author:
Buchanan, J.
      Merrick, 0. J., Oole, J.,

text:
    Sosthene Thomas v. Ship Morning Glory and Owners.
    The common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas,) or of public enemies, but he may limit his responsibility by special notice of the liability he means to assume, so that the shipper will be bound to prove negligence or fault in the carrier in "case of loss or damage in the goods shipped.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Hunt & Denegre, for plaintiff and appellant.

      Singleton & Clack, for defendant.
   Buchanan, J.

Plaintiff claims of defendants for loss, occasioned by leakage, upon a shipment of Brandies per ship Morning Glory, from Bordeaux to New Orleans. The shipment consisted of twenty-five half pipes, twenty-five quarter pipes, and other packages.

On the arrival of the ship at her port of destination, and the unloading of her cargo, it was found that three of the half pipes, mentioned in the bill of lading, were entirely empty, and a quarter pipe partially so. The witnesses are of opinion that these casks were crushed by the pressure of cargo.

The defence is put upon two grounds:

1st. That the bill of lading contained the following clause: “Not accountable for leakage.”
2d. That by the custom of the port of Bordeaux, which was observed in the case of this ship, the stowage of the cargo was done by stevedores employed and paid by the shippers of the cargo.

The common carrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas) or of public enemies. But the tendency of the more modern decisions has been to permit the carrier to limit his responsibility by special notice of the extent of the liability which he means to assume. The goods, in that case, says Chancellor Kent, (Comm’s, lecture 40,) are understood to be delivered on the footing of a special contract. Story on Bailments, § 549. Angelí on Carriers, § 220.

In conformity with these authorities, under a clause in a bill of lading, “ not accountable for leakage,” it was lately held by Mr. Justice Campbell, sitting in the Circuit Court of the United States in this city, that the shipper was bound to prove negligence or fault in the carrier, before he could recover the value of certain glass show cases, conveyed on freight from Philadelphia to this port, and delivered broken. Case of Merryman v. Brig May Queen.

The doctrine thus sanctioned by precedent seems conformable to the general principle, that in whatever manner a man has bound himself towards another, he shall remain bound. The clause in the bill of lading limiting the responsibility of the carrier, is not to be understood as having exempted him from liability for leakage occasioned by the fault or negligence of himself or his agents ; but as throwing upon the bailor the burden of proof of such fault or negligence, as a prerequisite to recovery under the contract. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 384.

The fault which is imputed to the ship in argument, is bad stowage of cargo, causing an undue pressure upon the casks in the lower tier. The proof of bad stowage is not satisfactory. The Morning Glory was a very large ship, of upwards of 1100 tons burden. Her cargo consisted of 2519 casks of wine and brandy. The casks in her lower hold were stowed six or seven tiers deep, upon a bed of ballast, and properly dunnaged. The ship experienced very rough weather on her passage from Bordeaux to New Orleans, with a very heavy head sea, causing her to pitch, bows under. Her cargo does not appear to have shifted, but some of the quoins worked out from between the casks. The port-warden, MeCerren, an experienced seaman, gives it as his opinion that the loss by leakage was smaller, in proportion to the size of the cargo, than is usual in ships from Bordeaux.

II. The second ground taken, is that the ship is not liable in this instance for the stowage of the cargo, admitting it to have been defective; because, by the custom of the port of Bordeaux, the charterer of the vessel, or the broker who procures the cargo, acting for the shippers, has a recognized right to employ the stevedore who loads the ship.

The proof of this custom is entirely conclusive. It appears from the testimony of many shipmasters in the Bordeaux trade, that the right of the shipper, or his agent the ship broker, to employ his own stevedore to load the cargo, has been sustained, in spite of the opposition of masters of. American vessels, in that port. It is also proved that the Morning Glory was loaded on this voyage by a stevedore employed by the shippers of the cargo. This evidence may afford an additional reason for the insertion of the clause of limitation of the carrier’s responsibility, which we find in the bill of lading. As the carrier had no control of the loading of his ship, it seems but natural that he should stipulate not to be liable for the fault or incompetency of the person who loaded her ; and which person was, in truth, the servant or agent of the opposite party in the contract of affreightment.

Judgment affirmed, with costs.

Merrick, 0. J.,

concurring. The loss of the wine and brandies, I think, was attributable to the stowage.

The plaintiff having himself employed such agents for the stowage of his goods, as are required by the requisitions of the authorities at the port of Bordeaux, and having accepted a bill of lading expressly exempting the carrier from responsibility on account of leakage, cannot, in my opinion, recover, it being shown, as just mentioned, that the loss was occasioned by the stowage. On this ground I concur in the decree.

Oole, J.,

concurring. I concur in the conclusion of Mr. Justice Buchanan on the second ground assumed by him, but not on the.first, on account of the peculiar circumstances of the case at bar.

I consider that the clause in the bill of lading, not accountable for leakage,” does not justify the common carrier in the delivery of empty casks, and put the onus probandi on the consignee ; it does not mean “ not accountable for empty casks.” In my opinion the clause signifies'that the vessel is not liable for ordinary leakage; but it does not mean, that if the casks are broken by unskilful stowage, and the whole of the wine lost, that the ship will not be responsible. The ordinary signification of leakage is the loss of a part, but not of the whole. I admit the common carrier may limit his responsibility, but then it must be in clear and well defined terms ; for this limitation is an exception to the general rule, and a waiver of the provisions of law in favor of the ’ owner of the merchandize shipped.

In one of the cases at bar, some sixteen casks of claret were broken through and entirely empty.

I admit that, for ordinary leakage, the vessel, under the clause, can put the burden of proof on the owner of the goods.

I do not consider the case of Merriman v. Brig May Queen, as applicable to that at bar. The articles shipped in that suit were “ glass counter show cases,” and the restriction in the bill of lading was : “ Goods to be receipted for on the levee; not accountable for rust, breakage, leakage, cooperage ; weights and contents unknown.” It does not appear that these “ show cases ” were smashed; it may be that they were only cracked, and then the clause in the bill would have protected the ship. The decision of Mr. Justice Campbell would perhaps have been different, if it had been established that the “ show cases ” had been entirely crushed by bad stowage.

Mr. Justice Campbell, in his opinion in that case, says : “ The freight clerk who received the cases testifies, that the manufacturer made the freight engagement with him ; that he was informed that articles of the kind contained in the cases (glass counter show cases) would not be received except on the restriction of the liability, and that only the ordinary freight was charged. This evidence is supported by another witness and contradicted by none.”

I do not contest the doctrine in New Jersey Steam Nav. Co. v. Merchants’ Bank, but maintain that decision does not controvert the principle that, a common carrier cannot be released beyond the extent of the limitation in the bill of lading. In the case at bar, the common carrier could have inserted in the bill that he would not be responsible for the delivery of the wine ; then he could not hav<^ been held liable for the delivery of empty casks. But when he binds himself' not to be responsible for leakage, he is bound to deliver the quantity of wine in the casks less that lost by ordinary leakage. The burden of proof would not be upon him for ordinary leakage, under the limitation of' leakage in the bill, but if under this restriction, the casks are empty, then the burden of proof, as a general rule, would be upon him.

It is alleged that the loss by leakage was smaller in proportion to the size of the cargo, than is usual in ships from Bordeaux.

I consider that one of the owners cannot be forced to suffer the loss of leakage for the whole cargo. If it had been proved that the leakage on the casks of the' plaintiff was not more than usual, then the ship would not have been liable, but it cannot justify the delivery of empty casks to one of the shippers because his particular loss was not more than the customary leakage of the whole cargo.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    J. B. Bailey v. Samuel Doak and Alexander Smith.
    The defendants were sued as the partners of a third person to render them liable for the drafts of the latter, as advances to a firm of which they are alleged to be members—Held : that one was not a competent witness for the other to prove that he was not a member of the firm.
    APPEALfrom the Fourth District Court of New Orleans, Reynolds, J.

      McCay Edwards, for plaintiff.

      Mantón fy Miller, for defendants and appellants.
   Merrick, C. J.

The present suit is brought against the defendants as the partners of one Williamson Smith, for advances made by the plaintiff to him (Williamson Smith) on the drafts of the latter, for the alleged benefit of the firm.

On the trial of the case Doah offered the deposition of his co-defendant Alexander Smith to prove that he, Doah, was not a partner. The testimony was excluded and Doah has reserved his bill of exceptions.

His counsel contends in this court that the testimony was admissible, because the witness was offered to testify against his interest: lor if Doah was not a partner, then Alexander Smith would be bound to the plaintiff for the whole debt instead of having a claim against his co-defendant.

It is true that parties bound ex contractu in solido, do not stand in the same relation to each other that trespassers do, and it may be, in the present case, the witness has testified against his interest, yet we think his testimony was properly rejected. If Smith could testify for Doah, why could not Doak testify for Smith, and thus defeat plaintiff’s demand altogether? If the partnership assets exceed the debt, and Smith, after he shall have made payment, holds this claim over against them, it is not so clear that the witness will testify against his interest should he swear to the fact for the proof .of which he is offered. We think it the safer rule to exclude the testimony of one of several defendants against whom a prima facie case has been made out by proof and who is offered to contradict the evidence of plaintiff’s witnesses against his co-defendant. 1 Greenleaf, sec. 354; Scott v. Lloyd, 12 Peters, 149; Baudoin v. Nicholas, 12 Rob. 594; 16 L. R, 300; C. C. 2260; 12 M. 289; 2 N. S. 455.

