the endorsement of the payee under whom they held the promissory note sued on.

By the answer, it does not appear that the genuineness of the endorsement was denied; there was no general denial, and only a special denial as to the account sued on. But if there had been an issue on the point, under the ruling of a majority of this court in the recent case of Maxwell & Co. v. Kennedy & Co., the signature of the endorser must be considered as proved; for the note was offered in evidence without objection on the part of the defendant’s counsel, and the endorsement then constituted a part of the instrument as declared upon.

Tlie next error assigned is, that there is no proof that the defendant occupied the Conti Street Veranda during the months of January, February and part of March, 1853.

There was no need of such proof: it mattered not whether the defendant occupied the premises or not, for by the acts offered in evidence he had expressly assumed to pay the rent as charged.

The last assignment of error is, that the plaintiffs are not alleged and shown to be heirs of Mrs. Delphine McCarty, wife of Louis Lalourie, and, as such, were represented by Thomas Bailey Blanchard & Co. These allegations were substantially involved in the allegations of the petition taken in connection with the documents annexed, and, not having been denied by the answer, must be considered as admitted.

Judgment affirmed, with costs.


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    C. J. Meeker & Co. v. O. Klemm.
    Liability for contribution to a general average rests upon the broad and equitable principio that no one shall enrich himself at another’s expense.
    The measure of each person’s contributory share to a general average should be regulated proportionally by the extent to which each of the contributing parties has been benefited by the sacrifice.
    A usage regulating the enforcement of an obligation which violates the principle on which the obligation itself is based* and without which it would not exist at all, cannot be maintained.
    The valuation of a ship or vessel in a policy of insurance, when disputed and discredited by evidence creating a reasonable probability of its incorrectness, cannot be assumed as an arbitrary basis in an apportionment for a general average contribution.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Benjamin, Bradford & Finney, for plaintiffs. Maybin, for defendant and appellant.
   Lea, J.

The sole question for solution in this case is, whether, in a contribution for a general average loss, the ship, for the purposes of contribution, is to be estimated at her actual value, as ascertained by appraisement, or at the valuation fixed in the policy of insurance. If we refer to the principle upon which a liability for contribution to a general average loss is based, we find that it rests upon the broad and equitable doctrine that no one shall enrich himself at another’s expense: “Where, by a sacrifice, deliberately made, of the property of one of the parties concerned in an adventure for the benefit of the other parties interested, whereby his loss is directly converted to their gain, it is but just that those ‘ whose property has been saved by the sacrifice should contribute to place the owner who has sustained the loss in the same condition in which ho would have been if, not his property, but that of another, had been sacrificed.’ ” See Stevens & Bennecke on'Insurance, page 227. And this doctrine carries with it another as its natural sequence — to wit, that the measure of each person’s contributory share should be regulated proportionally by the extent to which each of the contributing parties has been benefited by the sacrifice : “Q,ui sentitcom-modum debet sentiré et onus.” It is an obligation not based upon contract, but one resting upon natural equity.

It may be conceded, at least for the purposes of argument, that the witnesses have established a custom, general though not universal, in the adjustment of general averages in the maritime cities of this country, to adopt the valuation of the ship in the policy of insurance as the contributory value, instead of the actual or appraised value. Granting the existence of such a usage, how far is it binding upon those who do not choose to acquiesce in such a rule of apportionment ?

No doubt the valuation in the policy furnishes, as a general rule, a safe and convenient basis of apportionment, because it happens generally to be about the true value of the vessel to the owners, and for this reason the assumption of this basis has been generally acquiesced in. In the case at bar, however, it is shown conclusively that the valuation in the policy is far beyond the true value of the vessel. Now, a usage regulating the enforcement of an obligation which violates the principle upon which the obligation itself is based, and without which it would not exist at all, cannot be maintained. The valuation in the policy is binding only between the parties to the contract of insurance; and though, as Mr. Bennecke observes, “ when there is no reason to doubt its correctnessj it is frequently the best guide for determining the contributory interest.” Yet it by no means follows that it is an exclusive guide not open to contradiction. In the ease at bar there is not only reason to doubt its correctness, but it is clearly proved to be an incorrect valuation. Our researches have not enabled us to find a single case in which the valuation in the policy, when prosed to be incorrect, was arbitrarily substituted for the known and appraised value as the basis of contribution.

We have been referred to several decisions of the courts of New York and Pennsylvania, as establishing the lex marcaloria on the subject in the two leading commercial States of the Union.

