author: Mekbick, C. J.

text:
    J. P. Elam, Tutor, et al., v. The Heirs of A. S. Barr, deceased, et al.
    The Code of Practice, in prescribing the conditions upon which an attachment may issue, requires an oath of the existence of the debt in a form, to exclude the exceptions of payment, compensation, &c., and a compliance with its requirements is equivalent to an averment that the debt has not been so extinguished.
    XX PPEAL from the District Court of the parish of Catahoula, Barry, J.

      Mayo, for plaintiffs and appellants. Taliaferro, for defendants.
   Mekbick, C. J.

The present is a suit against the sureties on a tutor’s bond. It was commenced, as to a part of the defendants, by attachment. The attachment was dissolved, and the action dismissed, not only as to the absentees, but also as to those who had been cited, and the plaintiffs have appealed.

We think the judgment of the lower court ought to be affirmed as to the absent defendant. The plaintiffs have not sworn with sufficient certainty to the indebtedness of the defendants to entitle them to the harsh remedy of the attachment. The absentees are the heirs of A. 8. Barr, deceased, who was one of the sureties of Glenn. Glenn’s estate was administered by the Clerk of the court as a succession under five hundred dollars in value, and the plaintiffs allege that they have obtained judgment against the said Clerk as such administrator of Glenn. The indebtedness of the defendants is alleged in the affidavit in these words, (it being the substance of the allegations of the petition, which are also sworn to,) viz: “ That they have obtained judgment against the legal representatives of Samuel Glenn for the sums set forth in the foregoing petition, as due them respectively, for which they verily believe the heirs of A. 8. Barr, whose names are set forth in the foregoing petition, are liable.”

The Code of Practice, in prescribing the conditions upon which an attachment may issue, requires something more than the prima faeie allegations which suffice for the petition itself and a judgment thereon. It requires an oath of the existence of the debt in a form to exclude the exceptions of payment, compensation, &c., and a compliance with its requirement is equivalent to an averment that the debt has not been so extinguished — that it still exists. If we look to the averments of the petition, we find them in such form that we might, if they were substantiated by proof, render a judgment thereon; we might infer that the judgment was regularly obtained against Glenn's succession, and that, when produced against Bwrr's succession, it would be prima faeie proof of the extent of the liability of the surety. But it is not positively sworn to that the heirs of the surety are liable for that amount. Notwithstanding the mere opinion of the plaintiffs, the absent defendant may not be bound to the extent of the judgment against the principal: they may be entitled to a division, or there may have been payments. The plaintiffs, before they can resort to an attachment, must assure themselves that the defendants are indebted to them, and they must state the amount of such indebtedness. The attachment was, therefore, properly dissolved.

But as it respects the exception, relied on by the parties cited, that the suit was prematurely brought, we are of the opinion that the plaintiffs have substantially complied with the requirements of the Act of 1842. It is evident that no further pursuit of the demand against the succession of the principal debtor would be availing. The necessary steps, therefore, have been.taken to enforce payment against the principal. We see no error in the reception of the parol proof to establish the insolvency of Samuel Glenn's succession.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment as to the said Sarah Davis, wife of Moses Davis, Martha Hollis, wife of Henry Hollis, Lewis G. Barr, and Mary Hudson, and James G. Taliaferro, be affirmed; that as to the other defendants, the judgment be avoided and reversed, and the,exception overruled, and the cause remanded, to be proceeded in according to law, and that said last named defendants pay the costs of the appeal.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    The Liverpool and London Fire and Life Insurance Company v. Ephraim C. Hunt.
    A person having effected insurance with a company in its corporate capacity, and having received from it payments made under the supposed obligation growing out of that contract, will not be permitted to deny the corporate existencetof said company, when sued by it for the restitution of the money thus paid.
    -£L PPEAL from the District Oourt of the parish of Oaddo.

      Winans, for plaintiff. Landrum & Williamson, for defendant and appellant.
   Lea, J.

The defendant in this case having effected an insurance with the plaintiff in its corporate capacity, and having received from said plaintiff $2000, in virtue of the supposed allegation growing out of the contract, cannot, in a suit brought against him for the restitution of the amount thus paid, be permitted to deny the corporate existence of the company with which he has dealt. So far as relates to the subject-matter in litigation, and the transaction out of which it arises, the defendant must be considered as concluded by his acts in the premises.

Upon the merits, we find nothing in the evidence which would justify us in disturbing the judgment appealed from. The Judge a quo appears to have made a liberal deduction upon the plaintiff’s demand, as an indemnity for the actual loss sustained by the defendant. No greater sum could have been allowed under the evidence without violating the stipulations of the contract.

The plaintiff’s counsel has asked, in his brief, for an amendment of the judgment by the rejection of the whole of the defendant’s claim, as having been forfeited in accordance with the terms of the policy, by his exaggerated and fraudulent representation of the loss sustained by him.

We cannot inquire into the merits of this branch of the case, as the plaintiff has not joined in the appeal or filed any answer praying for an amendment of the judgment.

Judgment affirmed.


author: Spoeeobd, J.

text:
    J. H. Lengsfield v. Thomas W. Jones.
    When a person receives a shipment of cotton, and gives a bill of lading in the ordinary form, h© becomes liable as a common carrier.
    The fact that plaintiff inspected the boats before the shipment does not exempt the carrier from liability for a loss occasioned by the unseaworthiness of the vessel.
    Ü PPEAL from the District Court of the parish of Caddo, Land,, J.

      Williamson & Austin, for plaintiff. Jones and Beall, for defendant and appellant.
   Spoeeobd, J.

This is an action for damages alleged to have been done to fifty bales of cotton shipped by plaintiff on a certain flatboat, belonging to the defendant, for transportation from Shreveport to New Orleans.

The plaintiff, who sued for $2,146 92, had a verdict and judgment for $580. The defendant has appealed, and the plaintiff, in his answer, prays for an increase of the judgment to the amount claimed in his petition.

There has been some discussion upon th^ question whether the defendant, Jones, was a common carrier’. There is no proof upon this point except the contract of the parties, which is evidenced, as to most of the cotton shipped, by bills of lading in the common form, by which the defendant acknowledged to have received the cotton in good condition, and undertook to deliver it at New Orleans in like good order, at a specified rate of freight, the dangers of the navigation alone excepted.”

It seems, also, that Rod River, at the time of the shipment, was extremely low, and that steamboat navigation was suspended. It also appears that the defendant built several fiatboats, upon which he undertook to transport the cotton, and that he took cotton for other parties than the plaintiff.

If he wished to exempt himself from the law of common carriers, he should have made a special contract to that effect, instead of giving, bills of lading in the ordinary form. Moreover, his original answer to the petition would seem to imply an admission of his liability as a common carrier, for he there averred that the damage, if any, was occasioned “ by the accidental and unavoidable sinking of the boat on which it was shipped.”

A serious damage having been fully proven, the burden was on the defendant to show that it occurred through one of the excepted perils.

The proof, on the contrary is clear, that his fiatboats were unseaworthy. The one upon which the plaintiff’s cotton was shipped was so leaky as to require constant pumping from the commencement of the voyage. She was insufficiently manned, and during every night the water gained rapidly, so that the lower lino of the cotton, (which belonged to the plaintiff,) was kept constantly standing in water, at various depths, during the tedious voyage from Shreveport to a bar above Grand Ecore, where the boat sunk. We are setisfied that the unscaworthiness of the flatboat was the real cause of much of the damage.

But it is urged that the plaintiff inspected the boats before he shipped the cotton, and therefore took the risk of their seaworthiness upon himself. The contract of the parties does not so read, and the plaintiff might well have run the risk even of a doubtful experiment, if he had confidence in the defendant’s guaranty against everything but the perils of the river.

It is urged that the defendant has waived his claim to damages, because, after the flat-boat sunk, and the plaintiff made his protest, he sent an agent down to the bar, who received the damaged cotton from the plaintiff, and paid him $100 salvage, without which he refused to deliver the cotton.

The defendant acknowledged by letter to the plaintiff his inability to fullfil his contract. He did not, as he had undertaken to do, deliver the property to the consignees in New Orleans, but, after sinking his boat, abandoned the voyage.

We do not perceive that the conduct of the plaintiff, in sending an agent to save what he could from the wreck, assented to as it was by the defendant, was an implied waiver of the action in damages, and it is not pretended that there was any express waiver.

As to the amount of damages done to the cotton, only the injury received up to the time the plaintiff’s agent took it into possession should be considered. Upon that subject the evidence is somewhat conflicting. Under such circumstances we do not interfere with the verdict of a jury selected by the parties, except for flagrant error. We find no such error in the estimate made by the jury in this case.