If the testimony of Alexander Smith be rejected, the evidence of plaintiff’s witnesses is uncontradicted. Three witnesses swear that Doah was a partner and his letter of September 28,1852, corroborates the testimony of the witnesses.

Judgment affirmed.


author: Spofford, J.

text:
    Oakey & Hawkins v. The Sheriff et als.
    The Articles of the Code relative to payment with subrogation, do not apply to the case of an.absolute transfer of a debt which includes its accessories, such as privileges and mortgages.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Bowman Sf Delee, for plaintiffs.

      W. F. Kernon, for defendants and appellants.

      T. Hardesty, for intervenor.
   Spofford, J.

This is an injunction sued out to restrain the Sheriff from paying over to one Gurney, as seizing creditor, the proceeds of the sale of certain lands belonging to McElwee, upon which the plaintiffs claimed a superior privilege by reason of a prior judicial mortgage, which had been transferred to them.

They had judgment in their favor and Gurney, who is the real defendant, has appealed.

, He contends that the injunction was too late, because the twelve months bond, representing the proceeds of McElwee’s land,-had been delivered to him.

But he has precluded himself from relying upon such a defence by the terms of his receipt for the money from IGlbourne, the obligor in the twelve months bond. He received it “ as though the same had been paid - to the Sheriff upon execution issued upon said twelve months bond.”

It is not pretended by Gurney that the judicial mortgage created by the registry of the judgment of Hardee ¡¡f Sandal against McElwee, since assigned to the plaintiffs, did not overreach his own claim upon the proceeds of the land. But he contends that said judgment was extinguished by payment, and that the plaintiffs, Oakey Hawkins, have no interest in it.

But it does not appear that this judgment was ever satisfied. The judgment creditors, on the 21st of February, 1856, in consideration of a promised acceptance of Oakey & Hawkins, payable 10th Jan. 1857, for the balance due thereon, transferred the judgment to said Oakey & Hawkins. They, upon accepting said draft, March 7th, 1856, became assignees and holders of the judgment, which could only be satisfied by McElwee paying them its full amount. He has never paid them. The clause about “ subrogation” in the transfer, may be disregarded as surplusage. The transfer of a debt includes its accessories, such as privileges, mortgages, &c. C. C. 2615.

The Articles of the Code relative to payment with subrogation, do not apply to this case.

When Oakey & Hawkins sued out their injunction, they were the lawful holders and owners of the judgment of Hardee & Sandal against McElwee, which has never been satisfied.

Their acceptance has since been paid by one Mills, a stranger to McElwee, so far as appears. Mills has a claim upon Oakey & Hawkins for money thus advanced for a debt of theirs. But Oakey & Hawkins, never having transferred it, still own the Hardee § Sandal judgment, which McElwee has never paid, and which was never extinguished.

A third opposition would have been a more prompt and proper remedy, but we are not prepared to say that the injunction is not a concurrent remedy.

Judgment affirmed.


author: Merrick, O. J*.

text:
    William Pellenz v. D. Bullerdieck.
    In an action for damages for a malicious prosecution, it is essential to maintain the action that both malice and want of probable cause should ho shown.
    A tenant lias a right to removo the improvements and additions he has made, provided he leaves the property leased in the state in which he found it, but when the additions are made with lime or cement, or the like, the lessor should be notified by the lessee of the intention to remove them, in order that the lessor may exercise his right of retaining them or paying a fair price.
    ÁPPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      L. U. Gaennie and T. W. Collens, for plaintiff.

      Durant & Horner, for defendant and appellant.
   Merrick, O. J*.

This is a suit for a malicious prosecution. The defendant having been condemned to pay f500 damages, prosecutes the appeal.

To judge of the question of malice and the want of proble cause, both of which are essential to maintain the action, we must look at the case as it appeared to the defendant when he made the complaint. The defendant was the testamentary executor of Fink’s will, and there is no testimony to show that he was aware of the fact that the repairs and improvements put upou the property six years previously, had been put there by the tenant instead of Fink, and it was reasonable to suppose that they had been made by the lessor. Again, the defendant acted on the information of Ambrose Hauton, and the affidavit he subscribed before the Recorder instead of being positive, states that William Pellenz did, as deponent is informed, take, steal and carry away from a house belonging to the estate of the late John D. Fink, for whom deponent is testamentary executor, and which house the said William Pellenz was occupying as tenant, a number of windows and doors, &c., belonging to the estate, valued at about $200. "Wherefore he charges the said William Pellenz with having committed larceny, ¡&c., and he signed the affidavit as testamentary executor.

The proof shows that the plaintiff, after he had been notified to quit, pulled down a shop built by himself upon the premises, and also took out the doors and windows of the house, as well as the show case and shelves. The testimony does not show that it was taken away by stealth, but that the removal was in the daytime, although Hauton swears that Pellenz kept the gate of the yard locked, and that he looked through the gate and saw the lumber in piles in the yard.

Both Pellenz and Bullerdieck appear to be Germans, and it is not probable that either of them is acquainted with the distinction between a theft of movables severed from the freehold and a mere trespass. If Bullerdieck intended to charge the plaintiff with the act of taking down and removing the door and windows from the house by one continuous act, it was trespess and not larceny. If the charge was that Pellenz had taken down these windows and doors and suffered them to remain any time upon the property, and then cladestinely removed them, it might have been larceny. Wharton, Crim. Law 552, 2d edit. It is true, that the tenant has, under our law, a right to remove the improvements and additions provided he leaves the property in the state in which he found it; but where the, additions are made with lime or cement, or the like, the lessor should be notified by the lessee of the intention to remove them, for he has the right to retain them on paying a fair price. C. C. In this instance the option might have been important, for Haughton swears that the plaintiff was in arrears of rent to the amount of $260.

Under the circumstances of this case, we think the plaintiff has failed in establishing malice on the part of the defendant, without which the action cannot be maintained.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that there be judgment in favor of the defendant and against the plaintiff’s demand, the latter paying the costs of both courts.

Sfofford, J., took no part in this case.


author: Buchanan, J.

text:
    Mrs. Clague et al. v. The City of New Orleans.
    In order to entitle tlie city corporation to exemption from liability for tbe loss of a slave who was placed in jail for safe keeping, and ranaway while employed at work, it is necessary timely notice should have been given by the city to the owner of the slave.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    (?. Legardeur, for plaintiffs and appellants.

      J. J. Michel, for defendants.
   Buchanan, J.

The petition charges that plaintiff’s slave was put into the police jail of New Orleans, by their agent, for safe keeping, in the summer of 1855 ; that in October, 1856, plaintiffs demanded delivery of their slave, and was answered by the jailor, that the slave had runaway from the custody of the driver, while out at work in the chain-gang, in the month of August preceding, and had not been heard of since.

Plaintiffs claim of the city the value of the slave, on the ground that he had been put out to work in the chain-gang without their knowledge, participation or consent; and that he was lost to them in consequence of the illegal act of the agents of the city in so employing the slave, and their negligence in suffering the slave to abscond while so employed ; and their laches in not giving timely notice of his absconding to the agent of plaintiffs.

An exception filed by defendants, that the petition contains no cause of action, was sustained by the District Court, and the suit dismissed. Prom this decision plaintiffs appealed.

In the case of Chase v. The Mayor et al., 9 La. 346, it was held that the city was not liable for the value of a slave who ranaway from the chain-gang, timely notice of such escape having been given by the city to the owner of the slave.

In Fassman v. The City, decided very lately, wb held that the city was not liable for the escape of a slave who had been bought by the plaintiff as a runaway, no notice of his habits having been given to the city officers, and the proof of delivery being doubtful.

The allegations of the petition in the case at bar, seem intended to meet the case in 9th Louisiana Reports. It appears, therefore, to state a cause of action under the authority of that decision.

Judgment reversed, exception overruled, and cause remanded for further proceeding according to law; defendant and appellee to pay costs of appeal.


author: Cole, J.

text:
    The State of Louisiana v. James Nolan.
    It is too lato after conviction in a criminal case, to raise au objection to a juror for a cause existing anterior to tlie swearing of the jury.
    Itis a good cause of challenge on the partof the State, that a juror has conscientious scruples against the infliction of capital punishment.
    Where it appears that the accused had sufficient time to have filed a motion containing all his grounds for a new trial, the refusal of the court below to permit additional grounds to be added on the trial of the motion, and to receive evidence in support of them, hold not to be a sufficient ground for reversing the judgment.
    ÁPPEAL from tlie First District Court of New Orleans, Hunt, J.

      E. W. Moise, Attorney General, for tlie State.
    A. P. Field and Blocker, for appellant.
   Cole, J.

The prisoner having been convicted of murder and sentenced to capital punishment, has appealed. He rests his hope of a reversal of judgment on the following grounds:

1.It appears that one of the jurors had been naturalized in the First District Court of the parish of Orleans; and appellant attempted to offer in evidence the record of the said court, to prove that said juror took the oath of allegiance on the 21st of October, 1852, for the purpose of showing that he was not a citizen of the United States, and said court had no legal authority to naturalize him. The court did not err in sustaining the objection to the introduction of this testimony.

If the juror was an alien, it would have been good cause of challenge, but it is too late to object on that ground after conviction. The objection ought to have been made before he was sworn. The accused cannot be permitted to save the objection, and take the chances of a verdict and have it set aside, if it be adverse to him, for a cause existing anterior to the swearing of the juror; by not challenging he waived the objection. State v. Dick, 4 An. 182.

