author:
Slidell, J.
      Rost, J.

text:
    Maria W. Morgan v. S. Yarborough.
    Reciprocal promises of marriage constitute a legal contract, and the party violating the contract is liable in damages. O. C. 1928.
    Promises of marriage to constitute a valid contract need not he in writing.
    To constitute a contract founded upon a promise of marriage there must have been an acceptance of the promise, but it is not indispensible that the proof of the acceptance be direct; it may he inferred.

      A man wlio Rad made a promise of marriage to a woman, would Re excused from a performanee of Ms promise, if she was of unchaste character, or if her general reputation was had, even without proving that such reputation was well founded, where he made the promise in ignorance of her reputation.
    APPEAL from the District Court of East Feliciana, Burke, J.

      Z. S. Lyons, for the plaintiff,
    contended : This is an action for a breach of promise of marriage. The plaintiff alleges, that on or about the month of December, 1.844, and at divers and sundry times, said time in said State of Louisiana,’’ the defendant undertook and faithfully promised to marry plaintiff &c. By an amended petition, allowed by court, the promise was alleged to have been reciprocally made. This amendment was properly allowed. It bases in furtherance of justice and the omission clearly a clerical error; for the form is copied from Chitty’s Pleadings. Defendant filed exceptions to the action The chief exception, and the only on.e I have time or inclination to notice,, is, “ That there is no legal cause of action known to the laws of Louisiana set forth in the petition. In support of this exception, articles 37 and 2308 of the Civil Code are relied on. The latter article provides, “ That every matrimonial agreement, (marriage contract,) must be made in writing before a notary public and two witnesses and it must be recorded. Surely, the “ matrimonial agreement” here mentioned is an entirely distinct matter from “ the matrimony, or promise, or agreement to many.” It seems clear, that this stipulation, and the subsequent prohibition in the code, has reference only to the property brought into, or acquired subsequently to, the marriage. The articles of the code, from 2309 to 2315 inclusive, all go to show this.
    That the marriage contact must be recorded, is equally obligatory ; and yet, if not recorded, it is binding as between the parties. Ford v. Ford, 2 N. S. 574. But the marriage itself may be agreed upon, contracted and entered into, and all the obligations, liabilities, and duties incurred, and visits in person, and property given without any written contact at all; as for example: 1. Mutual fidelity, support and assistance. C. C. 121. 2. The wife is bound to live with her husband. C. C. 122. 3. There exists the coramuuity of profits and gains. C. C. 2369, 2470, 2374, 2375.
    There are many other rights, both in regard to person and property, which can be claimed without any written agreement. Slaves proved to be paraphernal, and no written contract. 10 M. R. 188. Parol evidence received, when no inventory to prove that a wife brought real property into the marriage. 4 M. R. 603. The articles of the. code (C. C. 107,) and others cited by the exceptors, are merely directory; the marxlage is good, without their observance. 3 L. R. 35 ; 6 L.R. 463.
    Hence, the prohibitory enactment contained in article 2414 of the code does not sustain the view of the exceptors. Neither are they sustained by articles 2415, 2416, 2417, on which they seem to rely. We may here draw the distinction between what forms the basis, or cause of action, and what is merely incidental to it. A “ promise to marry” is one thing, and a “ marriage contract” is another. But the code contains an article which seems to place this question beyond a doubt, if any could exist in a rational mind; I refer to article 1928, No. 3. That such an action is contemplated by the code, is clear, from the foregoing extract; that the promise to many need not be in writing, and before a notary and two witnesses, seems equally clear. Besides, we have the article 2294 of the Civil Code, which, in a sweeping clause, gives the right of action to all persons who may be damaged or injured by another, and covers all “ torts” not otherwise specially provided for, in the code. Miller v. Holstein, 16 L. R. 389.
    It is upon the articles 2294 and 1924 et seq., and upon No. 3 of article 1928, that this suit is brought; and I humbly conceive, that there is a legal cause of action known to the courts of Louisiana, shown by the petition and amended petition on file in this case, — that the cause of action is set out with sufficient certainty. Code of Practice, 172, No. 3. 6 M. R. 402. 10 L. R. 219. 3 L. R. 292; 5 M. R. 7, — and that the court below did not err in overruling defendant’s exceptions.