Finally, it is contended that there was error in the judgment, which allows legal interest from the date of the verdict, when the verdict is silent as to interest. The error, if error it be, is too trifling to attract attention here, when it appears that no effort was made to procure an amendment below.

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


text:
    J. Eager v. George A. J. Brown.
    Where the notaTy having no knowledge of the residence of the drawer, made enquiry on the sub* ject, of the acceptor’s factor, (who was also factor of the drawer,) and received for answer, that the drawer lived at F., for which place he mailed notices of the day of the protest, addressed to the drawer; and, a few days after, having received other information in relation to the drawer’s residence, dispatched another notice to the place designated. Held,: That the notary used such reasonable diligence as to excuse the want of notice.
    APPEAL from the District Court of the parish of Ouachita, Richardson, J.

      McGuire & Ray, for plaintiff. Lltdeling, for defendant and appellant.
   Lea, J.

In this sase, the defendant seeks to escape liability upon a protested draft, of which he is the drawer, on the ground that he has been released by the laches of the holder in not giving him notice of non-payment.

The notary’s deputy, whose testimony was properly received, testifies, that he had no knowledge of the residence of the defendant, that he made inquiries on the subject of the acceptors, who, it appears, were also the defendant’s factors, and received for answer that the defendant resided at Farmersville, the seat of justice for the parish of Union, in Louisiana, for which place notices were mailed on the day of the protest, addressed to the defendant. Thus the notary appears to have made inquiries with reference to the residence of the drawer, from those who might be supposed most competent to give it, and from them he received unequivocal information, upon which he acted with all proper dilligence and despatch. A few days afterwards, having received other information with. reference to the drawer's residence, he dispatched another notice to the place designated. We think, under the circumstances of tne case, that assuming the notary to have been misled by the information obtained from the acceptors, such reasonable diligence was used as to excuse the want of notice. See Ledoux v. Morgan, 3d Ann. 545; also, Story on Bills, § 299.

This view of the case, makes it unnecessary to examine the other points presented in the briefs of counsel.

Judgment affirmed.


author: Merrick, C. J.

text:
    State v. James Evans.
    Where no term of the court was held at Monroe, in October, 1855, though the record of an appeal was returnable at that terra, it was held to be a sufficient compliance with the law to file the record at the subsequent term.
    Where the accused is not called at the courthouse door to receive his sentence, nor his sureties called to produce his body, there is no forfeiture of the bond obligating him to appear and receive his sentence.
    APPEAL from the District Court of the parish of Claiborne, Drew, J.

      Stubbs, District Attorney, for plaintiff. Scott, for defendant and appellant.
   Merrick, C. J.

This suit is prosecuted against the defendants, as principal sureties on a bond, requiring the defendant Evans to appear and receive his sentence under a conviction for shooting with an intent to murder.

There is, in the record, a motion to dismiss the appeal. We think it should be overruled. The court did not hold a term at Monroe, in October, 1855, the docket having been disposed of in July of that year; Act, 1855, p. 211., sec. 3. The appellants were not obliged to file the transcript at the time fixed for the October term. The filing on the first judicial day of the present term was in time. It may be fairly presumed that the parties against whom the judgment was rendered, and who gave the bond, were those who moved for the appeal.

On the merits we do not find that Evans was called at the courthouse door to receive his sentence, nor that his sureties were called to produce his body. It does not, therefore, appear that the bond has been forfeited; 3 An., 225.

The judgment of the lower court must be reversed, and the State left to re-mew proceedings, in a regular manner, upon the bond if it shall be deemed expedient.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment •of the lower court, as to the said Mabry Mitchell and IV. J. Scott, be avoided and reversed, and judgment .rendered in their favor as in case of a non-suit.


author: Buchanan, J.

text:
    William W. Allen v. May & Kohn.
    The answer of one of the defendants, who are commercial partners, is admissible against his co defendant.
    Plaintiff died pending the suit in the District Court of Caddo, the administrator of his succession also-died. There being no publication to fill his vacancy, the Clerk of the court, representing the succession, entered appearance, em officio, in the Supreme Court — Held: that he could do so under the circumstances by the provisions of the Act of 1855, without proof of his appointment of administrator.
    XX PPEAL from the District Court of the parish of Caddo, Jones, J.

      Nutt, for Kerby, clerk. Turnell & Hodge, for defendant and appellant.
   Buchanan, J.

The parties file cross demands to a large amount against each other. The proof of many items on both sides is vague and unsatisfactory; but there are other items which are proved. The District Judge, in his reasons for judgment, has analysed the proof on each side, and given judgment for those items which are proved on either side, striking a balance of ten hundred and sixty-two dollars and ninety-three cents in favor of plaintiff. This judgment appears to us in accordance with the evidence. There is a bill of exceptions to the admission of the answers of one of the defendants, (commercial partners,) to interrogatories, as evidence against the other defendant.

There was no error in the admission of these answers. The contract of lease, in evidence, shows that the girl Phoebe was left by plaintiff in the possession of both defendants, as security for payment of his rent, with leave to defendants to sell her in default of payment of his rent, her proceeds to be applied to the payment of the arrears of rent due.

The plaintiff having died pending the suit in the District Court, it was revived in the name of his administrator, John W. Morris, against whom the appeal is taken. It having been suggested of record that Mr. Morrisj, plaintiff’s administrator, is likewise dead, and the cause being continued from last term to make parties, the Clerk of the District Court of Caddo now enters an appearance, as ex officio administrator of the succession of William W. Allen, there being no application to fill the vacancy occasioned by the death of Morris. The appellant, by counsel, objects to the Clerk of the court representing appellee without proof of an appointment as administrator; but we think him entitled to assume that capacity, ex officio, under the circumstances, by the provisions of the Act of 1855, page 55, section 19.

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

Spoítokd, J., recused himself, having been of counsel.


author: Spofford. J.

text:
    Martin Tulley v. M. D. C. Alexander, Executrix.
    The rule that the husband cannot be a witness for or against his wife, nor the wife for or against her husband, C. 0., 2260, being founded on considerations of policy and morality, is believed to be without exception, and the fact that the spouses live apart does not change this rule of law.
    APPEAL from the District Court of the parish of Caddo, Drew, J.

      Hodge & Austin, for plaintiff and appellant. The record does not show who appeared for the defendant.
   Spofford. J.

The only question in this case arises upon a hill of exceptions taken to the ruling of the District Judge, relative to the competency of a witness.

The husband of M. D. C. Alexander, the defendant, was offered by the plaintiff as a witness, and rejected by the court upon the objection of the wife.

The rule in civil matters is, that the husband cannot be a witness for or against his wife, nor the wife for or against her husband, C. C., 2260. And the rule being founded upon considerations of poliey and morality, is believed to be without exception. Here the wife was not a mere nominal party; as the princi-cipal legatee of the testator, she had a direct pecuniary interest in defeating the demand against his succession. Beard v. Morancy, 2 An., 347.

The fact that her husband and herself lived apart could not change the rule of law. The reason which induced the lawgiver to enact it still subsisted in all its force.

Judgment affirmed.


text:
    Eliza Sale v. Van Bibber, et al.
    A deputy Clerk is without power to grant an iujunotion.
    The Acts of 1831, p. 102, and 1833, p. 93, as to the damages to be awarded on the dissolution of an injunction, do not apply to the case where an injunction is dissolved restraining the proceedings of an execution during the pendency of an action to annul a will. They apply only to injunctions obtained in cases in which there are judgments in the proper sense of the word, and not ex parts orders made by the Judge of a probate court.
    Such special damages, only as are alleged and proved, will be allowed on the dissolution of an injunction in a case of this kind.
    APPEAL from the District Court of the parish of Caddo, Land, J.

      Ten-rill & Hodge, for plaintiff. Beall and Crain & Nutt, for defendants.
   Merrick, C. J.

This action was brought to annul a will, and also to enjoin the proceedings of the executors during the pendency of the action of nullity.

The principal complaint made by the appellant in this case is, that the injunction was improperly issued, and that it ought to have been dissolved and damages decreed him for counsel fees as well as costs, instead of which he has been decreed to pay the costs.

The deputy Clerk was without the power to grant the injunction. Gerald v. Gerald, 6 An., 243; Wungerter v. White, ibid, 487.

The injunction having been issued by an incompetent person, and being a conservatory process, not necessarily connected with the main action, we think the same ought to have been dissolved, on the motion to dissolve, at the cost of the plaintiff. But the Acts of 1831, p. 102, and 1833, p. 93, as to the damages to be awarded on the dissolution of the injunction, do not apply to the case before us. They aoply only to injunctions obtained in cases in which there are judgments in the proper sense of the word, and not ex -parte orders made by the Judge of a probate court. 18 L. R., 191 ; 17 L. R., 182; 2 Rob., 180.