It has been held that the incompetency of a juror is not good cause for setting-aside a verdict in cases where a juror was an atheist, not indifferent, not a freeholder, an infant, an alien. McAllister v. State, 17 Ala. 434; Presbury v. Com. 9 Dana, 208; State v. Babcock, 1 Conn. 401; Hollingsworth v. Duane, 4 Dall. 353.

The copy of the indictment and list of the jury were served on appellant two entire days before the trial. The design of the law in causing these documents to be served on the prisoner, is to give him an opportunity of investigating- the qualifications and characters of the jurors, so as to enable him by a discreet exercise of the right of challenge, to obtain an impartial jury for his trial.

It would be unwise to reverse a verdict on the ground of the objection that one of the jurors was an alien, because he was not naturalized in a competent court, for it is entirely technical. It does not impugn the fitness or impartiality of the juror, and ought to have been urged before he was sworn, and before the State was at the trouble and expense of a trial.

2.The court did not err in permitting the Attorney General to challenge for cause certain persons, upon the ground that they had conscientious'scruples against the infliction of capital punishment. Those who are unwilling to inflict the punishment imposed by the law, are not good jurors. 11 An. 284.

3.The court properly refused to admit evidence to prove that while the Deputy Sheriff had charge of the jury, and during the deliberations of the jury, wine and other spirituous drinks were introduced into the jury-room and drank by the jurors, as no such point or ground was in the motion. We do not deem it proper to condemn the refusal of the court to allow the point to be added and made a part of the motion for a new trial, inasmuch as the accused had sufficient time to have filed a motion containing all his grounds for a new trial, and the court may have thought that delay was his only object.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed.


text:
    Henry E. Thomas & Co., in liquidation, v. Lusk & Co.
    In a suit against an individual partner of a commercial firm, liis interest in a particular asset cannot be seized.
    The partnership cflbcts cannot bo seized under an attachment against a non-resident partner when the domicil of the firm is in New Orloans.
    APPEAL from the Third District Court of New Orleans, Duvignaud, J.

      F. Perin and C. Roselius, lor plaintiffs and appellants.

      Elmore If King for defendants.
   Merrick, C. J.

Lusk If Co. had their domicil in New Orleans, where two of the members of the firm reside. Rufus B. Lusk, the other partner, resides in Central America. The action was brought for $6,430 10 for merchandise sold them in the city of New York by Patrick H. Rooney and Joseph A. Boane, doing business under the style of Henry E. Thomas Co. It is alleged that the goods were sold for cash unless settled for in thirty days by notes for cigars, and eight months for tobacco, payable at New Orleans with exchange on New York, and that defendants failed to deliver the notes within the thirty days. It was further alleged that the goods were obtained on certain representations of the defendants, which are specially set forth.

Petitioners prayed for judgment in solido against the defendants, and an attachment against Rufus B. Iruslc and process of garnishment against sundry firms of this city.

The garnishees answered, showing funds of Lusk §• Co. in their hands.

The defendants excepted, alleging that a credit of eight months was given them and that the suit is premature, and that they never contracted with Henry E. Thomas cj" Co., and the plaintiffs have no right to stand in judgment against them.

Rules were also taken by Lusk If Co. upon plaintiffs, to show cause why the attachment should not be set aside on the ground that the property of the partnership, which is unable to pay its creditors, cannot be taken to pay the debts of an individual partner, and also to show cause why the defendants should not be permitted to bond the property.

A few days previous to the taking of these rules, the parties entered into the following agreement, viz:

Henry E. Thomas & Co., in liquidation, v. Lusk & Co.
TWrd Distóct 0ourt of New 0rleans-
Agreement between parties to the above entitled case witnesses, that whereas the defendants have represented to plaintiff’s attorney that there is a sufficient amount of property, money, &c., attached in the hands of R. B. Sylces to satisfy the claim of plaintiffs, to wit, $6430 19, with seven per cent, per annum interest, from Ith of November, 1857, and costs of suit, as claimed in plaintiffs’ petition ; and whereas, defendants wish to make settlements with other garnishees in the case, who made purchases at the late auction sale of their stock of goods; it is now, therefore, agreed that the attachments in the hands of Thompson & Barnes, Dyas & Co., E. Conery, Lapene & Ferre, W. Brooke and Wheeler & Blake, be set aside at costs of defendants, if finally cast in the attachment. Defendants to leave in the hands of said R. B. Sylces, subject to said attachment, a sufficient amount to satisfy said claim of the plaintiffs.
(Signed) F. Peris, Attorney, for plaintiffs,
Lusk & Co.
New Orleans, January 12,1858.”
This agreement does not waive the right that defendants or any one of them have to move to set aside this attachment, or to bond the property attached, or to set up a claim to the ,same by way of intervention, or any other legal rights or defence against the attachment not embraced in this agreement.
(Signed) F. Perin, Attorney for plaintiffs,
Lusk & Co.”

On the trial of the rules the attachment was set aside, and the rule permitting defendants to bond the property was also made absolute.

In the meantime, the plaintiffs had filed an amended petition denying the truth ot the representations made by defendants, upon which they had obtained the merchandise, and alleging the purchase by defendants was fraudulent and void.

Defendants excepted that the amendment was inconsistent with the previous demand and an abandonment of the same as well as the attachment.

Leave was then granted to plaintiffs to withdraw the supplemental petition, and it was further ordered that the case do stand on the original petition. But the court being of the opinion that the filing of the supplemental petition was an abandonment of the original petition and, as a necessary consequence, the withdrawal of the supplemental petition left nothing for the court to determine, dismissed the plaintiffs’ demand. The plaintiffs appeal.

The appellee calls our attention to the appeal which is taken to the judgment setting aside the attachment in the case of petitioners v. Lush & Co., rendered on the 28th day of January, 1858, dismissing the said suit, and in other orders and decrees of the court by which plaintiffs believe that they have been aggrieved.”

It may be that plaintiffs have mistaken the date of the judgment dismissing the action, but as there is no motion to dismiss the appeal, we discover nothing to prevent the examination of all the orders and decrees contained in the record. The whole case must be considered as before us.

The first question presented for our consideration is, whether the District Judge erred in setting aside the attachment on the grounds urged by the defendants.

The suit, it is true, is brought against Lush & Co. as debtors in solido, and the attachment is against Rufus B. Lush, one of the partners, and levied upon his interest in a partnership effect. But it appears to us this does not strengthen plaintiffs’ case.

If the suit be considered as a suit against Rufus B. Lush individually, then it is clear that the interest of an individual partner in a particular asset cannot be seized in this manner. If the suit be considered as against a co-partnership composed of three members, then the attachment cannot be maintained, because there is no averment that the domicil of the firm is out of the State of Louisiana or elsewhere than New Orleans, and the authorities are conclusive that where the domicil of the firm is New Orleans, the partnership effects cannot be seized under an attachment against a non-resident partner. If this cannot be done directly, it cannot be done indirectly by seizing the undivided interest of the absent partner in a particular asset of the firm, for this would produce the same result as the seizure of the entire thing. Monroe v. Frosh, 2 An. 963; Sherleij Escott & Co. v. Steamer Bride, 5 An., 261; Carvin v. Bates, 10 An. 756; Smith v. McMicken, 3 An., 319.

We think the reservation in the agreement authorized the motion to set aside the attachment.

The next point for our consideration is the judgment of the court dismissing plaintiffs’ action. We are of the opinion that the filing of the amended petition was not such an absolute waiver of plaintiffs’ original demand as to put his cause of action out of court, even if it be conceded that the demands were inconsistent. The plaintiffs certainly could not be in a worse condition after they filed their amendment than they would have been if they had embraced both demands in their original petition. In that case they would have had the right to elect which cause of action they would prosecute. C. P.,. 152. So soon as the objection was made by the defendants to the amendment, plaintiffs elected to prosecute their original demand, as they were entitled to do under the Article of the Code of Practice cited', and this did not operate a forfeiture of the action.

The judgment must therefore be reversed.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court dismissing plaintiffs’ demand be reversed, and it is ordered that this cause be remanded for further proceedings according to law, the order of the lower court setting aside the attachment to remain undisturbed; and it is further ordered that the defendants pay the costs of the appeal.


text:
    State of Louisiana v. J. L. Fabre, Recorder.—On the relation of Adam Bach.
    An appeal to the Supreme Court cannot he taken from a peremptory mandamus issued hy a District Court of the city to compel the Recorder to allow an appeal to such District Court from a sentence of the Recorder imposing a fine of less than $300.
    from the Third District Court of New Orleans, Buvignaud, J.

      J. J. Michel, for appellant.

      Collens 1f Wooldridge, for appellee.
   Buchanan, J.

One of the Recorders of the city of New Orleans, having imposed a fine of fifty dollars upon Adam Bach for a violation of city ordinances, Bach applied for an appeal to the Third District Court of New Orleans. The application was refused by the Recorder. Bach then filed his petition in the Third District Court of New Orleans for a mandamus, to compel the Recorder to allow the appeal. The Recorder answered the petition by alleging that the District Court was not vested by law with an appellate jurisdiction over the Recorders of tlie city. After Bearing, the District Court rendered judgment, making the mandamus peremptory. From this judgment the Becorder appeals, and the appellee {Bach) moves for a dismissal of the appeal, on the ground (among others) that the amount in dispute does not exceed three hundred dollars.

The judgment rendered by the Becorder was a money judgment. If there be any thing else in dispute than the amount of that judgment, (which is clearly far below the appellate jurisdiction of this Court), it is the question of jurisdiction of the District Court, and that question cannot be reached, in this form, at least.