      Stephen Yarborough, the defendant,
    undertook and promised to marry the plaintiff, Maria W. Morgan. This promise was accepted by plaintiff. She proceeded to New Orleans, and made arrangements for the wedding. The defendant broke and violated his promise to marry plaintiff, by marrying another lady, viz: Mrs. Buckingham, formerly Miss Bellman. The mutual promise to marry is as clearl/proven as in cases of this kind proof .can be made. Courts do not hold the parties in an action of this kind to the strictdetail proof required in ordinary monetary. contracts. But we think the proof in the reeord is abundant and to the point, and cannot be evaded.- The breach of promise, by defendant’s marrying the lady referred to, being an “ active breach,” by whieh he placed out of his power to comply with his undertaking, no putting in mora was necessary. C. C. 1925, 1926. 2 Chitty’s Plea.
    The defendant, to get rid of the consequences of his injustice, has resorted to a course, unfortunately but too common with such men, which has been signally rebuked by the verdict of a jury, and wliich it is hoped will find no favor in this honorable court. He charges upon the lady “he once was willing to make his wife !” (and attempts to support those charges by testimony,) with conduct, such as even the most abandoned of women would not be guilty of. These charges have been fully and laboriously investigated in the court below, and before a jury of the friends and neighbors of Stephen Yarborough ; and, after 'a trial of more than two weeks that jury repudiated the charges and gave a verdict of one thousand dollars damages against the defendant.
    Will this court, after the repeated declarations that the verdict of a jury will not be disturbed, unless manifestly erroneous, set aside this righteous judgment. Surely your honors will receive reasons more cogent than any contained in the labored brief of defendant. The court will observe, that the record contains all the evidence adduced on the part of defendant, both that received and that rejected by the court. A perusal of that evidence, and the rebutting testimony of the plaintiff in support of her character, must satisfy the court that the verdict of the jury should not be disturbed, and this case be sent back for another long, tedious and disagreeable investigation. The plaintiff proves an honest and irreproachable character by witnesses who knew her, and who are, many of them, well known.