Had the defendant suffered damages by the wrongful serving out of the injunction, he should have alleged and proved such special damages. The law will not, in a case of this kind, imply damages at most beyond nominal damages.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be amended, so far as the same decrees the payment of the costs of the process of injunction issued in this case, to be paid by the defendant, and it is ordered that the plaintiff pay the costs of said injunction, and it is further ordered that the judgment of the lower court, so amended, be affirmed, and that the plaintiff and appellee pay the costs of the appeal.


author: Merrick, C. J. Buchanan, J.

text:
    S. D. Parker et al. v. B. T. Scogin et al.
    A judgment confessed by the president of the police jury, is res adjudicata against each individual taxpayer. *
    In the absence of an appeal or action of nullity, no irregularity in the form of proceeding before the district court can be inquired into after the lapse of one year. When the police jury has been regularly cited or made its appearance, no inquiry can be entertained after the lapse of that period, as to whether the power to confess judgment was or wa3 not formally conferred by sufficient authority.
    The parish tax collector is the proper person to collect the taxlevied to pay the subscription of stock of a railroad company.
    APPEAL from the District Court of the parish of Caddo, Zand, J.

      Wright, for plaintiffs and appellants. Grain é JZuit, for defendants.
   Merrick, C. J.

The plaintiffs are sundry land holders and tax payers of the parish of Caddo. They have brought this action to restrain B. T. Saogin from collecting the tax to meet two instalments of the subscription of $100,000 of stock subscribed by the police jury of the parish of Caddo to the Vicksburg, Shreveport and Texas Railroad Company. Their action was sustained as to the second instalment.

We quote for a statement of the facts (preceding the subscription of stock) the following from ihe elaborate opinion of our brother of the District Court:

“The police jury of the parish of Caddo on the 19th day of October, A. D. 1862, passed an ordinance for the subscription of one hundred thousand dollars to the stock of the Vicksburg, Shreveport and Texas Railroad Company. This ordinance contained a statement of the number and amount of the shares proposed to„be subscribed, to wit; four thousand shares at twenty-five dollars per share. It also levied a tax of two per cent, annually, for five years, on the landed estate of the parish, to pay the amount of the subscription of one hundred thousand dollars. The ordinance further provided that it should be submitted to the voters of the parish, on whose property the tax mentioned was proposed to be levied, for their approval and ratification, at an election to be held at the different precincts in the parish, for that purpose, on the first Monday in February, 1853. It further provided that said election should be held by the commissioners of general elections, and that the returns should be made to the clerk of the police jury within six days after the election. The ordinance also provided that on the same day of the election, or as soon as the returns should be made, that the clerk and president of the police jury, in the presence of all such persons as should choose to attend, should, at the court house, ascertain the state of the vote, and declare the same; and that if in the affirmative, then to declare the tax (ordinance) to have the force of law. The ordinance contained, besides, other provisions unnecessary to enumerate in this place.

The election did not take place on the fix-st Monday in February, 1853, as directed by the ordinance, for the reason (stated in 'Col. Battle’s testimony) that notice of the.same had not been published for the length of time required by law.

' The police jury afterwards, on the 7th day of February, 1853, by ordinance, directed the election to be hold on the 14th of March, 1853, or on such other day as the president of the police jury should designate and appoint; and by virtue of this ordinance the election was advertised to be held on the 19th day •of March, 1803, by order of the president of the police jui-y, but did not take place for the reason (stated by CoL Battle),that there was a misdescription in the advertisement of the name and style of the railroad company.

The election was again ordered by the president of the policejuiy, and advertised to take place on the 16th day of April, 1853, and was accordingly held on that day, having been preceded by a notice for thirty odd days, published in the Caddo Gazette, a newspaper published in the palish of Caddo.

And on the 19th day of April, 1853, the clei’k and president of the police jury proceeded, in the presence of witnesses and other persons, to open the returns and to count the votes, when it appeared that two hundred and eleven votes had been cast in favor of the ordinance, and one hundred and fifty-four against it, leaving a majority in favor of the ordinance of fifty-seven votes.

And on the evening of the same day, (19th of April,) after the result of the election was officially known, or .on the morning of the next day, the president of the police jury, William Terrell, subscribed to the stock of the Vicksburg, Shreveport and Texas Railroad Company, four thousand shares, at twenty-five dollars per share.

Andón the 28th of May thereafter, the president of the police jury made official proclamation of the result of the election in the Caddo Gazette, and declared the said ordinance of the police jury of the 19th of Otobei', 1852, to have the force and effect of law.”

In November of the same year the police jury passed a resolution, wherein, after reciting that a majority of the legal voters had not accepted the resolution to subscribe the stock to the railroad company, they ordered a new election to be held to test this, as they called it, “momentous question.” The Vicksburg, Shreveport and Texas Railroad Company instituted in the District Court for the pax'ish of Caddo, in May, 1854, an action praying for judgment against the police jury of the parish, for the sum of one hundred thousand dollars, in five annual instalments, and interest, and inasmuch as the police jury had failed to assess and collect the tax, that the sheriff be ordered to assess and collect the tax on the i-eal estate of the parish of Caddo, under the provisions of the Act of April 29, 1853.

This suit was commenced by citation. The police jury, however, having obtained a compromise by which a portion of the interest was remitted, and the terms for the payment of the instalments deferred, passed a resolution authorizing their president to confess judgment, in. conformity with the compromise. The confession of judgment was filed, and a judgment rendered thereon the 30th day of May, 1854, decreeing the payment of the one hundred thousand dollars, by instalments payable at the period, and bearing the interest agreed upon. It was further decreed that an assessment of taxes should be made and a collector appointed by the police jury to collect the taxes, and in the event of failure on the part of the police jury to make the appointment, a mandate should issue, charging the sheriff with the duty of assessing and collecting the tax.-

The police jury took no appeal from the judgment thus rendered, and no action of nullity was brought to rescind it.

The judgment of the lower court having been adverse to the plaintiffs, as to one instalment, on their appeal they present to us for our consideration the following questions, viz:

“ 1st. Had Mr. B. T. Scogin, parish tax collector, authority to collect the railroad tax ?

2d. Is the judgment, confessed by the president of the police jury, res judi-cata against each individual tax payer ?

“3d. Is the Act of 12th March, 1852, constitutional?

“4th. If the Act is constitutional, can less than a majority of the whole number of the voters, land holders of the parish, approve and ratify the ordinance and subscriptions made under it? ”

It is evident that an affirmative answer to the second question presented by the appellants, will render the discussion of the third and fourth unnecessary. We will, therefore, consider this question out of the order presented.

The nature of municipal corporations is such, that they, of necessity, represent all the citizens of the territory or district submitted to their jurisdiction by classes, as well as collectively. As it would be impossible to conduct a proceeding against each and every inhabitant of a parish, they are represented by their polico jury. If the police jury can represent the inhabitants collectively, it can represent them by classes for the same reason. So the Legisla-lature of the State not only represents the electors who have chosen the representatives composing the Legislature, but also all other classes composing the State, such as women, minors, naturalized citizens, denizens and aliens within its limits. So of a city. The municipal authorities, while they represent the whole body of the citizens within the limits of the city, represent the same by classes; they represent the merchants, the draymen, the laboz-ers, the mechanics, the physicians, the lawyers and the laboring men of all classes. So the police jury represents the tax payers by classes; those who pay taxes upon land as well as those who pay taxes upon slaves, upon movables, upon capital, upon employments, or those who pay merely the poll tax. A judgment, therefore, against the police jury, as the representative of a single class, must be as obligatory upon that class as a like judgment would be against the police jury as the representative of the whole. The effect of such judgment is, in this respect, precisely as that rendered against the administrator of a succession. It, the judgment against the administrator, binds not only the heir of full age, who is sui juris, but the married woman, the emancipated minor, the minor heir, whether with or without a tutor. The judgment of the District Court must, therefore, be held obligatory upon the plaintiffs. In the absence of an appeal or action of nullity, it is obvious that no irregularities in the form of the proceeding before the District Court can be inquired into after one year has elapsed from the rendition of the judgment. If the police jury was regularly cited, or made its appearance, no inquiry can now be entertained whether the power to confess judgment was or was not formally conferred by sufficient authority.

In the case of the Vicksburg, Shreveport and Texas Railroad Company v. the Parish of Caddo, decided by this court last year, it was held that the parish tax collector was the proper person to collect this tax. We discover no error in the conclusion of the lower court that B. T. Seoffin had authority to collect the tax under the mandate issued to his predecessor in office.

Judgment affirmed.

Spopfobd, J., declined taking a part in the decision of this case.

Buchanan, J.