It is, therefore, adjudged and decreed, that the appeal be dismissed with costs.


text:
    Sterling T. Seawell v. Green, Harding & Co. et al.
    A trust deed, made in tlie State of Texas, assigning personal property for the benefit of certain named creditors, will not, in the absence of any evidence of the law of Texas, be permitted to prejudice the claim of a creditor of the assignor attaching his assets in the hands of a third person in Louisiana.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Race if Foster, for plaintiff and appellant.

      McCay fy Edwards, for appellees.
   Spofford, J.

The plaintiff sues as assignee of W. R. Rawlings under a trust deed, made in the State of Texas, assigning property for the benefit of certain named creditors.

The object of the suit, by the assignee, is to obtain possession of certain notes or their proceeds, belonging to said Rawlings, but left with Green, Harding if Co. in New Orleans, as collateral security, and still in their hands, in the State of Louisiana.

Seawell Rawlings reside in Texas, the other parties in Louisiana.

Seawell notified Green, Harding & Co. of the assignment by letter. Subsequently the claims of Rawlings in the hands of Green, Harding & Co. were attached in this State, at the suit of Moses Greenwood & Co., Louisiana creditors of Rawlings.

The question is whether Seawell, as assignee of the debtor Rawlings, can now recover to the prejudice of the rights of Greenwood & Co. as attaching creditors.

There is no evidence whatever of the Texas law. Under the law of Louisiana, such an instrument as that under which Seawell asserts his rights, would not be permitted to prejudice the claim of a creditor of Rawlings who attached in the hands of Green, Harding & Co., even though they had been notified of the existence of such deed of trust.

The judgment is, therefore, affirmed, with costs.


author: Merrick, C. J. Spoitokd, J.,

text:
    John Maguire v. M. W. Hughes.
    The Mayor of tlie town, of Jackson being by law ex officio Justice of the Peace, has the power to issue warrants for the arrest of criminals.
    The error of a magistrate in issuing a warrant without an affidavit will not render him liable for damages if ho acted in doing so in good faith audfor what he deemed to bo the public good.
    A warrant issued by a Justice of tho Peace to arrest a criminal is a complete protection to the Constable acting under it and those callod on by him to assist in executing it.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      W. F. Kernon and J. T. Heath, for plaintiff.

      Muse & Hardee and Bowman & Delee, for defendants and appellants.
   Merrick, C. J.

This is an action brought against the Mayor and Constable of the town of Jackson, and another for an alleged illegal arrest and ill treatment of the plaintiff while under arrest. The defendants appeal.

We are all agreed that the Mayor of the town of Jackson, under the Act of 1832 (p. 160), had the power to issue the warrant for the arrest of the plaintiff notwithstanding the Constitutions of 1845 and 1852, and as a consequence, that the warrant so issued was an ample protection to the Constable acting under it and those called upon by him to assist in executing the warrant.

A majority of the court are of the opinion also, that judgment ought to be rendered in favor of the Mayor who issued the warrant as well as the Constable who acted under it.

The power granted by the Act of 1832 to the Mayor was limited to certain criminal matters therein named, and thus was merely ministerial, but within these limits and the matters expressly confided to Mm, as efficient as that of the Coroner, as a conservator of the peace, or of any other magistrate. It is declared in the Act, that he shall be ex officio a Justice of the Peace within the limits of the town of Jackson and shall be commissioned accordingly, and that he shall have power to suppress all riots, routs, affrays, tumultuous assemblies, and all breaches of the peace, and arrest offenders in the same way and manner as Justices of the Peace may or can do. Sec. 4, No. 4, p. 160.

The Mayor and Trustees of the town by the same Act are empowered to pass by-laws for the government of said town, provided the .same are not repugnant to the Constitution and laws of this State or of the United States. Sec. 4, No. V.

The first section of an ordinance of the town approved 24th of March, 1854, is in these words : “ Be it ordained by the corporate authorities of the town of Jackson in regular meeting convened; That it shall be the duty of the Mayor to have the laws of the corporation strictly executed. When he may know or information is given by others of said laws having been violated by any person or persons, he shall immediately issue a writ commanding the Constable to take into his custody the person or persons so offending, and bring them before Mm for trial, and if upon the trial of said person or persons it shall appear that they have been guilty of a violation of any ordinance of said town, it shall be the duty of the Mayor to fine said person or persons in a sum not less than one dollar nor more than fifty dollars, and to order said person or persons to stand committed until said fine is paid.”

The ordinance of the 10th day of April, 1854, prohibited the sale of spirituous liquors and imposed a penalty for its contravention not exceeding fifty dollars. See Acts of the Legislature, 1852, p. 83,1854, p. 154.

The warrant was issued without affidavit and evidently under the erroneous belief that the ordinance first recited authorized the Mayor to issue it in that form on a written information merely. The warrant commences with this 'recital: “ Information having been laid before me, that John McGuire has been guilty o f a violation of the laws of the State aforesaid, by selling spirituous liquors within the town of Jackson, State and Parish aforesaid, within the last thirty days,” &c.

So soon as the accused was brought before the Mayor and he was informed that the warrant was illegal without an affidavit, he discharged the accused. There is nothing in the record to show or lead us to suppose, that the Mayor was not acting in the most perfect good faith and for what he deemed to be the public good, under a mistaken idea of the law of the case. He had power to issue the wai'rant and bind over the accused, as we 'ail admit, but he ought not to have issued it without an affidavit. Ought he to be held personally responsible for a mere error of judgment ? We think not. Under the peculiar system of the English common law it seems to have been held that a justice of jieace is liable for an arrest under a warrant issued without affidavit, unless the offence be committed in his presence; but this principle does not seem to be extended to any other case in which a discretion is vested in him. Under that law, it would seem that if a Justice of the Peace issue a warrant without the oath of the party complaining, it ■ would be trespass, and ho would be liable in damages, but if issued by the order of a Judge of a court of record or other high officer, it would be presumed to be a mistake. Such officers would not be liable. See Bacon’s Abridgement, verbo Trespass D.

We do not think this principle of the English law ought to bo admitted in Louisiana. A public officer, whether judicial or ministerial, acting in good faith, under a discretion vested in him by law, ought in general to be protected against an action for damages arising from an erroneous exercise of such discretion.

With us, Justices of the Peace in the country towns, and wards of country parishes, are mostly men without legal learning. In criminal matters they are often called upon to act upon sudden emergencies, and they have not time to consult men learned in the law as to the form of their proceedings. The interest of the public requires that they should act promptly; now, to hold that they shall be responsible in damages for errors of judgment is to destroy their efficiency and prevent the best men from accepting the office.

Lord Mansfield said, one hundred years ago, in a criminal prosecution against two Justices, Young and Pitts, “ If their judgment is wrong, yet their heabt and intention pure, God forbid that they should be punished; ” and he declared “ that he should always lean towards favoring them unless partiality, corruption or malice shall clearly appear.” Mr. Justice Wilmot said, in the same case, “ Then, the sole discretion being in them, the bule is invariable, that this court will never interpose to punish a Justice of the Peace for a mere error in judgment.” 1 Burrows, 562-3.

And so it has been held in Louisiana. It is laid down in 1 L. R., 136, speaking of a Justice of the Peace, 'that a Judge is not answerable civiliter for an error in judgment so long as he acts within his jurisdiction. Nor can it make any difference that his acts are considered ministerial; if he is intrusted with a legal discretion in the exercise of his functions, although his orders in criminal matters conclude nothing and are not in that sense judgments, he ought to be protected in the honest discharge of his duties, notwithstanding his errors may subject parties to some inconveniences, and such seems to be the settled doctrine of this court. See the cases in 2 An., 968, and 5 An., 580.

We do not consider that in the conclusions to which we have arrived on this branch of the case, we are overruling any decisions upon the subject.

The action brought is a civil suit governed by -the laws of Louisiana. We find the doctrine laid down in three decisions of our own courts, as we have announced it, and the question now is, shall we admit an exceptional case of the English law to overrule our own decisions ? The rule of the English law has no force here except so far as it commands attention by the sole power of the reasons upon which it rests. We fail to perceive any sufficiently cogent, to authorize the introduction of the rule into Louisiana.

But the Article 4 to the amendments of the Oonstitution of the United States has been cited as having some application to this case. It is well known that the provision in question applies exclusively to the government of the United States, and is a restriction upon the powers of the general government. It is merely the enforcement of a well known rule of the common law carried into the Constitution for the protection of the citizen against the power of the General Government and has no application on a question under the State courts wherein an officer is sought to be made liable civiliter for an error of judgment in the exercise of a power conferred upon him. In the case of Dwight v. Rice, 5 An., 580, it was held that a ministerial officer acting in good faith would not be liable for damages arising from his act although the statute under which he acted should subsequently prove unconstitutional.

To prevent all misapprehension we take occasion to repeat, that we consider the enumerated powers conferred by the Act of 1852 upon the Mayor of Jackson as ministerial, that as such ministerial officer and a conservator of the peace, he had the power to issue a warrant for the arrest of Maguire for selling spirituous liquors without license, and to hold Mm to bail to answer the offence, but that the warrant issued by Hughes was not legal for want of an affidavit to support it; nevertheless, as he acted in good faith in issuing the warrant, he ought not to be held responsible for a mere error of judgment.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the plaintiff and in favor of the defendants, and that the plaintiff pay the costs of both courts.