      Muse and Merrick for defendant,
    contended: The first and the principal ground relied on in the exceptions, as the court will perceive, is this : That “ there is no legal cause of action known to the laws of Louisiana set forth in said petition.” Viewed as an action for damages resulting from the non- j performance or breach of an ordinary contract (and in this sense it is presumed ! the court will consider it, under article 87 of the Civil Code, which declares ¡ “ that the law considers marriage in no other view than as a civil contract,”) the ( original petition does not contain a single allegation, in the opinion of counsel,! whieh would, if true, constitute a legal claim for damages. There is no allega- j tion that there was any contract or mutual agreement between the parties,; which was equally binding upon both, or which gave to either the right oil judicially enforcing a performance; nor is it alleged that a performance was I ever demanded prior to the institution of the suit by the plaintiff, nor before ! the subsequent marriage of the defendant to Mrs. Buckingham, although more i than five months had elapsed from the time (December, 1844,) when it is j alleged the promise was made up to the time (May 29th, 1845,) when the ¡ marriage of the defendant to Mrs- B. took place; and there being no time \ fixed (at least none is alleged,) when the marriage to Mrs. Morgan was to be consummated, it was, of course, demandable instanter. Neither is it alleged in the plaintiff’s petition that any promise or agreement was ever made between plaintiff and defendant, clothed with the forms prescribed by the law of Louisiana for agreements upon the subject of matrimony. By article 2308 of the Civil Code it is declared, that “ every matrimonial agreement must be made by an act before a notary and two witnesses. The practice of marriage agreement under private signature is abrogated.” This provision of the code, although it is found in the title and chapter, the general dispositions of which relate to the property of the spouses, is nevertheless too broad and comprehensive in its terms to be limited and applied exclusively to their property, as is humbly conceived by defendant’s counsel. And, indeed, the reason and supposed policy of the law in requiring matrimonial agreements to be clothed in the form prescribed, would, it is believed, apply with equal if not greater foree to the marriage agreement by which the parties bind themselves to become, at a future period, the partners tor life of each other, than to the agreements which they might make relative to their property. It is not contended that a marriage agreement, in whatever form the parties may adopt, whether verbal or written, by public or private act, would not be valid when consumated by the actual Marriage and cohabitation of the parties; but, where no marriage has taken place the laws of Louisiana have provided no judicial remedy for agreements upon the subject of matrimony, whatever may have been the object of those agreements, unless they have been made in the form prescribed by article 2308 of the Civil Code. It would be difficult to conceive that the law-maker had attached greater importance to the property of the spouses than to the obligations which they enter into, by which they agree to become the partners of each other for life ; nor would it be less difficult to come to the conclusion that the vinculum legis might be formed verbally, or by act under private signature, in reference to the marriage itself, which ought, it would seem, to be regarded as the primary and principal agreement of the spouses, whilst the law refuses to recognise their agreements upon the subject of their property, which is but an incident, and secondary to the marriage agreement itself, unless made in authentic form.
    A distinction has been drawn by the learned judge who presided at the trial of this cause, between “ an action for a breach of marriage promise,” and “ an action upon a marriage contract.” In his charge to the jury (to be found at page 389 of the record,) the learned judge uses the following language, viz : “ The action here is for a breach of promise to marry, and not upon a marriage contract, which is a specific contract requiring peculiar forms and attestations of authenticity, and incidentally the objections to parol, and even beginning of proof in writing, on the same ground requiring notarial act, for it must be plain to every plain mind, that to admit no other resort but notarial act, which is acknowledged not to exist; in other words, would be to require the production of that which does not exist, and to reject the parol and other forms of writing, would be to reject the only existing testimony, and thus to deny the action.” The demand, for of course the demand, the action cannot be transacted but by evidence, and if the parol and others be rejected, and the notarial do not exist, then there is none. The production of act notarial and witnesses, are technical to a specific thing, notarial marriage contract, and touches not a contract of marriage.” Should this honorable court feel inclined to adopt the views and to recognise the distinctions of the learned judge a quo, the counsel for the defendant would most respectfully suggest, that although the plaintiff’s action “ cannot be transacted but by evidence,” (which is a proposition not controverted,) and “ that to admit no other resort but notarial act, which is acknowledged not to exist, would be to require the production of that which does not exist,” and that “to reject the parol and other forms of writing, would be to reject the only existing testimony, and thus to deny the action ;” still, the case of the present plaintiff cannot be distinguished, it is believed, in point of principle, (without, indeed, entering into that region of total abstraction and “ clairvoyance,” into which few minds are permitted to enter,) from that numerous class of litigants whose “ actions cannot be transacted but by evidence,” and whose demands not being supported by legal evidence, their actions (if not “ denied”) are not sustained. “ The action here” (being) “for a breach of promise to marry, and not upon a marriage contract, would, it is presumed, not relieve the plaintiff from the necessity of supporting her demand for damages for a breach of marriage promise, by the same evidence which would be necessary to support her notion upon a marriage contract.” The distinction, as to the evidence between an action for damages for a breach of a contract and an action upon the contract for a specific performance, has not been recognised by any previous judicial decision. Upon this point the late Judge Martin holds the following language* (4 L. R„ p. 377,) viz : “ He who claims damages for the inexecution of a contract, must prove that it was actually entered into in the same manner ae if it required the specific performance of it.” It may be proper, perhaps, to state (which this honorable court cannot fail to perceive,) that the point under consideration was not so elaborately discussed by Judge Martin, as it has been by his honor the judge a quo, and that the opinion of his honor the district judge had not been delivered at the time Judge Martin made the decision above referred to. But his honor, the judge a quo charged likewise. That “ an action for damages for; a failure to fulfil a marriage promise, or ‘ promise to many,’ is sustained and authorised by the laws of Louisiana. C. C. 2294.”
    This article of the Louisiana Code, (to be found under the head of “ Offences and Quasi Offences,”) provides as follows, viz : “ Article 2294. Every act •whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.” This general provision of the Civil Code, which relates to quasi-offences, and will, it is presumed, be construed with reference to the subject matter treated of in the provisions which immediately follow it, | cannot certainly be applied to a breach of marriage promise, when taken in connexion with article 87 of the code, which expressly declares that “ the law # considers marriage in no other view than as a civil contract.” If, therefore, a promise to marry, or a marriage contract, be regarded as a civil contract, it .1 would seem that the rights and responsibilities of parties in relation to those ¡j contracts should be determined, not according to the provisions of the code •i upon the subject of offences and quasi-offences, under which the right of action, j if any, arises ex delicto, but according to those provisions which provide a remedy j upon contracts, and under which the right of action, Whether to enforce a specific j performance, or to recover damages for a non-performance, arises ex contractu. jj It is not pretended that the present action can be sustained (at least it was not I in the court a (quo,) under those articles of the code which provide a remedy tjapon contracts.
    This honorable court will perceive that, in the opinion of the judge a quo who presided at the time the exceptions under consideration were overruled, (the late Hon. W. D. Boyle,) the exceptions were overruled, and the action sustained under the authority of the article of the codé which relates to quasi-offences, and also under article 21 of the Civil Code, which authorises the judge to proceed and decide according to natural justice and usage, where there is “ no express law.” In the elaborate opinion of his honor, overruling the exceptions, (to be found at page 8 of the record,) the court says : “ The principle of jurisprudence recognised by all civilized nations, that courts of justice afford a remedy to every wrong is recognised by our code.’ Article 2294.”
    The proposition here laid down by the court, although it may be true as a general proposition, is certainly subject to a great many exceptions, and, in its practical application, is made to depend upon a variety of conditions which have been annexed to it by the laws of the State, and universally recognised by the courts. In the case referred to (in the 4th L. R. 377,) in which Judge Martin delivered the opinion, a part of which has already been cited, the plaintiff claimed damages for a breach of a verbal contract of sale of a tract of land: but his action was not sustained simply because the contract had not been clothed with the forms prescribed by the law for such contracts; and yet a “ wrong” had evidently been committed, and damage done to the plaintiff; at least, the verdict of the jury and the opinion of the judge a quo were in his favor. To this maybe added numerous cases in which damages are claimed, but which are not allowed, not because a wrong may not have been committed, but because the party complained of has not been “ put in mora that is, the state of facts to which the law authorizes the application of the judicial remedy, has not been presented by the party seeking redress. ' To apply, therefore, the article 2294 of the Civil Code to a case like the present, upon the ground “ that courts of justice afford a remedy to every wrong,” would be to disregard those articles of the code which expressly and positively declare the cases in which damages resultfromthe inexecution of obligations.” See C. C. art. 1924. And,although it might seem (to those who know nothing of the facts of this case,) a reproach upon our jurisprudence to say that “ for him who had violated a pledge so intimately associated with much that constitutes the great happiness of our being, there was no retribution, and that there exists no redress under our laws for the helpless and trusting victim of his faithlessness;” yet, it is a sufficient answer to this argument, it is believed, to say, that it is the part and province of the law-maker to provide a remedy, and of the “ courts of justice” to apply it. It might, indeed, seem “ a reproach upon our jurisprudence,” that there should be found in our Civil Code an article which declares that “ the law considers marriage in no other view than as a civil contractand yet, “ Sic lex scripta esl,.”