My views of the unconstitutionality of the law of March 12, 1852, providing for the subscription by parishes and municipal corporations to the stock of corporations undertaking works of internal improvement, as expressed in my dissenting opinion in the case of the City of New Orleans v. Mrs. Grailhe, 9th Annual Report, are still unchanged.

But I think the plea of unconstitutionality of the law which authorized the police jury of Oaddo to levy the tax in question, like any other defence which might have been pleaded before judgment, is barred by the exception of res judicata, founded upon the judgment confessed by the parish of Oaddo, in favor of the Vicksburg, Shreveport and Texas Railroad Company. The plaintiffs were parties to that suit, collectively with all the other landowners in the parish of Oaddo, by their mandatories, the policejury of Oaddo.

I concur in the decree pronounced by the Chief Justice.


author: SpoEford, J.

text:
    Jesse C. Williams v. Douglas & Rooks.
    In -a possessory action, where plaintiff alleged himself to he the owner and possessor of the land in question — Jteld, that the defendant having in answer to interrogatories propounded to him, admitted that he leased the land from the plaintiff, defendant was estopped to deny the allegation of. ownership and possession.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Mewton, for plaintiff and appellant. Todd & Robertson, for defendants.
   SpoEford, J.

It is needless to inquire whether a claim to what is styled an “ improvement ” on public lands will furnish a foundation for the possessory action in ordinary cases.

In this case, the plaintiff alleged himself to be the owner and possessor of the land in question, and the principal defendant is estopped to deny it; for, in an answer to interrogatories propounded to him, he admitted that he leased the land from the plaintiff.

He could not change the character of his own possession from that of lessee to that of owner.

The pretended sheriff’s sale of the improvement right did not operate any change of possession. The sheriff does not appear to have made a valid seizure by taking possession himself, or to have put the pretended purchaser into possession; we need not mention other informalities in these anomalous proceedings.

The identity of the tract claimed is admitted by the pleadings.

Judgment affirmed.


author: Mebrick, O. J.

text:
    State v. J. T. Smith.
    The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States.
    A partial concealment of the weapon, which does not leave it in full open view, is a violation of the statute.
    APPEAL from the District Court of the parish of Claiborne, Land, J.
    The record does not show who appeared for the State. George, for defendant and appellant
   Mebrick, O. J.

The defendant was indicted and convicted of carrying concealed weapons. He takes the present appeal to reverse the charge of the judge to the jury. The language used in the charge, and excepted to, is “ that carrying of a pistol in the pockety under the clothes, although partially exposed, is the carrying of concealed weapons within the meaning of the statute.”

The charge is objected to, “first, because it is a direet charge upon the facts of the case, and secondly, an evident misinterpretation of the statute.”

The charge was not a charge upon the facts, although the facts proven before the jury may have been similar. The judge charges upon the facts when he expresses an opinion upon what has been proven to the jury, or when he assumes a given state of facts as proven, and not where he expresses, as in this case, his opinion of the law arising from a state of things which may, or may not, have been established before the jury, and upon the proof of which he abstains from intimating any opinion. On the other branch of the case, we are not satisfied that the charge of the judge mislead the jury as to the law of the case.

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carried openly. The article explains itself. It is in these words: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even desigiied for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke. There is, therefore, nothing in the Constitution of the-United States which requires of us a rigorous construction of the statute in question:

The section of statute under which the indictment is framed, is in these words: “ Be it further enacted, &c., That whoever shall carry a weapon or weapons concealed on or about his person, such as pistols, bowie knife, dirk or other dangerous weapon, shall be liable to a prosecution by indictment or presentment, and on conviction for the first offence shall be fined not less than two hundred and fifty dollars nor more than five hundred dollars, or imprisoned for one month; and for the second offence not less than five hundred nor more than one thousand dollars, or imprisonment in the parish prison at the discretion of the court, not exceeding three months, and that it shall be the duty of the judges of the district courts in this State to charge the grand jury especially as to this section.”

The offence created by this statute is the carrying of the weapon, pistol, bowie knife or dirk, &c., concealed on or about the person. By the first section of the Act of 1813, a weapon of the kind designated was defined as concealed when, being carried by a person, it did not appear in full open view.” Act 1813, p. 172, sec. 1.

A partial concealment of the weapon, which does not leave it in full open view, is a violation of the statute. The judge, in the single expression in his charge to the jury excepted to, does not fully explain himself, yet we think a fair construction of his language does not imply more than is here expressed. He says the carrying of a pistol (a weapon designated by the statute,) in the pocket or under the clothes, although partially exposed, is the carrying of a concealed weapon. We must understand the district judge as speaking of weapons as ordinarily worn, and where the partial exposure is the result of accident or want of capacity in the pocket to contain, or clothes fully to cover the weapon, and not to the extremely unusual case of the carrying of such weapon in full open view, and partially covered by the pocket or clothes. We cannot sa3q from the single expression of the charge excepted to, that such error has intervened on the trial of this case as to require us to reverse the judgment.

Judgment affirmed.


text:
    Curry & Person v. C. A. C. Herlong.
    This was an action against the drawer of a draft. It was held that the notice of protest was insufficient to charge him.
    Although the drawer may have no funds in the hands of the acceptor, yet, if upon taking up the bill he would be entitled to sue the drawee or amj other party on the 'bill, as if he be an accommodation drawer for the drawee or payee, or any subsequent indorsee, then, and in every such case, he is entitled to strict notice of the dishonor.
    APPEAL from the District Court of the parish of Jackson, Richardson, J.

      McGuire & Rap,

    cited 12 R. 231, 3 A. 248, 3 N. S. 147, 18 L. 418, 7 Ann. 225.

      Baker & Harrison and Dvfour S. Thompson, for defendants and appellants,
    cited Story on Bills, 351-2-3; 10 Peters, 572; 9 L. 124, 19L. 370.
   Lea, J.

The plaintiffs in this case bring suit against the drawer of a draft protested for non-payment at maturity. The defendant pleads the want of proper notice of non-payment.

It is urged on behalf of the plaintiffs that the notice of protest was properly given, and, moreover, that.the defendant was not .entitled to any notice, not having had any funds in the hands of the drawee, or any such relations or previous transactions with the drawee, as to justify a reasonable expectation that the bill would be paid for his account. The draft is dated at Trenton, in this State. It is shown that the drawer has resided for several years within four miles of the town of Vernon,- which is the postoffice nearest to his residence, and that he receives his letters and papers at that place. It is shown that the residence of the defendant is distant twenty-four or twenty-five miles from Trenton. The notice of protest was directed to the defendant at Trenton, and it does not appear that the notary made any inquiry or used any diligence whatever to ascertain the drawer’s residence. It is urged that in consequence of the notary’s death, it is impossible to show what steps he look to ascertain the drawer’s residence, but the rule of law is that a want of notice discharges the drawer, unless it is shown that upon the exercise of due diligence the domicil of the drawer, could not have been ascertained. Even had an inquiry been made of the acceptors, (which nothing in the evidence renders probable,) the notary could not have obtained from them such an unequivocal statement that the residence of the drawer was in Trenton, as to create a reasonable belief of its correctness.

• One of the acceptors, who testified as a witness, deposes that he had.no knowledge of the defendant’s residence, except' such as he derived from a letter written to him by'the payee.- A reference' to this letter shows that the defendant did not reside in Trenton, and it does hot state where he resided.

¥e think, therefore, that the notice of protest was insufficient to charge the drawer.

The next question to, be determined is, whether the drawer was entitled to notice. The rule of law in reference to the right of the drawer of a bill to a notice of protest, so far as applicable to the case at bar, is, that although the .drawer may have no funds in the hands of the acceptor, yet if, upon “ taking up the bill, he would be entitled to sue the drawee or any other party on the hill, as if he be an accommodation drawer for the drawee or payee, or any subsequent indorsee,' then, and in every such case, he is entitled to strict notice of the dishonor.” . See Story on Bills, §811, 312.

In this case it is shown by the evidence that the draft was drawn by the defendant for the accommodation- of the payee, and was received by the holders, who are also the plaintiffs in this case, directly from the payee, and was applied to the liquidation in part' of a large indebtedness due by him to them. Of this fact the holders had full notice through their agent, Lane, upon whose suggestion the payee obtained the draft. It was known, also, to the plaintiff’s agent, that the payee expected to provide funds' with which to meet the acceptance at maturity. Under these circumstances the defendant’s case comes within the recognized exceptions to the gaawal rule^ which dispenses with notice of dishonor to a drawer who has no effects in the ha/nefs of the payee.

It is ordered that the judgment appealed from be reversed, and that there bo judgment for the defendant with costs in both courts.


author: Spoitord, J.

text:
    Heirs of B. De Bardelabon v. W. J. Averret et als.