Spoitokd, J.,

dissenting. M. W. Hughes, Mayor of the town of Jackson and ex officio Justice of the Peace, and N. G. Noswortky, Constable of the town of Jackson, have appealed from a judgment condemning them in solido to pay the plaintiff, John Maguire, forty-five dollars, as damages for an illegal and unwarranted arrest.

Nosworthy justifies himself by alleging that he acted under a warrant issued by a magistrate of competent authority and having jurisdiction in the premises.

Hughes pleads a similar defence, and urges that his conduct was legal, and if defective in any respect, that his good faith in the discharge of an official duty protects him.

Upon Noswortky’s defence it is only necessary to inquire whether the Mayor Hughes had jurisdiction to issue a warrant to arrest Maguire for an alleged offence against law. Eor, in executing the warrant, it appears that the resistance of the plaintiff made it necessary to use the violence which is charged upon him as an aggravation of a wrongful arrest.

•By the Act of April 2d, 1832, incorporating the town of Jackson, it was provided that a Mayor should be chosen by the qualified voters of the said town, (sec. 3), and that the said Mayor should be ex officio a Justice of the Peace within the limits of the town, and should be commissioned accordingly, with power to suppress all riots, routs, affrays, tumultuous assemblies, and all breaches of the peace, and arrest offenders in the same way and manner as Justices of the Peace may or can do.” (Sec. 4, No. 4).

Hughes was duly elected and commissioned as Mayor of the town of Jackson and ex officio Justice of the Peace. While holding such a commission from the Governor of the State, in the month of February, 1855, he issued the warrant in question, commanding Noswoiihy, the Constable, to arrest the plaintiff on a charge of violating the laws of the State by selling spirituous liquors, &c.

The plaintiff now contends that the Mayor of Jackson had no authority whatever to issue warrants of arrest for an infraction of the laws of the State, and no powers as a peace officer or committing magistrate, although such powers were expressly conferred upon him by the Act incorporating the town of Jackson.

The case of Lafon v. Dufrocq, 9 An., 352, is relied on as authority for this position. ,

The analogy is not perfect; that was the case of a civil suit for the recovery of a fine; and it was decided that the Mayor of Baton Rouge, since the Constitution of 1845, was without judicial power to entertain such an action.

The power here exercised of a peace officer and examining magistrate, is not strictly judicial, but rather ministerial or administrative; a Justice of the Peace acts judicially when he convicts and sentences an offender, or gives judgment for a sum of money; ministerially, in preserving the peace, hearing charges against offenders, issuing summonses or warrants, examining the informant and his witnesses, bailing the supposed offender or committing him for trial, &c. 1 Chit., Black., p. 354, No. 31.

So far at least as these latter duties are concerned, I am of the opinion that the Mayor of Jackson has not been stripped of the powers specially conferred upon him by the Act of 1832, in consequence of the adoption of the Constitution of 1852, and if the case of Lafon v. Dufrocq is inconsistent with this conclusion, I think, it should be, so far, overruled

When the Constitution of 1852 declared that the judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace,” (Art. 61) it did not restrain the Legislature from conferring upon the Mayors of towns the usual police and ministerial powers of Justices of the Peace.”

The Legislature may not make them Judges, or invest them with jurisdiction to try civil causes, or to pass finally upon alleged offences, but they may properly be clothed with the attributes of committing magistrates, and all such provisional powers as will enable them to preserve the good order and police of their respective towns. They are not Judges, but quasi Justices of the Peace, having their ministerial but not their judicial powers.

The power given by the Act of April 2d, 1832, to the Mayor of the town of Jackson to arrest offenders in the same way and manner as Justices of the Peace may do,” was not, in my opinion, impaired by the Constitutions either of 1845 or 1852.

It was for an imputed offence against a State law that Mayor Hughes issued his warrant to arrest the plaintiff. As he had power and authority vested in him .by law to issue such a warrant, it follows by a well settled rule that the Constable acting under it in good faith, without notice of the Mayor’s error, is protected, and we therefore think that the judgment against Nosworthy should be reversed.

But the Mayor was only empowered by the statute to “ arrest offenders in the same way and manner as Justices of the Peace may or can do.” He was bound to proceed in issuing his warrant, as a Justice of the Peace is bound to proceed, and, this being a ministerial proceeding, a Justice of the Peace would be civilly responsible for wilfully doing it contrary to law. As a Judge, a Justice of the Peace is not responsible civilly for deciding against the law; as a committing magistrate, he is civilly responsible for acting against the law.

Now, unless a magistrate acts super visum on his own positive and personal knowledge, or upon the confession of the party in his presence, he cannot lawfully issue a warrant of arrest without an affidavit accusing the party; and if he thus issues a warrant, without an oath of facts or circumstances raising a presumption of guilt, he is liable to an action in damages by the aggrieved party, for acting illegally in his ministerial capacity. See 1 East. Pleas Crown, 64; 2 Term R., 225; 2 Wils., 168; Hawkins P. C., b. 2, c. 13, s. 18; Justice v. Gosling, 8 Eng. Law et Eq. R., 475; Taylor v. Alexander, 6 Ham., 144; See also Armstrong v. Campbell, 2 Brevard, 259; Wallsworth v. McCullough, 10 John., 93; Fluck v. Harrington, Breese, 165; Pratt v. Hill, 16 Barb., 303; Kennedy v. Terrel, Hardin, 490; Poulk v. Slocum, 3 Black, 421; Miller v. Grice, 2 Rich., 27, and the American cases generally upon this topic. '

It is to be remarked in the present case, that Mayor Hughes was not acting under a town ordinance; he was acting under the statute incorporating the town, which authorized him to arrest offenders just as Justices of the Peace might do, and he procured the arrest of the plaintiff for the alleged violation of a State law. An ordinance of the town declared that “ when he may know, or information is given by others, of the laws of the corporation having been violated, he shall immediately issue a writ,” &c., &c.

It is perhaps unnecessary to consider whether this town ordinance enlarged his discretion, because he was not acting under it.

So we have the naked question left, can the Mayor of Jackson, acting as a committing magistrate under the State law, order the arrest of any person in the town of Jackson for an imputed violation of the criminal law of the State without view, without confession, and without an information laid before him under oath?

I think he cannot, and that if he does so, he does it at his peril, and that, in case it turns out that there is no foundation for the imputed charge, the Mayor is responsible for the trespass to the party aggrieved. This doctrine with regard to the liability of peace magistrates for their ministerial action has been long and finally settled by the highest authorities in England and America, a few of which have been already cited. But it does not derive its whole or even its main support from arbitrary precedent. It is founded upon a wise forecast and has for its policy no less noble an end than to secure the personal liberty of the citizen from wanton infringement. Somebody must be held responsible for so grave an injury as the arrest of an unoffending citizen. When there is an information under oath, the magistrate is protected, but the party aggrieved has his remedy against the malicious informant. But if a magistrate, without view, without a confession of the party, acting upon an unsworn statement whispered in his ear by some unseen informer, may arrest an innocent citizen for any imputed crime and then escape responsibility under his official mantle, where is there a remedy for so atrocious a wrong ? The framers of our composite system of laws, after drawing from Roman, French and Spanish sources, the great body of rules in civil matters, turned to England as the country where personal rights and the true harmony of liberty and law had been better understood than elsewhere. They took thence the great body of our criminal law. It accords with the law of our sister States, wherever the English language is spoken, the rule that a freeman shall not be arrested (unless flagrante delicto) without a previous accusation under oath, is regarded as a sacred shield. Our ancestors, out of abundant caution, amended the Constitution of the United States to declare that “ no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the persons to be seized.” Amendments, Article IV.

And I do not think that the Mayor of the town of Jackson has any greater power than other committing magistrates. It would require something more than a town ordinance to make such an innovation upon the law.

Entertaining these opinions, I cannot join my colleagues in repudiating the time-honored distinction between the civil liability of magistrates when acting judicially, and their liability when acting ministerially. I do not think it was ever repudiated before in Louisiana.

In matters affecting _ the personal liberty of the citizen, I prefer to stand upon the ancient ways.

After reading the record, I am satisfied that the Mayor of the town of Jackson, in this instance, issued a process not according to law, but without such an information as the law requires; that there was no probable cause for the arrest, nor indeed does it seem to have been pretended upon the trial that there was any; and that the Mayor acted heedlessly and wilfully in arresting a citizen without disclosing any source of information, and without an accusation under oath. The bare fact that he is a committing magistrate does not furnish him a legal justification.

For this conduct, I think he is responsible in damages, as a trespasser. But, under the circumstances, I do not find that the jury of the vicinage erred in assessing damages so small as to be almost nominal.

For these reasons, I think the judgment against Nosworthy should be reversed, and that against Hughes affirmed.


text:
    Jean Baptiste Capdevielle v. Joseph H. Erwin, Sheriff, et als.
    Where an administrator files an account showing a balance due by him to the heir, and asks for its homologation, ho cannot bo hoard to say that the judgment ho himself provoked, is not binding upon him as a judgment, because rendered ex parte.

    The required notices being given, and no opposition being filed to the administrators account, it was competent for the Clerk to render a judgment of homologation.
    An injunction to stay execution upon such judgment, will be dissolved with damages.
    APPEAL from the Sixth District Court of the Parish of Iberville, Beale, J.

      Z. Labauve and E. W. Blake, for plaintiff and appellant.

      J. H. lisle y, E. W. Robertson and Michel, for defendants.
   Spofford, J.

This is an injunction sued out by the plaintiffs to restrain an an execution issued at the instance of Louis E. Landry, upon a judgment homologating the account of the plaintiff, as administrator of the succession of Mrs. Louis E. Landry, for the balance thereon adjudged to be due by the plaintiff to the heir.