    The plaintiff’s demand is, it is believed, as little sanctioned by the universal sense and sentiments of the better part of society in the State of Louisiana, and especially in the community in which it originated, as it is believed to be by the laws of the State. In proof of which, it may be sufficient to observe, that the plaintiff may be regarded as the pioneer in this field of legal adventure and enterprise: no such, demand ever having been presented before this honorable court, since the organisation of the Government of Louisiana, until the present time. Whether the non-appearance of such litigants before the court of Louisiana, is to be regarded as a reflection upon the jurisprudence of the State, or as a proof that such demands are repudiated by the universal sense and feelings of the fair daughters of Louisiana, suffice it to say, that the plaintiff has been the first of her sex who has presented her bundle of love letters, claiming at the hands of the public justice, pecuniary compensation for an alleged breach of “ a promise to marry.”
    To repel her demand, the defendant has found it necessary (under the decisions of the district court,) to expose the character of the plaintiff, by the exhibition of facts, which nothing but the unquestionable sources from which they have been derived, and the unimpeached and unimpeachable character of the witnesses who have testified to those facts, would have reconciled the defendant’s counsel to the task of spreading upon the records of this or the inferior court, and not one of which had ever been exposed to the public by the defendant prior to the institution of this suit, and but for which, he, as well as his counsel, would have preferred should have passed into oblivion.
    In the investigation which is now proposed, the attention of this honorable court is prayed to the following propositions : 1st. The evidence adduced upon the pai't of the plaintiff does not establish the contract for the alleged breach of which damages are claimed. 2d. The evidence adduced upon the part of the plaintiff does not establish a breach or violation of “ a promise to marry” on the part of defendant. 3. The evidence adduced upon the part of the defendant, fully establishes the facts set forth in his answers, and which have been specially pleaded in defence of plaintiff’s demand.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff claims from the defendant $20,000 damages for a breach of promise of marriage. The defendant admits that he corresponded with the plaintiff upon- the subject of marriage, but that he desisted, and had a right to desist from his addresses, before any reciprocal engagement was made, because he found her character to be such as to render her unfit to become his wife and the step-mother of his children; that by unchaste and unladylike conduct she had fallen into disrepute.

The jury found a verdict for $1000 in favor of the plaintiff. An unsuccessful motion was made for a new trial, and the defendant has appealed.

Our attention will first be directed to the question, whether such an action can be maintained under our laws and jurisprudence. In its consideration it is not improper to notice bi-iefly the history of the law on this subject.