      A nuncupative will, under private signature, may be written by the testator himself, or by another, but when written by another person, it must be “ from his (testator’s) dictation,n or he must have “ caused it to be written,,T in substance and form, a» he presents it, declaring- it to* contain his last will, ses (temieres volontés. O. O, 1574.
    üL PPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Todd S Brigham, and Parsons, for plaintiffs. Matthews & MePee, for defendants and appellants.
   Spoitord, J.

The heirs at law of Shelby Be Bardelabon, deceased, sued the executor and executrix and universal legatee of his last will, made in the nuncupative form, under private signature, to annul the same, on the following allegations:

1st. That the testator was of unsound mind, and therefore incompetent to make a will.

2d. That the formalities prescribed by law were not pursued in the execution of the will.

3d. That it contained a substitution and a fldei commissum reprobated by law.

The defendants have appealed from a judgment declaring the said testament null and void.

The judgment is correct, upon the second ground urged by the plaintiffs, and it will be unnecessary to express an opinion upon the other points.

It cannot be pretended that this will was written from the dictation of the testator or in his presence. It was written by one of the witnesses, at the dictation of another witness, out of the testator’s presence. And the evidence does not satisfy us that be ever declared to the witnesses, that the paper signed by him, after he awoke from a stupor, contained his last will. To sustain such a testament, would be to subvert the Article 1574 of the Civil Code. It is evident that the deceased did not11 cause” the particular will in question to be written, in the sense of the Article just cited. Our law insists that testaments, in all their forms, shall be the utterance of the testator himself — the embodiment of his own thoughts and wishes. In the olographic form, the end is attained by requiring him to write the whole “ with his own handin the mystic form, he is to declare before a notary and seven witnesses, that the paper he presents for their authentication, contains his testament “written by himself or by another, by his direction the nuncupative will, by public act, must be “dictated by the testator and written by the notary as dictated;” and, if under private signature, it may be written by himself, or another; but, when written by another person, it must be “ from his dictation,” or he must have “ caused it to be written,” in substance and in form, as he presents it, declaring it to contain his last will, “ses derniéres volontésP

Judgment affirmed.


author: Spoeford, J.

text:
    L. D. Brewer, Executor, et al. v. George Cook.
    Complaint of tlie non-joinder of other parties defendant and the mis-Joinder of plaintiffs, can not be made when the case stands at issue on the merits.
    It did not appear that defendant had any establishment or agent in the parish of West Feliciana, at the time suit was brought, and it did appear that he had a house and home in Catahoula, to the jurisdiction of the court of which parish he had excepted — Held : Eren if he resided alternately in the two parishes, be might have been sued in either.
    The nature and extent of the service of counsel may be proved by parol.
    APPEAL from the District Court of the parish of Catahoula, Barry, J.

      Mayo, for plaintiffs. Hendry, for defendant and appellant.
   Spoeford, J.

Parties who rely upon merely technical exceptions, should be careful to keep within technical rules themselves. The present appellant pleaded but one of the numerous exceptions relied upon in his brief, in such a manner as to require this court to pass upon it. No speciñe defect in the form of the citation, or of the Sheriff’s return, was pointed out upon the record, so no such defect can be noticed here. The defendant’s complaints as to the non-joinder of other parties defendant, and the mis-joinderof parties plaintiff, came too late after the exceptions taken in limine, were overruled, and the case stood upon its merits.

We think there was no error in overruling the plea to the jurisdiction of the District Court of Catahoula. It does not appear that the defendant had any establishment or agent in the parish of West Feliciana, at the time suit was brought, and it does appear that he had a house and home in Catahoula. Even if he resided alternately in the two parishes, he might have been sued in either. “ The domicil of each citizen is in the parish wherein his principal establishment is selected. The principal establishment is, that in which he makes his habitual residence ; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides, may be considered as his principal establishment, at the option of the persons whose interest are thereby affected. C. C., Art. 42.

The nature snd extent of the services of counsel could be proven by parol, Their signatures to pleadings were immaterial, as they appear to have been' employed to advise and assist other counsel.

It is true the opinion of witnesses as to the value of the services is not conclusive upon the court. But there are facts disclosed in the testimony relative to the property and sums in controversy, which corroborate the estimates of counsel, and we are not convinced that the charges allowed by the District Judge were exorbitant.

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

Mebrick, 0. J., took no part in this decision.


text:
    Anderson & Metcalfe v Coxe & Shelton.
    Any device, by'which a larger amount is sought tobe obtained, for the use of money, than the highest rate of conventional interest is usurious and operates as a forfeiture of the advantage thereby sought to be illegally obtained.
    The Act of 1852, allowing interest at the rate of five cent, per annum, upon all debts from the time they become duó, is applicable only in cases where no stipulation for interest has been made.
    APPEAL from the District Court of the parish of Franklin, Barry ¡ J.

      Morrison, for plaintiffs and appellants Eamage & Jones, for defendants.
   Lea, J.

This is a suit upon a promissory note given for a balance due upon a factor’s account, including an advance of $1,000 in addition to the amount due upon the account.

The defendants deny the advance of $1,000, plead usury and claim credit for the proceeds of seventy-five bales of cotton shipped to the plaintiffs, of which shipment, as defendants aver, they had received no account of sales; also for the sum of $1787 44, received from Messrs. Kendall, Garter & Go., for account of defendants. This last credit has been allowed by the judgment appealed from, and the plaintiffs assent to the correctness of the deduction. The proceeds of the seventy-five bales of cotton were improperly imputed to the payment of the note, as before its maturity, the proceeds liad been credited to the defendants in their running account with the plaintiffs.

It is admitted, that the interest upon the note was usurious. It must therefore be deducted ; the charges for advancing were under the circumstances also usurious, and were, therefore, properly disallowed. Any de vice by which a larger amount is sought to be obtained for the use of money, than the highest rate of conventional interest, is usurious, and operates as a forfeiture of the advantage thus sought to be illegally obtained.

It is urged, that although the usurious interest should be disallowed as such, the plaintiffs are nevertheless entitled to legal interest under the provisions of the Act of 1862, allowing interest at the rate of five per centum upon all debts from the time they become due. See Act of11862, p. 96.

When we consider the policy of our laws prohibiting usury, together with the provisions of the Statute of 1844, we think the plaintiffs’ claim for legal interest is, under the circumstances, inadmissable. See 2 Ann. 863. The Act of 1862 is applicable only in cases where no stipulation for interest has been made. After making the deductions and imputations of payment recognized in the foregoing opinion, viz., $659 76, for usurious interest and commissions for advancing ; $1,140 93, being the proceeds of the seventy-five bales of cotton after the payment of the account for $903 66, advanced upon the cotton, and the further sum of $1,787 44, received by the plaintiffs from Kendall, Garter & Go., for account of the defendants, the plaintiffs would be entitled to a judgment for $1,461 88, without interest.

It is ordered, that the judgment appealed from be reversed, and that the plaintiffs, Anderson & Metcalfe, do have and recover of the defendants, Charles P. Goxe and Caroline M. Shelton, administratrix of the succession of John. M, Shelton, in solido, the sum of $1,461 88, without interest; said judgment, so far as it effects the estate of John M. Shelton, to be paid in due course of administration, according to law. It is further ordered, that the defendants and appellees pay costs in both courts.


author: Spofford, <7.

text:
    Waters, Camden & Co. v. R. B. Briscoe.
    It is not necessary to add to the plea of usury that the obligation sought to be avoided was given .in error. The policy of the law was intended to extend relief in cases where there was no error.
    The fact that a party gave his promissory note for the balance due, as set forth in an account, does not operate as an estoppel to a subsequent inquiry into the correctness of the account. Such a doctrine would abolish all equitable defences upon promissory notes or upon accounts stated.
    The defendant was entitled to the production of plaintiffs ’ accounts, or such of them as, in his opinion, might tend to establish his defence, subject to the plaintiff s’ right to introduce all of his . accounts having any bearing upon the matters in issue. '
    PPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Todd & Brigham, for plaintiffs. Newton & Bull, for defendant and appellant.
   Spofford, <7.

In this case the appellee has moved for the dismissal of the appeal, on the ground that the record comes up without any evidence, statement of facts or assignment of errors.

The grounds upon which the defendant relies for a reversal of the judgment are apparent upon the face of the record, and the certificate of the Clerk states that the transcript contains all the evidence adduced on the trial. If those grounds are well taken, the appeal must be maintained.

The question may, therefore, be referred to the merits.

The defendant resists the payment of two promissory notes, on the ground that the consideration of said notes was illegal and usurious to the extent of about eight hundred dollars, having been given in liquidation of an account made up of usurious items amounting to that sum; and on the further ground that, for $225 of the principal sum for which said notes were given, there was no consideration, said sum being an overcharge for commissions not earned.