The injunction was perpetuated for the sum of four hundred dollars and dissolved, as to the balance, with damages.

• The plaintiff in injunction has appealed. He contends that the judgment of homologation was rendered ex parte by the Clerk, and that no execution can issue thereupon.

It was not, in legal contemplation, ex parte, for the required notices were given. But the party who asked for the homologation of the account showing the balance due by him to the heir, certainly cannot be heard to say that the judgment he himself provoked, is not binding upon him as a judgment, because rendered ex parte.

There being no opposition filed to the plaintiff’s account, it was competent for the Clerk to render such a judgment as he has rendered. Acts of 1855, p. 50, sec. 4; Constitution, Art. 76.

The'plaintiff in injunction is precluded from denying that the defendant Louis E. Landry, was the person entitled to claim the benefit of the judgment of homologation liquidating the balance due to the heir.

The estate of Mrs. Landry, administered by the plaintiff, was not vacant; he was appointed administrator, not curator; the heir was present; a minor whom the law made heir with benefit of an inventory. The plaintiff, in his official capacity, recognized the minor child of the deceased and Louis E. Landry, her husband, as sole heir to the deceased, and had a tutor ad hoc appointed to represent the child in the mortuary proceedings. Pending those proceedings, the child died, and the father thus became heir to the whole succession. This appears from the papers filed in his quality as administrator by the plaintiff himself. Moreover, the present injunction is based mainly upon the allegation that Louis E. Landry jvas the sole heir, and had settled with the plaintiff as administrator, by giving him a discharge in full for the balance now in controversy. Under these circumstances, the plaintiff cannot be heard to urge that Louis E. Landry has not been recognized as heir, and was without authority to take out execution for the balance adjudged to be due upon the administrator’s own showing.

As to the alleged settlement and discharge, it is clearly shown that the plaintiff paid Landry only $400, upon a claim exceeding $1,800, and took a receipt in full from him at a time when he was so intoxicated as to be incapable of making a valid contract.

Landry acknowledges the correctness of the judgment perpetuating the injunction to the extent of $400, but, in this court, he has filed an answer praying damages as for a frivolous appeal.

As the District Judge awarded damages upon the dissolution of the injunction and the delay has been very short, we do not feel called upon to grant the appel - lee’s prayer.

Judgment affirmed.


author: Merrick, 0. J. Spoeeord, J.

text:
    State v. John C. Wilson.
    If tlio transcript of appeal be imperfect from omissions of tile Cleric whose certificate is fall, it is the duty of the appollees to have the correction made by a certiorari, otherwise the appellate court will act upon it as a complete record and reverse the judgment of the court below, if it does not appear to be justified by the documents and evidence contained in the transcript.
    APPEAL from the Sixth District Court of the Parish of Iberville, Seale, J.

      Duncan Stuart, for the State.

      Zenon Labauve, for defendants and appellants.
   Merrick, 0. J.

Outside of the record we know that this case was before us last year and was remanded for a new trial. The second trial also resulted in a judgment against the sureties of Wilson, and they have appealed.

The judgment of the lower court cannot be maintained without reference to the transcript filed on the former appeal and considering orders which were not offered in evidence on the last trial, we think it would be countenancing a mode of practice much too loose to make such reference. The rights of parties should in general be determined on the record as certified and presented to us. If it be imperfect from omissions, the appellees can always have it corrected by a certiorari. Looking to the record alone, the case appears to be presented here for the first time.

It does not appear by the present transcript that there was any order given to the Sheriff to take the appearance bond of the accused. Neither is the opinion and former decree of this court in the record or any evidence to stop the defendant from making the point de novo.

Where procedings are conducted with so much negligence we will not remand a second time for a new trial but will at once render a judgment of nonsuit.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court as to the said Matthew Marr, Charles F. Stubbs, and Henry Keller, be avoided and reversed and that there be judgment in favor of said defendants as in case of nonsuit.

Spoeeord, J.

dissenting. As stated by the Ohief Justice, this case was formerly before us and was remanded for a new trial. On that occasion, we were called upon to decide whether the order given by the district judge to admit the accused to bail was sufficient; we held it was, but the bond not being in evidence, the cause was remanded for a new trial on that account. See opinion book. A new trial has been had, and the sureties have again appealed; but they have chosen to bring up an impefeet record omitting nearly all the documents and orders which we know were contained in the former record. Besides, the fact is patent upon this recorcd, that it is imperfect.

These sureties brought up the appeal and should have brought a complete transcript. It is their fault that it is incomplete, and they should not, in my opinion, profit by'their fault; we know that the Clerk’s certificate is a mistake, that there was a sufficient order admitting the party to bail, which has been left out of the record.

I think we should dismiss the appeal ex officio. See Harris v. Hays, 8 An. 433.


text:
    P. J. Cockburn v. Union Bank of Louisiana.
    A stockholder in a corporation has a right to access to the proper sources of knowledge to know how the affairs of the corporation are conducted. If his rights are not restricted, in that respect, by their charter or rules and by-laws passed in conformity thereto, a stockholder in a Banking Company has a right to the inspection of tho “ discount book ” of the Bank, within proper and reasonable hours.
    If the right is denied a 'numdamus is the proper remedy.
    ÁPPEAL from the Fourth District Oourt of New Orleans, Price, J.

      Semmes Labatt, for plaintiff and appellant.

      Benjamin, Bradford & Finney, for defendant.
   Cole, J.

This is a petition by the plaintiff, as a stockholder of the Union Banlc, for a mandamus to compel the officers thereof to allow him the right of inspecting the “ discount book ” of the bank, within proper and reasonable hours, which right had been denied him on due demand.

Petitioner alleges, that he is a citizen of the State and the owner of one hundred and ten shares of the capital stock of the bank, which is established under the Free Banking laws of this State; that for purposes “ material to the interests of himself and other stockholders, and also the interests of said banking company, and of the public, he is desirous of examining the discount book of said banking company; that among other objects in view, be is desirous of ascertaining, by an examination of said book, to whom and in what manner loans or discounts have been made by said banking company, and on what security or endorsements, and whether said loans and discounts have been made in conformity to, or in violation of the free banking law of this State, or the rules and by-laws of said banking company.”

The amended petition avers, “ that petitioner, as a stockholder of the bank, has, in common with the other stockholders, a right of property in the books of the bank, and that all the stockholders of said bank are legally entitled to inspect the books thereof, and the refusal to permit petitioner, or any other stockholder, to inspect said discount book, may not only endanger the interests of the public, but also the interests of petitioner as a stockholder, as well as those of all other stockholders ; the enjoyment of said right being- necessary to enable petitioner, and other stockholders, to prevent mismanagement on the part of the directors and officers of the bank, and to correct any act of mismanagement by a removal of the director or directors guilty of mismanagement at any ensuing election.”

The defendant filed an exception that the petition disclosed no cause of action, nor legal ground for the issue of a mandamus. This exception was sustained by the Judge a quo, and the rule taken by petitioner was discharged with costs.

We will examine the case at bar in three points of view :

1.Has petitioner a sufficient interest to justify his action ?

2.Has he the general right which he claims ?

3.Can this right, if he has it, be enforced by mandamus ?

It is evidently his interest, as a stockholder, to have the business of the bank properly conducted. If loans are made on an insecure basis, or- on securities reprobated by law, his interests will eventually suffer. It is impossible for him to allege that his interests have already been affected injuriously, because he has been deprived of the source of this knowledge.

Has he the general right which is demanded ? Defendant avers, that by the charter of the Union Bank, and the laws applicable thereto, the entire management of its affairs and the control of its books and property are confided to a board of directors, who administer the same, and have the right of deciding when, by whom and for what purpose the said books shall be inspected, except in cases specially provided for by law, and that petitioner has in law no right to demand at his pleasure the inspection of the books specially referred to and designated in his petition as the discount book of said bank. If the board of directors have the exclusive right alleged to exist in them, they must derive the power and prerogative from the Free Banking laws of the State, or the charter or notarial act containing the agreement by which this bank was created, or from the rules and by-laws of the bank; defendant has not, however, called our attention to any Act of the Legislature, to any part of the charter of the bank or to any of its rules or by-laws which confer such exclusive authority upon the board of directors, and we are not aware of the grant of any such prerogative exclusively to the board of directors.

A stockholder in a corporation possesses all his individual rights, except so far as he is deprived of them by the charter or the law of the land; as long then as the charter or the rules and by-laws, passed in conformity thereto, and the law, do not restrict his individual rights, he possesses them in full and can demand to exercise them. It cannot be denied that it is the right of every one to see that his property is well managed and to have access to the proper sources of knowledge in this respect.

According to our present laws, any number of individuals, by following certain regulations prescribed by statute, can organize themselves into a corporation ; if they were not incorporated, they would be partners inter-se, and as such enjoy all the rights of partners. It must be granted that every partner has the right to inspect the books of the partnership, and the mere fact of incorporation cannot destroy that right, unless it is taken away by some provision of the charter, or some law or by-law of the corporation.

In the case of Purton v. The Carrolton Railroad, 3 An. 30, the court says that, Corporations are to be treated with reference to the objects of their creation and to the express powers with which the Legislature may have invested them ; to that extent the general law of partnership is superseded by the charter.” Again, in the same case, “ The extent of the power given to corporations in authorizing them to make by-laws, is not accurately defined, but the effect of the power, when properly exercised, is that stockholders are bound by a set of provisions and rules beyond those actually contained in the charter, and as far as they extend, they also supersede the general law of partnership.”