The usage of sponsatia or promises of marriage among the Romans was of very ancient origin. It was observed among the people of Latium. It is spoken of in the Theodosian Code, in Justinian’s, in the decree of Gratian, &c. See Merlin Repertoire, verbo Fiangailles. Pothier’s Pandects, book 23, title 1. If the promise was not fulfilled, an action was permitted. Judex quam ob rem data acceptare non esset uxor qucerebat. Si nihil justa3 causte videbatur litem pecunia sestimabat; quanti que interfuerat earn uxorem accipi aut dari, eum qui spoponduat aut qui stipulatus erat condemnabat. Ib. art. 1, See also Mackeldy, Droit Romain, 263. In his Treatise on Marriage, Pothier says that the usage of Fiancailles existed among the Greeks, and, as it would seem, among the Ancient Hebrews. Under the Spanish law we find that the ecclesiastical tribunals would take cognisance of a breach of promise, and punish the party until he consented to fulfil the promise. Partida 4, tit. 1, law vii. Ca los que prometen que casaran uno con otro, tenudos son de lo cumplir ; fueras ende si alguno dellos pusiessó ante si escusacion alguna derecha, a tal que decriesse valer. E si tat escusa non ouiesse, puedenlo apremiar per sentencia, di Santa Eglesia, fasta que lo campla.

In France, a reciproca] promise of marriage is considered as producing a reciprocal obligation to contract a marriage. But if one of the two fiances refuses to accomplish the promise, neither the ecclesiastical nor lay tribunals can constrain a specific performance. The obligation resolves itself into damages, upon which a civil tribunal can alone decide. And these damages are assessed with reference to the actual injury which the party has sustained, and not to the advantage which she has lost. Ces dommages et intéréts s’estiment en egard au prejudice reel que l’autre fiancé a pu sbuffrir, et non pas en agard & l’avantage quil put perdu. Merlin, verbo Fiancailles. See also Pothier Traite du Marriage, No. 53, &c. The former author observes, thatthe Civil Code, by its silence on the subject of Fiancailles, leave them in the general category of contracts, and that they are consequently submitted to the rules of ordinary agreements. Ib. § 11. In England, formerly, it would seem thatthe contract could be enforced in the spiritual court; and it is well settled under the common law, that an action will lie for the violation of such an executory contract per verbal de futuro, for the temporal loss to the party; and though the party had a remedy in the spiritual court. Under that system it appeal's that the man also has his action of damages for the breach of promise. Bacon’s Abridg, verbo Marriage, B.

The district judge was of opinion that a promise of marriage ought not to be placed beyond the pale of legal obligations. Although he could discover no warrant for the action in express legislation, he found it in the 21st article of the code, which declares that in civil matters Where there is no express law, the judge is bound to proceed, and decide according to equity, on the broad principle of justice embodied in the art. 2294, and in the example of other civilised nations. "We are not prepared to say that we should not have concurred with the decision of the district judge, even if there were no other reasons for maintaining it than those which he gave. But our legislation has not left this matter in doubt. The article 1928 C. C. speaks expressly of a promise of marriage. It is there treated as a contract, and a measure of damages for its breach is given.

We also concur with the district judge in the opinion that it is not necessary, for the validity of such a promise, that it should be in writing. The code prescribes that every matrimonial agreement must be made by an act before a notary and two witnesses, and that the practice of marriage agreement under private signature is abrogated. Art. 2308. We consider this as applying not to promises of marriage, but to what is called, in common parlance, a marriage contract: a contract by which the future husband and wife regulate their conjugal association in relation to property. This is obvious from the first article of the chapter in which the provision just cited is found. The promise of marriage is left, we conceive, as to the matter of form and proof, upon the footing of an ordinary agreement. Such was the case in the Roman law. Sufficit modus consensu ad constituenda sponsatia. Hinc in sponsalibus nihil interest atrum testatio interponatur, an aliquis sine scriptura spondeat. Pothier, Pandects, lib. xxiii, tit. 1, de Sponsalibus. Mackelday, Droit Remain, 302. In France, says Merlin, promises of marriage differ from marriage in this: that they may be made in the form common to all synallagmatic contracts; while the marriage can only be contracted in the presence of the proper public officers. Verbo Fiancailles, § vii. It seems that in some part of France there was formerly a statute requiring such promises to be in writing. We know of no provision of our law controlling the forms of such an agreement.

As regards the proof of the agreement, the jury was satisfied that it was made; and we think the evidence justified them in that conclusion. The repeated offers of marriage made by the defendant are conclusively shown by several letters addresed by him to the plaintiff. It is true, that an agreement to many, like any other, requires for its existence the mutual consent of the parties. There must be a promise by the one and an acceptance of that promise by the other. But it is not indispensable that the proof of acceptance should be direct. The jury had a right to infer the plaintiff’s acceptance from circumstances, such as the conduct of the parties towards each other. See Daniel v. Bowles, 2 Carr & Payne, 553.