Eor the purpose of establishing the defence thus urged, the defendant propounded interrogatories to the plaintiffs, the answers to which might either have established or overthrown the defence. But the plaintiff objected to the interrogatories:

1st. On the ground that the credits claimed by the defendants were not specific in amount.

2d. That there is no allegation in the answer that the notes were given in error, or through ignorance of the facts as they existed.

8d. That the defendant, having assented to the charge of $225 contained in the account, by giving his notes, is estopped from inquiring into its correctness.

4th. Because the answer is confused and unintelligible.

These objections were maintained by the court, we think erroneously.

The credits claimed by the defendant are set forth in such manner as to give the plaintiff complete notice of the character of the defence, and of the extent to which his demand would be disputed. It is not necessary to add to the plea of usury that the obligation sought to be avoided was given in error. The policy of the law was intended to extend relief in cases where there is no error.

The fact that the defendant gave his promissory notes for the balance due, as set forth in the account, does not operate as an estoppel to a subsequent inquiry into the correctness of the account. Such a doctrine would abolish all equitable defences upon promissory notes or stated accounts.

Our attention has been directed to the ruling of the District Judge in refusing to order the production of extracts from the plaintiffs’ books, showing the state of the accounts between the parties. The defendant was entitled to the production of the plaintiffs* accounts, or such of them as, in his opinion, might tend to establish his defence subject to the plaintiffs’ right to introduce all of his accounts having any bearing upon the matters in issue.

By a reference to the pleadings, it appears that, after crediting the defendant with the amount of the effects claimed by him, there would still remain an indebtedness to the plaintiffs.

For this amount, at least, the plaintiffs are entitled to a judgment.

It is ordered, that the judgment appealed from be reversed ; that the plain-, tiffs, Waters, Ocmden & Go., do have and recover of the defendant, Robert B. Briscoe, the sum of $715 31, with interest thereon at the rate of eight per centum per annum from the 23d day of May, 1854, till paid, less the sum of $500, with like interest from the 27th day of February, 1856. A nd it is further ordered, that as respects the remainder of the plaintiffs’ demand, the case be remanded for further proceedings to be had therein according to law, in accordance with the principles announced in the opinion of this court. It is further ordered, that the costs in the District Court be paid by the defendant and appellant, and that the costs of the appeal be paid by the plaintiff and appellee.


text:
    George Wilson v. H. M. Bossier.
    The fact that an overseer had shot at one of the negroes under hia charge, who was endeavoring to escape punishment, justified his employer in discharging him.
    APPEAL from the District Court of the parish of Caddo, Brew, J.

      Hodge, for plaintiff and appellant. Grain & Nutt, for defendant.
   Lea, J.

The plaintiff sues for a year’s wages due to him, as he alleges, as overseer of a plantation belonging to the succession of Sylvester Bossier, deceased, he, (the plaintiff,) having been discharged, as he avers, without cause, before the expiration of the year for which he was employed.

The defendant avers that the discharge of the plaintiff was justified by his improper conduct, he having shot at one of the negroes who was endeavoring to escape punishment. This fact is not disputed, and we concur with the District Judge in the opinion that this was such an abuse of the authority delegated to the plaintiff as justified his discharge. Such a mode of maintaining discipline among slaves is wholly inadmissable and cannot be justified under the pretence that it was resorted to merely for the purpose of intimidation.

We think there was no error in allowing the plaintiff his wages up to the period of his discharge.

Judgment affirmed.


text:
    John Temple v. Marshall & James et al.
    A party will not be allowed, collaterally, to vary or complete a record by parol evidence, but when the ground of action was solely to obtain a remedy for an injury suffered by plaintiff through a clerical omission of an important entry connected with and indispensable to a certain legal proceeding, namely, the omission to enter the order of appeal, and when the plaintiff had laid the foundation for the introduction of proof of the omission, by the production of the bond of appeal and the transcript made for the review of the proceedings in the Supreme Court. Under these peculiar circumstances, parol proof, by the custodian of the record, of the omission to enter the order of appeal, should have been allowed.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Ma'Q-uire & Ray, for plaintiif. Hunter, for defendants.
   Buchanan, J.

This suit grows out of that of the same title, No. 469, of the docket of this court, just decided. The Clerk of the District Court having neglected and omitted, as it is alleged, to enter oh the minutes the motion and order of appeal from the judgment dissolving the injunction obtained by plaintiff in that other suit, the defendant, plaintiff in the execution injoined, after the legal delay for a suspensive appeal from that judgment had elapsed, caused another execution to issue against plaintiff, which execution was injoined by the present suit, on the ground that plaintiff had taken and was prosecuting a suspensive appeal from the judgment dissolving his previous injunction, and that, although no order for such an appeal appeared on the minutes, yet this was through an omission of the Clerk, bond having been given and a transcript made out for and filed in the Supreme Court.

On the trial of the case, plaintiff offered to prove, by the Clerk of the District Court, that-plaintiff, at the term of the court in which the judgment of dissolution of his injunction had been rendered, had moved, through his attorneys, in open court, for an appeal, which was granted, and the amount of the bond for a suspensive appeal fixed by the court, and the appeal made returnable to the ' Supreme Court at Monroe on the first Monday of October, 1855, which evidence was rejected by the court, on the ground that an omission of the Clerk to enter an order of appeal could not be supplied by parol testimony.

We think this ruling of the .court wrong under the circumstances. It is unquestionably true, that a party would not be allowed to vary or complete a record by parol evidence, collaterally. State v. Lonjimeau, 6 An. 700. But here the whole ground of action was an injury suffered by plaintiif through a clerical omission of an important entry connected with and indispensable to a certain legal proceeding. The object Of the suit was solely to remedy the omission, and the plaintiif had laid the strongest foundation for the introduction of proof of the omission,- by the production of the bond of appeal and the transcript made for the review of the proceedings.- in the Supreme Court by appeal.

Under these'peculiar circumstances, the proof, by the custodian of the record himself of the omission to enter the order of appeal should have been allowed.

But it will be unnecessary to send the cause back for the purpose of procuring this testimony. The only result in favor of appellant of such a proceeding could be the perpetuity of his injunction. But in the case No. 469, just decided, we have passed upon the merits of his previous injunction, and have dissolved it. That injunction was the sole basis of the present one, and that having fallen, it is impossible that this can stand. This injunction was well taken, however, under the state of facts existing at the time it was applied for and the plaintiff should be exonerated from the costs of a suit rendered necessary by the fault of his adversaries.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, that this suit be dismissed, and the injunction dissolved, and that the defendants, Marshall & Janies, pay costs in both courts.


text:
    Presentia Garcia v. Kitchings et al.

      It is a sufficient evidence of a Clerk of a District Court in this State, being the administrator of an estate, which he assumes to administer ex offioio under the Act of 1855, that he files a written appearance in this court as such. No order of court, oath, bond or letters of administration are required to authenticate his capacity.
    APPEAL from the District Court of the parish of Caddo, Bullaid, J.

      Mutt, for'plaintiff. Hodge & Austin, for defendants.
   Buchanan, J.

(Spoffoed, J., recused himself.) This cause has stood continued in this court ever since 1852, for the purpose of making parties, the plaintiff and appellee having died. At length, on the 16th July, 1856, the Clerk of the District Court for the parish of Caddo flies an appearance, “as ex officio curator or administrator of the succession of Presentía Barcia, deceased, which administration he has assumed, as required by law,” and prays that the judgment of the District Court be affirmed, with costs.

The^ appellant, Kitchings, objects to the filing of the appearance of the Clerk of the District Court as a party to this suit, on the ground that there is no evidence before the court that he is ex officio administrator of plaintiff.

We take official cognizance of the fact of William Gr. Kisby being Clerk of the District Court of Caddo parish. As such, the 19th section of an Act to regulate and define the ‘duties of Clerks of District Courts generally, (Session Acts of 1855, page 52,) makes it his duty to assume the administration of successions which are so small or so much in debt that no person will apply for or will be willing to accept the administration. The expression used in this statute is “assume the administration.” No order of court, oath, bond or letters of administration are required to authenticate bis capacity. It is sufficient evidence of the Clerk being the administrator of plaintiff’s estate that he files a written appearance in this court as such.

The exception of the appellant is, therefore, overruled.

Upon the merits, the verdict of the jury and judgment appealed from seem justified by the proof.

Judgment affirmed, with costs.


author: Merrick, O. J.

text:
    State v. Bradley, Administrator, et al.
    The plea of discussion is one that must be pleaded in Ivnrnie litis.

    The objection that a Sheriff’s bond was not executed until more than thirty days after the Sheriff’s commission, and that it was not approved until some months after, and that it was not recorded, by the Recorder in the separate book kept for its registry, but there being no such book, that it was recorded in another book, cannot avail the sureties in seeking to avoid liability.
    The amount of taxes, which it is shown conld not have been collected, will be allowed as a credit in an action against the sureties on a Sheriff’s bond.
    APPEAL from the District Court of the parish of Franklin, Barry, J.