The right claimed does not clash with the objects for which the bank was created. The unseasonable and unusual exercise of the right might be inconvenient and troublesome, but that abuse might be remedied by proper by-laws. It is urged that the Act of the Legislature, approved 24th February, 1842, which declares that it shall be lawftd for1 any stockholder, at any time during business hours, to examine and take copies from the stock ledger of any bank, etc., confines the right of a stockholder to an examination of the stock ledger alone ; on the principle of expressio unius est exclusio alterms. This law was passed in February, 1842, previously to the decision in thn case of Hatch v. The City Bank of New Orleans, which took place in March, 1842, but subsequently to the decision of Judge Watts, in the court below. It was evidently enacted with relation to that controversy, and merely declared the will of the Legislature on the point in that case, which was the right of inspecting the stock ledger. If the Legislature had granted the right to the stockholders at any time during business hours ” to examine any other books of the bank, it might have interfered with the right of the bank to prescribe rules on the subject, and such unrestricted right of examination would, probably, be productive of inconvenience.

The principle “ expressio unius est exclusio alterius,” cannot be applied when a party already enjoys by law a right; for in such a case the exercise of the right must be prohibited by the repeal of the law granting it.

That principle applies often when there is no law granting a certain privilege ; then a special statute conferring particular powers may be deemed an exclusion of all others. As in the case at bar, the stockholder has the right claimed ; the declaration by the Legislature that he has another and distinct right does not deprive him of that which is accorded by other laws.

Can this right be enforced by mandamus ? It is not sufficient to deprive petitioner of this remedy, because he may have another specific legal remedy, viz : a suit for damages. A suit of this character might last for a long time and petitioner suffer great loss by being debarred from an examination of the discount books. Judge Martin, in the case of Hatch, says : “ There is not any difference, in my opinion, between a case in which no remedy is provided, and that in which the remedy is absolutely useless or extremely inadequate. The right claimed is of such a nature that, to be of any value, it must be promptly enforced. It is not susceptible of any but the most capricious measure of damages. The slowness of legal forms, if any other remedy than the writ of mandamus were resorted to, is such that the public good would suffer from the delay. The provisions of our law, in this respect, are in accordance with those of the common law, which the counsel for the appellants has invoked. It is laid down by Lord Mansfield, that in order to exclude the writ of mandamus, remedy by other means must be adequate, or must afford specific, or what in the case is equivalent to specific relief. Damages cannot be said to be specific relief, for the refusal of leave to inspect books.”

We are of opinion that a mandamus is the proper remedy in the present case. If petitioner has the right of examining the discount books, he cannot be deprived of this right by the substitution of damages. He does not ask for damages, but for the exercise of a right. If he has the right, he ought to have the exercise of it as soon as possible; for the deprivation of his right cannot, perhaps, be accurately estimated in damages. It may be many years before the amount of the damage can be known. In ordinary cases it would not be a sufficient reason for a mandamus that the party could obtain thereby a quicker remedy for his wrong, because his damages can be well ascertained, but in the case at bar the loss that may result from the non-examination of the discount books cannot be accurately nor soon known.

The case of Hatch v. The City Bank, 1 R. 470, cannot be considered as a decisive authority against our view of the case, because it was the opinion of two judges and not of the majority of the court; Judge Simon was absent from ill health; Morphy, J., being interested, did not sit on the trial of the case, and Judge Martin dissented; so that the opinion was that of but two judges, Garland and Bullard. Vide Wordsworth on Joint Stock Companies, p. 86-7; Collyer on Part. p. 115 and 644; 5 Mason, 176; Bacon v. Robertson, 18 How. S. C. U. S. R. 483; C. C. 437; 1 Blackstone Com. 472; Smith v. McMicken, 3 An. 322; Bank of Mobile v. Harris, 5 An. 538; C. C. 426, 427; 3 Burrow R. p. 1265; Bisset on Partnership, p. 289; 10 Wend. 393; 12 Wend, 183; 9 La. 329; Kendall v. The United States, 12 Pet. p. 615; Sessions Acts of 1855.

It is objected that the interests of the public in the faithful administration of the bank are protected by the Board of Currency and Committees of the Legislature. These do not, however, deprive petitioner of the privilege of supervising his own interests ; he is not bound to depend on the fidelity of public agents for the protection of his rights.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed ; that the exception be overruled; that this cause be remanded to be tried on its merits, and that appellee pay the costs of appeal.


text:
    H. Pargoud v. P. M. Tourne.

      A landlord is not responsible in damages to bis lessee, arising from tlie illegal conduct of an adjoining proprietor, in constructing a privy against the intervening wall when it appears that the wall was fit and sufficient for the purpose designed. The Article of the Code applies, when there are vices and defects in the thing leased—he is not bound to guarantee against losses that happen from the nature of the wall, and the illegal conduct of the adjoining proprietor.
    When the lease was entered into, the lessor was not obliged to suppose that his neighbor would violate the law, and, therefore, it cannot be considered that a warranty against his illegal acts formed a tacit condition of the contract of lease.
    All that is required of the lessor is to have a wall, staunch and sufficient for the purpose for which it is intended : he is not required to have a wall capable of protecting the lessee against the unlawful acts of the contiguous proprietor.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      H. Griffin, attorney for plaintiff and appellant.

      Mott If Fraser, attorneys for defendant.
   Cole, J.

The plaintiff claims from the defendant $442 50, rent of a warehouse. The latter reconvenes and demands $338 70, amount of damages caused to his goods by the sinks of the adjoining property, belonging to the Bank of Louisiana. The district judge allowed j$263 70, on the reconventional demand, and plaintiff has appealed.

The evidence establishes that the privies were on the property of the Bank of Louisiana : that they were built too close to the wall of the warehouse; that they had overflowed and the liquid matter oozing through the dividing wall had injured some of the merchandise of defendant; that this wall is “ good and appears well built; ” that the privies were subsequently removed further from the wall.

The sole question is whether defendant, who was the lessee, has a right of action for the damages against plaintiff, the lessor.

Article 688 of the Civil Code declares that, “ he who wishes to dig a well or a necessary, to build a chimney, or hearth, a forge, an oven, a furnace or stable, to put up shelves, or to store salt or other corrosive substances near a wall, whether held in common or not, is bound to leave the distance, and cause to be made the works prescribed by the regulations of the police, in order that his neighbor be not injured thereby.”

Art. 691, C. C., provides that: “ He who wishes to dig a necessary or a well against a wall, whether held in common or not, is bound to build another wall one foot thick; and when there is a well on one side and a necessary on the other, there shall be four feet masonry betwixt the two, including the thickness on both sides; but between two wells three feet interval are sufficient.”

It appears from these Articles that the obligation to construct the privy so as not injure his neighbor was upon the proprietor of the property contiguous to that of plaintiff, and the latter cannot, therefore, be rendered responsible for the neglect of the former to comply with the provisions-of the law relative to privies, unless there is some special law relative to lessors, which makes them liable.

The defendant relies on Article 2665 of the Civil Code. It is in these words:

“ The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used, even in case it should appear that he knew nothing of the existence of such vices and defects at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee ; and if any loss should result to the lessee from the defect, the lessor shall be bound to indemnify him for the same.”

This article applies when there are vices and defects in the thing leased; but there was no vice and defect in the division wall. It was fit and sufficient for the purpose designed, if the proprietor of the'edifice adjacent to that of plaintiff had obeyed the requisitions of the law ; the wall was naturally porous, and such as we suppose is generally constructed. There is, at least in the record, no evidence to establish the contrary, and the lessor was not by this Article bound to guaranty against losses that happened from the nature of the wall and the illegal conduct of the adjoining proprietor. The loss in the case at bar was caused by the oozing of liquid matter through the division wall, which would not have happened if the contiguous proprietor had complied with the law. When the lease was entered into, the lessor was not obliged to suppose that his neighbor would violate the law, and therefore, it cannot be considered that a warranty against his illegal acts formed a tacit condition of the contract of lease ; all that is required of the lessor is to have a wall staunch and sufficient for the purpose for which it is intended ; he is not required to have a wall capable of protecting the lessee against the unlawful acts of the contiguous proprietor. We do not think the lessor is obliged to examine the buildings of adjoining proprietors to see if they have constructed any works which may injure his lessee.

Art. 2673, C. C., declares that, “ the lessor is not bound to guarantee the lessee against disturbance caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”

The damage in this case was not caused by plaintiff, but by a party claiming no right to the premises leased by plaintiff; the latter is not, therefore, responsible. *

Defendant is liable for legal interest on the instalments of the lease from their maturity.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that plaintiff recover of defendant four hundred and forty-two dollars and fifty cents, with five per centum interest on three instalments thereof of $110 each respectively from the maturity of each, to wit: from the 15th February, 15th March and 15lh April of the year 1856, and a like interest on three installments of $37 50 of said $442 50, commencing from the respective maturity of each, to wit: from the 15th July, 15th August and 15th September of thg year 1855.

it is further ordered and decreed, that the reconventional demand of defendant be rejected, and that he pay the costs of both courts, and that his right, if any ho has, be reserved to him to proceed for his reconventional demand against the party or parties who may be liable for the same.


author: Oole, J.

text:
    James Nesom v. Thomas F. D’Armond.
    "Where an obligation was to be paid in several installments, and all tlie installments were due when the debtor made a payment without directing on which installment the credit was to be given—Held: The payment must be deemed to have been made in part satisfaction of the whole debt and prescription on all the installments was thereby interrupted.
    from the Seventh District Court of the Parish of East Feliciana, Ratliff, J.