There is no doubt that if the defendant had proved the matters set up in his answer it would have legally excused his breach of promise. What was said by a great lawgiver of ancient times is equally true in our day. In the language of Solon, “marriage shoujd be regarded as an honorable fellowship and society in order to raise subjects to the State; to make the married pair live agreeably and harmoniously together, and to give continual testimony of mutual love and tenderness to each other.” Such results could not be expected from a marriage with a woman of unchaste character; and on no principle of public policy or justice, could a man be held to a promise made to such a person. We would even go further and say, that a man who had promised marriage, should be excused from his promise if he could show that the general reputation of the other party was bad, even without proving that such general reputation was well founded ; especially if he made the promise in ignorance of that reputation.

Butin the present case the defence is not made out to that extent. Although a few persons appear to have thought unfavorably of the plaintiff, there is a great deal of testimony the other way. There was also testimony going to weaken the effect of what was said by some of the defendant’s witnesses; and it is particularly to be observed that the defendant was aware of the disparaging rumors which had been circulated about the plaintiff, and declared them unfounded. In a letter pressing his suit, he expresses a fear that she might be influenced by • rumours circulated about himself, and urges her not to regard them. “ I hope you will not listen to such advisers; you know that you have been slandered, and it only served to strengthen my affection for you. You know how to sympathise with me.”

We consider the plaintiff’s character as distinctly put at issue before the jury, and great diligence appears to have been used by the defendant to collect evidence. The testimony in this cause is extremely voluminous; it has received our careful perusal; and we do not feel authorised, after considering it minutely, to disturb the verdict, which vindicates the plaintiff’s reputation.

It is proper to observe that there were numerous exceptions to the admission of evidence, and also to the charge of the judge. Some of the former were well taken ; and there are portions of the charge which are not .free from objection. But if we were to strike from the record all the evidence unduly received, there would be still enough to sustain the verdict; and we do not think there is any reasonable ground to suppose -that the cause, if remanded, would terminate more fiivorably to the defendant.

Under the evidence, we are not prepared to say that the amount allowed by the jury is excessive.

In conclusion, we may take occasion to observe, that this is the first time we or our predecessors have been called .upon to consider an action of this kind. It is a fact creditable to our people; and we hope that such actions may not become frequent. While we are bound, under our jurisprudence and code, to recognise the right of action, we are constrained to say that a female of refined sensibility could scarcely bring herself to such a suit; and that the appeals which are usually made to juries in such cases, on the score of the wounded affections of the woman, can have little foundation in truth. Such suits are notunfrequently the mere instruments of extortion; courts and juries should, therefore, cautiously restrict relief to cases of real injustice.

Judgment affirmed, with costs.

Rost, J.

dissenting. I am of opinion, that the plaintiff has not proved the contract, for the breach of which she claims damages. Where a contract is attempted to be proved by presumptive evidence, the question whether the facts proved establish its existence, is not purely a question of fact, and the verdict of the jury has not the authority usually given to verdicts on questions of fact.

The testimony of Russell, upon which the plaintiff mainly relies, is incomplete and unsatisfactory. The plaintiff had it in her power to complete it by producing that portion of the .correspondence of the defendant to which the witness refers ; qad as she has not done so, the presumption is, that the letters, if produced, would have been to her disadvantage.

On the 27th February, 1844, no contract existed ; and she shows no communication with the defendant after that time. It appears that the defendant married another person in the month of May following, and that a few weeks before this marriage the plaintiff came to New Orleans, and told the keeper of the house where she stayed that she had come to buy her wedding dresses. This witness also states, that she bespoke rooms in the house for the celebration of the marriage. All this occurred at a suspicious time, and I attach no weight to it. I believe the plaintiff was sincere, when she said that she would not many the ignorant old fool, unless he made over to her a certain sum of money ; and that, in fact, she would not marry him even then. There is nothing in the record to satisfy me that she ever changed her mind.