      Stubbs and Hough, for plaintiff
    cited, 7 A., 595, 178 and 377. Morrison, for defendant and appellant — cited, C. C., 2294, 3030, 3008; O. C., p. 432, Art. 22.
   Merrick, O. J.

This suit is brought against the succession of A. H. Bradley, deceased, formerly Sheriff of the parish of Franklin, and the sureties upon his bond as tax collector of the taxes of 1848.

The claim of discussion, under the Acts of 1847, p. 175, sec. 64., and p. 109, sec. 4, cannot be awarded to the defendants in this case. The plea of discussion is one which must be pleaded in limine litis, Dwight v. Linton, 3 Rob., 57; Zacharie, p. 66.

The objection that the bond was not executed until more than thirty days after the date of the Sheriff’s commission, and that it was not approved until the 12th February following, and that it was not recorded by the Recorder in the seperate book to be kept for its registry, but there being no such book, that it was recorded in another book, cannot avail the defendants.

The Statutes are directory in these particulars, and it does not become the Sheriff who has received and undertaken to collect the tax roll, nor his sureties, who bind themselves for his acts, to say that the bond which they have given, and by means of which the Sheriff has obtained possession of the tax roll, is inoperative. See the case of the State v. Hays et al., 7 An., 118, and State v Sureties of A. J. Law, 11 An.

As this judgmentis final between the,State and the defendants, the amount real- • ly due the State and no more ought to be ascertained according to the proof and judgment rendered accordingly. There is no reason, therefore, why the succession of Bradley should not be allowed a credit for $259 42, the amount of those taxes which it is shown could not be collected. As to the compensation for’ services in criminal matters, the salary of $100 was subject to be drawn quarterly, and the state of that account is not before us.

The judgment as it respects the sureties requires no material change, because the amount they are decreed to pay, respectively, will not meet the amount due' by the succession of A. H. Bradley, but they are interested in the change made/ in the judgment as it may lessen the balance which they may be compelled to pay.

It is, therefore, ordered, adjudged and decreed, by the court, that the judg-ment of the lower court be avoided and reversed, and that the State of Louisiana do have and recover of the defendant, Madison E. Cox, in his capacity of, administrator of the succession of Augustus H. Bradley, deceasedr.the sum of thirteen hundred and thirty-dhree dollars and fifteen cents, with two per eent. interest thereon per month, from the first day of June, 1850, until paid; to be paid in the due course of administration, and that the said State of Louisiana do recover judgment against said Wm. E. Rapp, as surety in part for said debt and interest for the sum of five hundred dollars with five per cent, interest thereon from the judicial demand, and against Enos Mackey, as likewise surety for the sum of five hundred and ten dollars with five per cent, interest from said judicial demand, and against David R. Wilcox, as likewise surety for five hundred and six dollars and seventy-seven cents with like interest from judicial demand, and against William 0. Bradley, for one thousand and sixteen dollars and seventy-seven cents, with five percent, interest from the judicial demand. And it is further ordered, that any legal claims which the succession A. H. Bradley may have against said sureties be reserved, and also any claim the said succession may have for services rendered the State in matters of a criminal nature, be likewise reserved to said succession, and it is further ordered, that the defendants pay the costs of the lower court.


text:
    Pargoud v. Pace.
    The certificate of the Clerk stated that “ the foregoing pages contain a full, true and completetrans-cript of all the proceedings had and documents filed on the trial in the case of P. v. P., as on jilt in my office” &c. Held: that this does not answer the requirement of Art. 896 0. P. It is not certified that the transcript contains all the evidence adduced on the trial. Appeal dismissed.
    APPEAL from the District Court of the parish of Ouachita, Richardson, J.

      McGuire & Ray, for plaintiff. Baker & Harris, for defendant and appellant.
   Buchanan, J.

The motion to dismiss is in time. This appeal, granted in December, 1855, was made returnable in October, 1856. By a statute, approved March 18th, 1856, (Session Acts, page 73,) the term of this Supreme Court in Monroe was changed from the first Monday in October to the second Monday in July. This appeal was filed the 11th July. The second Monday this year was the the 14th July. The motion to dismiss was filed on the 17th July, within three days after the legal commencement of the term, and in fact before the day on which the appellee was cited to appear.

The motion is based upon the want of a legal transcript. The certificate of the Clerk states that “ the foregoing four pages contain a full true and complete transcript of all the proceedings had and documents filed on the trial in the case of H. Fargoud v. James Pace, as on file in my office, except what is contained in the transcript of the previous appeal, and the opinion and judgment of the Supreme Court thereon.” This certificate does not answer the requirements of Article 896 of the Code of Practice.

It is not certified that the transcript contains all the evidence adduced on the trial of the rule. No evidence, either documentary or oral, is copied in the transcript, neither is there any statement of facts or bill of exceptions. Allain v. Preston, 5 L. R. 478; Nettleton v. Stephens, 6 L. R. 166; Anderson v. Stephens, 6 L. R. 303; Succession of Kemp, 9 An. 190.

Appeal dismissed, at cost of appellant.


author: Buchanan, J. Mermck, C. J.

text:
    Joseph Donnell v. James M. Sandford.
    A person is responsible, under 0.0., Art. 2294, for the damages resulting from an assault and battery committed by him.
    The future diminished capacity to earn wages, consequent upon injuries resulting from an assault and battery, properly enters into the computation of damages — also .bodily pain- and suffering occasioned by the battery may properly be considered by the jury in making up their verdict.
    A PPEAL from the District Court of the parish of Ouachita, Richardson, J.

      Stubbs and Morrison, for plaintiff. McGuire & Ray, for defendant and appellant.
   Buchanan, J.

Defendant has appealed from a verdict of a jury against him for eight hundred dollars, damages for an assault and battery upon plaintiff, after an ineffectual attempt to obtain a new trial in the District Court.

The evidence shows, that in January, 1864, without any provocation whatever, the plaintiff bit defendant several times, very severely, upon the left leg or thigh near the ¿nee; that the wounds being very painful, a surgeon, of eminence in the profession, was called in some days afterwards, who found the plaintiff with his left leg swollen and inflamed, and with a high fever caused thereby. Suppuration commenced in the knee joint, and the heads of the bones became ulcerated, the flesh sloughed off the wounds caused by the bites and the leg became drawn up at nearly right angles and shrivelled. The bones of the leg and thigh became united; and the leg was amputated below the knee, in November, 1854, ten months after the injury.

The evidance leaves no doubt upon our minds that the diseased condition and consequent wásting and deformity of the plaintiff’s limb were proximate and necessary results of the remarkably brutal and wanton assault committed by the defendant. The amputation was not, it is true, indispensible to save the plaintiff’s life, which is the ordinary nature of such operations; but the professional gentleman who performed this operation, declares that the limb was so incurably distorted, as to be an incumbrance to its owner much more than a wooden leg would be.

The defendant is therefore, responsible, under the 2294th Article of the Civil Code, for the damages resulting from his act.

The elements of damage would seem to be, under the proof in the cause:

1st. Loss of time and labor from the date of.the assault until plaintiff’s restoration to health.

2d. Expenses of medical and surgical attendance during his illness.

3d. Diminished capacity to work at his trade, consequent upon the loss of his leg.

I. The plaintiff is proved to have been a carpenter and gin-wright by trade, and a first-rate mechanic, well capable of earning two dollars and a half or three dollars a day. His loss of time while confined to his bed, at the rate of $3 per day, might therefore be reckoned at very nearly, if not quite, the whole amount allowed by the verdict of the jury.

II. The charge for medical and surgical services is proved to be three hundred dollars.

III. The future diminished capacity to earn wages at his trade, consequent upon the loss of a leg, is estimated by witnesses at one half. In other words, they are of opinion, plaintiff would not be able to obtain, in his present condition, more than half the rate of wages of an able-bodied workman. In the case of Blade v. Carrollton Railroad Company, 10th An. Rep., we allowed prospective damages of this kind. And the present case is stronger than that, inasmuch as it is the maimed individual himself who is plaintiff in this case ; while in the case quoted, the damages were allowed to a father for the mutilation of his son.

It will be perceived that we have made no account of the bodily pain and sufferings of the plaintiff — matters of which an exact pecuniary assessment is impossible, yet which might very properly have entered into the. consideration of the jury in making up their verdict. C. C., 1928, paragraph 3.

A reasonable approximate estimate of plaintiff’s damages, under the three heads above mentioned, would exceed rather than fall short of the sum awarded by the jury.

The appellee has prayed in his answer for an amendment of the judgment bjr increasing the damages.