      Fuqua, fy Kilbourne, for plaintiff and appellee.

      Muse Hardee, ior appellant.
   Oole, J.

At a probate sale of the successions of William, and Malicha Kirby, made on the 4th of May, 1836, William J. Nesom became the purchaser of the slave Julia and her child Letty, for eighteen hundred dollars, payable in three equal annual installments, and bearing ten per cent, interest from maturity till paid, and Thomas F. D’Armond, the present defendant, signed the adjudication as his surety.

This obligation is the basis of the present suit, none of it having been paid, as is alleged, but the three amounts for which credit is given in the petition. There are two issues presented, prescription and payment. The cause was tried by a jury, whose verdict was for plaintiff, and defendant has appealed from the judgment thereon.

The prescription applicable to this claim is ten years, as no notes were taken. C. C. 3508; 3 An. 46.

On the 5th of May, 1847, the first installment would be prescribed, if there had been no interruption of prescription; there were, however, payments made thereon in the following manner :

At the probate sale of William, J. Nesom, the purchaser of said slaves, they ■were adjudicated to James Nesom, the present plaintiff who gave his notes payable on the 13th January, 1846, 1847 and 1848; plaintiff was then the tutor of the Kirby minors, and there was a settlement between him and the administrator of the estate of W. J. Nesom, by which plaintiff’s notes were given up to him to be credited on the indebtedness of the estate of W. J. Nesom to the succession of William and Maliclia Kirby. The credits allowed, correspond with the maturity of the notes of plaintiff; they matured anterior to the acquisition of prescription by defendant’s principal on the notes sued on. It is objected by defendant, that plaintiff in his petition has imputed the payments to the satisfaction alone of the first installment, and has not allowed any portion of the credits to be applied to the payment either of the principal or interest of the two last installments, and that the plea of prescription should prevail, except for the last installment, for although suit No. 638, for the claim now sued on, was brought in March, 1849, yet, as on the 4th of May, 1849, the last installment would have been due ten years, of course, the other two installments, which fell due one and two years earlier, would have been barred by the prescription of ten years, unless the amounts alleged to have been paid interrupted prescription, and admitting that these payments were paid in the manner described, yet they have been by plaintiff imputed to the payment of the first installment, and that, therefore, the second installment is barred by prescription. We are of opinion there is nothing in this objection; it appears that plaintiff has made an error in the petition; that all the installments were due when the payments were made, and the credits ought to have been made on different installments, and suit ought to have been instituted for the three installments subject to these credits, whereas he seems to have considered them as paying the first installment; he alleges, in his brief, he was led into this error by copying, “ word for word,” so much of the petition in suit No. 638 as relates to the amount of the claim, the credits and the balance due, and he asks for an amendment of the judgment, as it causes him to lose near three hundred dollars.

We think that as all the installments were due when the payments were made, and as the debtor did not direct on which installment he wished the credit to be made, that the payments must be deemed to have been made in part satisfaction of the whole debt; and, therefore, they interrupted prescription on all the installments, and an error of plaintiff in the imputation in this petition cannot destroy the effect of the legal imputation.

Defendant pleads payment of the debt sued on; he alleges that he paid it to Thomas Nesom, administrator of the estate of William, and Maliclia Kirby, deceased, on the 21st June, 1840. He has introduced in evidence a receipt, but the signature is denied to be genuine, and defendant has failed to prove it.

We cannot grant the amendment prayed for by appellee} as it would change the pleadings.

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

Merrick, 0. J., recused himself, having been of counsel.


author: Buchanan, J,

text:
    Stephen Girard’s Heirs v. New Orleans et al.
    In a petitory action proof of adverse possession is a necessary part of plaintiffs’ case, because the petitory action can only be maintained against a party in possession.
    An admission of plaintifls’ title, is not sufficient ground upon which to base a judgment against the defendants.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      H. H. Strawbridge, for appellants.

      J. J. Michel, for appellee.
   Buchanan, J,

This is a petitory action for land. The plaintifls allege title in themselves as heirs-at-law of Stephen Girard, deceased, and an adverse possession in the cities of New Orleans and Philadelphia. The defendants severed in their answers ; that of the city of New Orleans being a general denial of all the facts contained in the petition, with the exception of the heirship of plaintiffs, which was admitted. A separate trial was had as against the city of New Orleans, on the admission of heirship contained in the answer, and a further admission that Stephen Girard died in 1831, possessed, in full ownership, of the land claimed in this suit by plaintiffs. No other evidence whatever was offered on either side. The District Court rendered judgment of nonsuit against plaintiffs, from which they appeal.

There is no error in this judgment. The general denial put at issue not only the title of plaintiffs, but the adverse possession of defendants. /The proof of such adverse possession was a necessary "part of plaintiffs’ case, because the petitory action can only be maintained against a party in possession. C. P., Art. 43.

Taking for granted, therefore, that the admissions above mentioned dispensed with proof of plaintiffs’ title to the land mentioned in the petition, yet something more was necessary to be established, before the plaintiffs could have judgment against the appellee (the city of New Orleans,) for the land. There is not only no proof connecting the city of New Orleans with the land claimed, but no offer of such proof.

The admission of plaintiffs’ title has thus the form of an abstract.proposition, leading to no practical consequences; and least of all, to a judgment against the party making the admission.^ It would be hard, if I should be held liable for all the property of which I woiild admit that the title was not in myself.

Judgment affirmed, with costs.


author: Spokford, J.

text:
    Nathan C. Folger v. Widow Pierre Rouanet et al.
    Where one alone of several defendants appeals from the judgment in favor of the plaintiff, the appeal will be dismissed, unless the appellant makes his co-defendants, who were necessary parties in the court below, parties to the appeal.
    APPEAL from the Third District Court of the Parish of Jefferson, Burthe, J.

      Beatty Bush, for plaintiff.

      Michel § Koontz, for defendants and appellants.
   Spokford, J.

The plaintiff having obtained a judgment against Alice Pellegrien, brought this action to annul a donation alleged to have been made by her in fraud of his rights to her daughter, Mrs. Hunter, her grand-daughter, Mrs. Galabert, and her grand-son, W. P. N. Hunt; also for a judgment in solido against those parties for the amount of his claim against Alice Pellegrien, to the extent of the value of such of the property donated by her to them, as had gone into the hands of third parties.

The plaintiff had judgment against all those defendants as prayed for.

Mrs. Hunter alone has appealed, and has not made her co-defendants parties to the appeal.

The plaintiff moves to dismiss on this ground.

If the co-defendants were necessary parties below, as it seems from the nature of the donation and the partition had under it they were, they are necessary parties here. See Duggan v. De Lizardi, 5 Rob. 225; Armstrong v. His Creditors, 8 An. 368; Robert v. Ride, II An. 409. If the other defendants acquiesce in the judgment, they have an interest in maintaining it against Mrs. Hunter, to lessen the amount of their contribution to the plaintiff’s claim.

Appeal dismissed.


text:
    The State v. Oscar, a Slave.
    Tho Act “relativa to slaves,” approved March 19th, 1857, does not require a preliminary examination of slaves, charged under oath with crime.
    The Supreme Court is without juris liction to fix a day for the execution of convicts.
    Tho linn of the execution is not an essential part of the judgment.
    It is the duty of tho Sheriff to exocute the sontence, even after tho day fixed has lapsed by reason of an appeal, and in caso of his failure, the Executive of the State, bound by the Constitution to seethe laws faithfully executed, would cause the legal execution of the convict.
    from the Fifth Justice’s Court of Jefferson, Bisbee and Michel, Justices of the Peace.

      W. T. Scott, District Attorney, for the State.

      Magne, for appellant.
   Spofford, J.

The accused, a slave, having been convicted and sentenced for a capital offence, has appealed.

There is but a single bill of exceptions in the record.

On the day fixed for his trial, of which his master had previous notice, the prisoner appeared by counsel, and objected to going to trial, contending that the case should go on only as a preliminary examination.

There was no error in overruling the objection.

Section 18 of the Act “ relative to slaves,” approved March 19th, 1857 (page 231), declares that: “Whenever a slave shall be accused of a crime or offence, by any person, on oath, the Justice of the Peace, or other committing Magistrate, before whom the complaint is made, shall cause the slave accused to be arrested and confined in the parish jail to await his trial.”

There was, in the present case, an accusation under oath, and a commitment to await the trial, as well as due notice to the master.

The attempt on the part of the prisoner’s counsel to convert the trial into a mere preliminary examination, was unwarranted by law.

It is suggested that the day fixed by sentence for the execution has passed. What relief the appellant’s counsel expects at our hands for this cause, we are not apprised; for he asserts, himself, that the power to fix the day of execution is lodged with the Governor. It is settled by an authority cited on behalf of the appellant, that this court is without jurisdiction to fix a day for the execution of convicts. State v. Jerry, 3 An. 577. It has been declared to be the duty of the Sheriff to execute the sentence even after the day fixed has lapsed by reason of an appeal, and, in case of his failure, that the Executive of the State, bound by the Constitution to see the laws faithfully executed, would cause the legal execution of the convict. McDowell v. Couch, 6 An. 370. The time of execution is notan essential part of the judgment. Ib.; 4 Black. Com. 404. And if the Justices of the Peace erred in fixing a day, as the appellant contends, that cannot vitiate the sentence of death.

Judgment affirmed.