I am of opinion that the case should either be decided in favor of the defendant, or remanded.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    The State v. William K. Stiles.
    An indictment under a fit at ate ought with certainty and precision to charge the defendant with having committed or omitted the acts under the circumstances, and with the intent mentioned in the statute; and if any one of those ingredients be omitted the indictment is not good.
    The use of general terms in an indictment under a statute for a specific offence, do not cure a defective description in which the facts constituting the offence are not set forth. If the facts alleged do not make out the case, the indictment is defective.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Wm. A. Elmore, Attorney General, for the State,
    contended: The defendant was indicted for .embezzlement, under the act of 1844, (page 79 Session Acts,) entitled “An act to secure the collection, safe keeping and disbursement of the revenue of the Stale, and to prevent the embezzlement of the public money.” He was convicted; and having moved in arrest of judgment upon the ground that the indictment was defective, which motion proving unsuccessful, he has appealed to this court.
    Several objections are taken to the sufficiency of the indictment, but all may be treated of under one head. Is it sufficient in law to enable the court to pass judgment upon it ?
    1st. The rules of pleadings are the same in civil and criminal cases. 1st Chitty, 168, 169. United States v. Brown, 3 McLean 233. 2d. The indictment upon which the prisoner was tried and convicted has all the requisites of a good indictment. It is “certainty, to a certain intent in general.” Archbold’s Criminal Pleading, 53, 54. 1 Chitty, 168, 169,170, 171,172, 229. 3d. In an indictment, certainty to a common intent is sufficient. So held in Common-wealthy. Dedham,, 16 Mass. 141. United States v. LaCoste, 2 Mason 140. 4th. It is not, in general, necessary in an indictment for a statutable offence to follow the exact wording of a statute. It is sufficient, if the offence be set forth with substantial accuracy and certainty, and certainty to a reasonable intendment. United States v. Batchelder, 2 Gall. Rep. 437. State v. Hickman, 3 Halstead Rep. 299. Stater. Little, 1 Vermont Rep. 331. 6 Vermont Rep. 594. State r. Vanderlip, 4th Ann. 444.
    For the form of an indictment for embezzlement, the court is referred to Archbold’s Criminal Pleading, 338, 339, 340, 341, 342.

      J. C. Larue and P. W. Farrar, for the defendant,
    contended: The counsel for the accused present to the consideration of the court the following points in support of this appeal: 1st. The rules by which the tribunals of this State are to be guided, in the absence of positive legislation directing their practice, is the Common Law of England; which common law can be gathered best, if not exclusively, from the decisions of the English courts. In cases of embezzlement, under the act of ’39, Georg III., an act, similar in principle to the act of March 25th, 1844, it was held to be essential, for the validity of the indictment, that it should contain a specific averment of the ownership of the property. Chitty, part 2, vol. 2, p. 980 etseq.; and the case of M’Gregor, in 2 Russell on Crimes, 1234, 1235. To the latter case, which settled the law upon this point, we ask the particular attention of the court, inasmush as the words used in that indictment and the present one are exactly the same, and the court held that they were insufficient as an averment of property, although they followed the form of the statute. In the present case they do not follow the form of the statute, and of course are liable to the same objection, without any circumstances of extenuation. 2d. The rule laid down by the Court of King’s Bench in the case of Rex r. Pemberton, decided in 1760, and reported in 2 Burrow’s Reports, 1027, is in these words : “Indeed, where the words of the statute are descriptive of the nature of the offence, or the purview of the statute, or necessary to give summary jurisdiction, there it is necessary to specify in the particular words of such statute.”
    In Hawkin’s Pleas of the Crown, vol. 4, p. 67, the court will find it laid down as a genera] rule, supported by ample citations of cases adjudged, “that unless the statute be recited, neither the words contra formam statuti, nor any periphrasis, intendment, or conclusion, will malte good the indictment, which does not bring the fact prohibited or commanded, in the doing or not doing whereof the offence consists, within all the material words of the statute.” We might cite numberless cases in which this doctrine has been held. We will refer, however, only to the Commonwealth v. Boyar, 1 Binney, 201; and Spangler r. The Commonwealth, 3 Binney, 533; but the doctrine is so well settled as the rule of the English Common Law, that it would subject one to ridicule to question it.
    Now what are the “material words” of the act of 1844; they designate the actor, the act, and the object of the action. The actor is “any officer of this State, or any other person;” the action is “to convert to his own use, in any way whatever,” &e.; the object of the action (as essential to constitute the crime of embezzlement, as a human being killed is to constitute the crime of murder) is “any portion of the public money which he is authorised to collect, or which may be entrusted to his safe keeping or disbursement.” The monies designated are public monies. The expression “public money” is used three different times in the first section of the act, and once referred to as “said money;” and the “public money” which may form the object of the embezzlement, is public money of a particular kind; that which the officer or other person is “authorised to collect,” &c. Now, the statute of 1844 is “descriptive of the nature of the offence,” for the words which we have cited, and none other, create the offence. Then it is necessary that the indictment “should specify in the particular words of such statute,” or at least without “any periphrasis, intendment, or conclusion,” bring the act complained of “within all the material words of the statute.” Yet the court will find on an examination of the indictment, that not only are the “particular words” of the law omitted; the “material words” altogether disregarded; but that they are expressed by no “periphrasis,” they can be supplied by no “intendment,” and that they cannot be formed by any logical “conclusion” from the words and phrases used.
    It has been contended, that in the case of The Stater. Vanderlip, lately decided by the Supreme Court, a different doctrine has been established. We cannot so understand that decision. The words of the opinion delivered in that case are, “although in general it is necessary to use the precise technical expressions of the statute in describing the offence, a variance which does not alter the sense of a material part of the statute will not vitiat.e the indictment.” If this dictum does not support us in the application now made, we cannot understand the force of language. We do not chaige that the indictment against Stiles contains a “variance which does not alter the sense of a material part of the statute,” but that it does not contain the “material words” of the statute at all. The statute by its title purports to be one “to prevent the embezzlement of the public money.” The statute by its word makes the converison to his own use, by any officer of this State, of the “public money which he is authorised to collect,” a felony. The whole tenor of the section relates to “public money,” as contra-distinguished from every other kind. These words are the “material words” of the act; yet they are not to be found in the indictment at all.
    3d. By the provisions of the statute under which this prosecution is instituted, the measure of the punishment is made to depend on the amount of the “public money” embezzled ; and it is, therefore, necessary that the indictment should distinctly present that the party accused had been guilty of embezzling a specific amount of the public money, and the jury should find the amount in the verdict. Neither of which was done in the present ease.
    There are other matters, which counsel will present orally to the court, sufficient to show that the judgment in the present case must be reversed.
   The judgment of the court was pronounced by