It is, therefore, adjudged and decreed that the judgment of the District Court be amended, aad that plaintiff recover of defendant one thousand dollars damages, with costs in both courts.

Mermck, C. J.

I cannot think that one thousand dollars is an adequate compensation to a laboring man for the loss of so important a'member as a leg. Still, as the jury have assessed the damages at eight hundred dollars, and my colleagues have thought one thousand dollars sufficient, I am unwilling to oppose my single opinion to that of a majority of the court.


author: Seoffobd, J.

text:
    Succession of Peterson G. Parham—Opposition to the Probate of a Will.
    “ The testament falls by the birth of legitimate children of the testator posterior to its date.” C. 0., Art. 1698.
    APPEAL from the District Court of the parish of Catahoula, Barry, J.
    C. Mays, for plaintiffs. Hendry, for Sarah A. Parham, appellant.
   Seoffobd, J.

The only question in this case touches the caducity of a last will, executed by the deceased Parham, in the State of Alabama, where he then, resided, but who, subsequently, removed to Louisiana, where he accumulated most of his property, and where he died domiciliated.

It is admitted, that there were legitimate children born to the testator after the confection of the will, but it does not appear whether they were born in Alabama or in this State.

Article 1698 of the Civil’Code is unqualified and imperative. “The testament falls by the birth of legitimate children of testator posterior to its date.” We see nothing in the record to take this ease out of the rule.

Judgment affirmed.


author: Spofford, J. Merrick, C. J.,

text:
    Heirs of Singleton v. Dicey Kelly & Dicey Kelly, Tutrix.
    Construction of a written instrument purporting to transfer title to slaves, executed in Mississippi, containing the following clause: “ The condition of the above bill of sale is such that, whereas, the said Ichabod Kelly has paid and furnished the said Vincent Si/ngleton divers sums of money which, when fully paid by the said Singleton to the said Kelly, will render this bill of sale null and void; and, provided, further, that should the said Singleton die without refunding said Kelly said sum of money, then and in that case, the said Ichabod Kelly, his heirs or assigns, is hereby and forever exonorated from any further liability for any further sum or sums of money to the said Vincent JS. Singleton, his heirs or assigns. But that the absolute right and title of said negroes shall fully vest in the said Ichabod Kelly, his heirs and assigns, forever.”

      Held: that it is, to all intents and purposes, an act of sale defeasible upon the performance of certain acts by the grantor in his lifetime. Even were it to be considered in the nature of a mortgage, it would have conveyed the legal title under the law of the place where the contract was made. And before the mortgager could have exercised his equity of redemption, he would have been obliged to tender a full discharge of the debt for which the security was given.
    Mgrriok, 0. JM dissenting. The instrument is a deed of trust to secure the payment of a sum of money.
    APPEAL from the District Court of the parish'of Morehouse, Barry, J.

      Matthews, for plaintiffand appellant. Boberlson and Todd, for defendant.
   Spofford, J.

The motion to dismiss the appeal is overruled. The consolidated cases in which the appeal was taken, are identified by the petition and order of appeal, and the bond is given in favor of the proper party, both in her individual and representative capacities. The pleadings disclose the names of the minors to whom she is tutrix, and the bond would inure to their benefit.

Upon the merits, the cause must be decided by the construction given to the written instrument executed in Mississippi, by the aneester of the plaintiffs, on the 17th December, 1845. The instrument must speak for itself, unaided by parol evidence. It is, to all intents, an.aet of sale with a condition that it shall be defeasible upon the performance of certain acts by the grantor in his lifetime. So fiir'as appears, the grantor died without performing the acts, and the deed thus becomes absolute. Indeed, the plaintiffs, heirs of the grantor, have not pleaded that their ancestor ever paid to the grantee the moneys which were necessary to operate a defeasance of the deed. ¿

They argue that the act was a pledge and not a sale; and that, neither at its date nor at the death of their ancestor did it convey any title to the defendant’s author. There were all the requisites of a sale; a thing, a stipulated price, and a consent. Even were it to be considered in the nature of a mortgage, it would have conveyed the legal title under the law of the place where the contract was made. And, before the mortgagor could have exercised his equity of redemption, he would have been obliged to tender a full discharge of the debt for which the security was given, a tender which has not been made. There is nothing to show that the contract was an antichresis made in contemplation of the law of Louisiana, whither the contracting parties subsequently removed.

The judgment is, therefore, affirmed with costs.

Merrick, C. J.,

dissenting. The instrument get up as title by the defendants is evidently one of those deeds of trust, common in the State of Mississippi, to secure the payment of a sum of money. The sum of two thousand dollars, named in the body of the instrument, is merely a nominal sum, as is apparent from the condition, which is in these words: “ The condition of the above bill of sa]e js sucj); that, whereas, the said Ichabod Kelly has paid and furnished the said Vincent Singleton divers sums of money which were fully paid by the said Singleton to the said Kelly, will render this bill of sale null and void; and, provided, further, should the said Singleton, die without refunding said Kelly said sums of money, then, and in that case, the said Ichabod Kelly, his heirs and assigns, is hereby and forever exonerated from any further liability for any further sum or sums of money to the said Vincent B. Singleton, his heirs or assigns, but the absolute right and title of said negroes shall fully vest in said Ichabod Kelly, hi's heirs and assigns, forever.” This instrument bears date 17th December, 1845. It does not appear to have been recorded in Mississippi, and was not re--, corded in Louisiana until December, 1849.

Singleton died in November, 1846, within a year from the date of the instrument. This estate was administered by the Clerk on the oath of Kelly, as an estate under the value, ($500,) and as consisting entirely of movables. Kelly having bought at the probate sale of Singleton property to the amount of $187 75, presented the remaining notes which were secured by the deed of trust, and which amounted to $401, and a note of a later date of $167 89, to the administrator, and obtained from him a credit to that amount upon the purchases, by allowing the same as a credit upon the notes of Singleton. Having, therefore, instead of living content with his stipulation, that he should not be compelled to pay anything more for the negroes after the death of Singleton, undertaken to exact the notes which were secured by the instrument, a Court of Chancery, in my opinion would, notwithstanding Singleton’s death, at once hold the instrument as a mere security for the loan of a sum of money, and decree the property to the plaintiff, on paying the defendants the excess, if any, of the notes over the time of the negroes. I, therefore, think the same judgment ought to be rendered here, and that the judgment of the lower court ought to be reversed.


author: Spofford, J.

text:
    The State v. N. A. Delerno.
    All indictment which charges the selling liquor to a slave without the written consent of the master does not necessarily charge any offence by the Acts both of March 18,1852, p. 2¿5, and of March, 15,1855, p. 880, It is of the essence of the offence that the selling to the slave should be “ without the consent in writing, of the owner, overseer or employer of such slave.” Selling liquor to a slave, without the written consent of the owner is no offence, if the slave has the written consent of the overseer or employer for the time being.
    Such a defect in an indictment is one of substance and not of form. The Statute of March 14,1855, p. 171, to “ regulate the mode of procedure in criminal prosecutions,” did not debar the accused from moving to arrest the judgment for such a material omission in the indictment.
    Section 17 of same Act relates only to formal defects.
    APPEAL from the District Court of the parish of Ouachita, Biehardson, J.

      Stubbs, District Attorney, for plaintiff. J. D. & J. McEnery, Bentop and Garrett, for defendants and appellants.
   Spofford, J.

It becomes immaterial to notice the constitutional question raised in this case, for it is conceded by the District Attorney that the indictment must rest either upon the 1st section of the Act of March 18th, 1852, p. 225, or upon the 23d section of the Act of March 15th, 1855, p. 380. It matters not which be considered in foree — for, by both Statutes, it is of the essence of the offence that the selling to the slave should be “ without the consent, in writing, of the owner, overseer or employer of such slave.” These words are in the body of both Statutes, and not introduced by way of proviso. 1 East. Rep. p. 643. Selling liquor to a slave without the written consent of the owner is no offence, if the seller have the written consent of his overseer or employer for the time being. So the language of this indictment, which charges a selling without the consent, in writing, of the owner merely, does not of necessity charge any offence. This is a defect of substance, and not of form. It was not waived by pleading to the indictment, nor aided by verdict. The Statute of March 14th, 1855, p. 171, “ to regulate the mode of procedure in criminal prosecutions,” did not debav the accused from moving to arrest the judgment for sueh a material omission in the indictment. Section 17 declares that “ every objection to any indictment for any formal defect apparent upon the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn, and not afterwards. As we do not regard this as a formal de-feet, the motion in arrest should, in our opinion, have prevailed.

It is, therefore, ordered that the judgment of the District Court bo avoided and reversed, and that-judgment on the indictment in this ease be arrested, without prejudice to a further prosecution under a valid indictment.