We find nothing in these decisions to justify the confidence with which they have been quoted as supporting the doctrine contended for on the part of the defendant. In the case of Leavenworth v. Delafield, 1st Caines, 378, (he court expressly say that the contribution should be apportioned by a calculation based upon the actual value of the ship at the port of departure, less one-fifth for ordinary wear and tear, exclusive of outfits, without regard to the valuation in the policy.

In the case of Gray v. Waler, 2d Sargeant & Rawle, 229, cited as the case which presses with most force upon the point, the charge of the court to the jury, which was sustained by the Supreme Court, was, “ lhat the value of tho vessel was to be estimated according to what she was worth when she sailed from her port of departure, making a reasonable allowance for any deterioration she might have suffered by wear and tear up to the time when the loss took place.”

The statement of the case shows that an assessment of the value of the ship was made by the jury, upon data supplied by the evidence. In the ease at bar the vessel was appraised immediately after her return from the Brazos — she having experienced no disaster after the termination of the voyage on which the jettison occurred. Giving effect to the valuation in the policy as prima facie evidence, we think the appraisement made by competent experts, which stands uncontradicted, together with the remarkable difference between this appraisement and the valuation in the policy, sufficiently establish the incorrectness of the latter as a basis for a computation of general average contribution. We wish, however, to be understood as deciding only that a valuation of a ship or vessel jn n policy of insurance, when disputed and discredited by evidence creating a reasonable probability of its incorrectness, cannot be assumed as an arbitrary basis in an apportionment of general average contribution.

It is ordered that the judgment appealed from be affirmed.


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    Elvira McCalop v. Nolan Stewart et al.
    Testamentary disposition in the following words: “ I give to my great grandchildren — Kilty's children and Lucy's, if she has any — all the balance of my properly of all kinds ; but be it known and understood, that Elvira, my daughter, is to have the care and management of it during her life in this world, and her and Stewart is to take possession of it and carry it on, and have the proceeds, if there be any, but shall not be bound to give a bond or security for anything.
    If EVoira and Stewart should die before Kitty and Lmcaj, then the property to fall into their hands to be carried on in the same way, and the proceeds to go to them. The property is not to be sold, but to be kept together until the heirs come of age ; but as they come of age, they shall be'entitled to a share with their parents.”
    There is no prohibited substitution in such a disposition. The greatgrandchildren are the instituted heirs. They are certainly not charged with the return of the testat jr’s estate to any third person, nor to preserve it for any third person. The testator clearly expresses his intention that the property which he bequeathes io his great grandchildren should be kept together, and that there should be no partition of it until the heirs come of age. This disposition is expressly sanctioned by Article 1224 of the Civil Co.de.
    The dispositions in favor of the testator’s daughter and herbu«band, and in favor of his granddaughters, the mothers of the instituted heirs, are not substitutions, but are usufructs within the purview of Article 1509 of the Code.
    Code, 1482,1489,1507,1509,1224, 531, 534.
    A PPEAL from the District Court, Sixth District, Parish of West Baton Rouge, Robertson, J.

      J. M & E. Elam, for plaintiff. T G. Morgan, for defendant and appellant.
   Buchanan, J.

James McCalop died in I860, possessed of an estate inventoried at more than two hundred thousand dollars. At the time of his death, he had the following legitimate descendants :

1st. His daughter, the plaintiff, wife of Nolan Steioart;

2d. Two granddaughters, the daughters of plaintiff, named respectively Kitty, wife of Williams, and Lucy, wife of Dougherty ;

3d. Three great grandchildren, the children of Mrs. Williams;

4th. One great grandchild, the child of Mrs. Dougherty.

James McCalop made his will in the olographic form, which has been probated, and of which Nolan Stewart, one of the defendants, and husband of plaintiff, was qualified as executor.

The plaintiff brings this action to annul the will of her father, as being in prejudice of her rights as forced heir, and as containing fidei commissa and substitutions.

The will of McCalop commences by two particular legacies, which the plaintiff declares in her petition it is not her intention to disturb. It then proceeds as follows:

“ I give to my great grandchildren — Kitty's children and Lucy's, if she has any — all the balance of my property of all kinds; but be it known and understood, that Elvira, my daughter, is to have the care and management of the whole of it during her life in this world, and her and Stewart is to take possession of it and carry it on, and have the proceeds, if there be any, but shall not be bound to give a bond or security for anything.

“ If Elvira and Stewart should die before Kitty and Lucy, then the property to fall into their hands to be carried on in the same way and the proceeds to go to them. The property is not to be sold, but to be kept together until the heirs come of age; but as they come of age, they shall be entitled to a share with their parents.”

It is admitted in argument, by counsel of defendants, that the plaintiff has the right to have the dispositions of the will of her father, in favor of others than herself, reduced to the disposable portion. That portion, in this case, was two thirds of the property of the testator. Civil Code, Articles 1480, 1482. The testamentary dispositions must therefore be reduced to that amount. C. C., 1480.

But the plaintiff claims the nullity of the dispositions of the will in favor of her grandchildren, in toto, as containing a prohibited substitution.

We have not been able to perceive any such substitution in the will in question. The definition of a prohibited substitution, contained in Article 1507 of the Code, is that “by which the donee, heir or legatee is charged to preserve for, .or to return a thing to a third person.” Now, in MoOalop’s will, his great grandchildren are the instituted heirs. They are certainly not charged with the return of his estate to any third person, nor to preserve it for any third person. The testator clearly expresses his intention that the property which he bequeaths to his great grandchildren, shall be kept together — that there shall be no partition of the same — until the heirs come to age. But this disposition is expressly sanctioned by the Article 1224 of the Civil Code. Again, the dispositions in favor of the testator’s daughter and her husband, and in favor of his granddaughters, Mrs. Williams and Mrs. Dovgherty, the mothers of the instituted heirs, cannot be viewed as substitutions. They are usufructs, and as such, are within the purview of Article 1609 of the Code. The duration of these usufructs is different, and it depends upon contingency whether that in favor of the testator’s granddaughters shall have effect at all.

That in favor of his daughter, the plaintiff, is only to terminate with her life. It is an unconditional usufruct, which commenced immediately on the decease of her father. But the usufruct in favor of the testator’s granddaughters is conditional, and not intended to take place at all, except on the happening of a certain contingency, to wit: their survivorship of their mother. As to one of those granddaughters, the condition has already foiled, for Mrs. Williams has died since the institution of this suit. Again, as to the duration of the usufruct to the granddaughters, it was not, like that of their mother, contemplated to be co-extcnsive with their lives, but only to last during the minority of their children, the instituted heirs. Therefore, if the plaintiff should live until her grandchildren come of age, the usufruct of Mrs. Williams, her surviving daughter, will never take place. The prevailing idea of this will seems to be the assuming to the heirs of the testator, during their minority, an administration of the estate which their ancestor had provided for them, by parties selected by that ancestor, and who will be the most likely to watch over-their interests with jealous care. The testator could not effect this object by an appointment of testamentary tutor; for the fathers and mothers of his heirs were all living. Under these circumstances, he adopted the method of a constitution of usufruct in the grandmother and grandfather of those heirs (the former his own only child) ; and failing those, in the mothers of the heirs. There is nothing in the dispositions of the will in this regard, which is contrary to law. Usufruct may, from its origin, (des son origine,) be conferred on several persons, in divided or undivided portions. C. C., 581. Usufruct may be established simply, or to take place at a certain day, or under condition ; in a word, under all such modifications as the person who gives such a right, may be pleased to annex to it. C. C., 534.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that the plaintiff be recognized as forced heir of James Mo Galop, deceased, to the extent of one third of his property, and as such that she be put in possession of one third of his estate as owner ; that in other respects, the will of James MoGalop be maintained with right of usufructuary to the plaintiff in the remaining two thirds of his estate, during her life; and that the costs of the District Court be paid by the succession of James Me-Oalop, and those of this court by the plaintiff and appellee.


author: Voorhies, J.

text:
    Auguste Christine, Tutor, &c., v. Pierre Verbois, Executor.
    Nuncupative will by public act annulled because there was nothing in the context to show that the witnesses were present when the will was received by the notary.
    APPEAL from the District Court, Sixth District, parish of Iberville, Robertson, J.

      Ldbauve, for plaintiff. Robertson, for defendant and appellant.
   Voorhies, J.

The nuncupative testament, .by public act, of the late Elmire Christine is sought to be annulled by this action, on several grounds of nullity, one of which is, “ that the will was not dictated by the testatrix and received by the notary, in presence of three witnesses, as no mention of the same is therein made.”

The Code, Article 1571, requires the nuncupative testament by public act to be received by a notary in presence of three witnesses residing in the place where the will is executed, &c.

In the present ease, the act per se does not appear to have been dictated by the testatrix and written in presence of the witnesses. The caption recites that the act was written by the notary at the request of the testatrix and as dictated by her, but makes no mention that it was done in presence of the witnesses. In the conclusion, the notary certifies that the testatrix signed the act in presence of the witnesses, “ after having read the same in an audible voice, in presence of the testatrix and the said witnesses, without interruption or turning aside.” Certainly this cannot be construed as implying that the will was received by the notary in presence of the witnesses. We have been unable to discover, from the context of the instrument, anything that would sanction the conclusion that the witnesses were present when the will was received by the notary.

Judgment affirmed, with costs.