Eustis, C. J.

The case is fully stated in the opinion of Judge Preston. We aie not disposed to differ with the views expressed by him in relation to the law, but cannot concur with him in the construction which he puts upon the indictment. An indictment under a statute ought with certainty and precision to charge the defendant to have committed or omitted the acts under the circumstances, and with the intent mentioned in the statute ; and if any one of these ingredients in the offence be omitted tho indictment is not good.

In the statement of the offence in this indictment we do not find the offence charged in confirmity with these requisites. There is no charge whatever of any neglect or refusal to pay over, on demand, any money received by him as tax collector, in the manner prescribed by law, nor of his having neglected to exhibit his accounts to be audited and settled, as the law requires, nor of any demand made on him so to exhibit them, or to pay over to the treasurer the public money received by him as tax collector. Nor are any facts of loan, investment, conversions, or use, of the money collected by him, charged in the statement of the indictment, except those of having collected the taxes, and paid over portions at different times, leaving a balance due the State of Louisiana of monies collected by him, the said William K. Stiles, as Collector of State Taxes for the Fourth Representative District of New Orleans as aforesaid, amounting to the sum of twenty-eight thousand seventy-nine dollars and forty-nine cents; for which amount he is a defaulter.

The charge of this balance being due the State by him as stated, we think is not a proper decription of the offence under the statute; nor do we think this defective description is aided by the use of the term defaulter, as applied to the balance so due.

We do not understand the ttse of general terms in an indictment under a statute for a specific offence, as curing a defective description, in which the facts constituting the offence are not set forth, any more than an indictment for larceny would be aided by the defendant being called in it a thief.

The commencement of the indictment alleges, that the defendant did convert to his own use the sum, &c. The charge is then limited by the words following, for this: heretofore, to wit: That, &c. Then comes the statement, and if it does not by the facts alleged make out an offence under the statute, the indictment is necessarily defective. This was understood to be conceded by the learned counsel who argued the case on the part of the State.

We do not understand the charge of embezzlement at the conclusion of the indictment as having any effect upon the defective statement of the offence.

When the words of a statute are not used in an indictment for an offence under it, the question necessarily arises as to the meaning of the words used —an enquiry resting frequently in mere verbal criticisms, difficult and uncertain, as well as unsatisfactoiy in its results' — a work which courts may easily be spared by an adherence to the words of the law itself, and those which practice and experience have determined to be sufficient and appropriate.

The statute of 1805, regulating proceedings in criminal cases, provides that the forms of indictment, (divested, however, of unnecessary prolixity,) and all other proceedings whatsoever in the prosecution of crimes, changing what aught to be changed, should be according to the common law.

In the case of The Territory v. Nugent, 1 M. R. 172, this statute was fully considered by the late Supreme Court; and the views expressed by the court we believe have been acted upon by our courts in criminal cases ever since. That statute furnishes a standard by which the forms of indictment are to be judged, according to the rules which we have considered as established by courts in which criminal proceedings are conducted according to the common law. We understand that indictments for offences created by statute must describe the offence in the words of the statute, or in words certain and equivalent. Any departure from these rules, we think, produces confusion, and may often lead to injustice to the accused, and tends inevitably to embarass and defeat the administration of justice.

By reason of the insufficiency and Want of certainty in the statement of the offence charged in the indictment, it is considered by the court, that the judgment against the prisoner be arrested, and the proceedings be set aside, the judgment of the district court being reversed.

Preston, J., dissenting. The defendant has been prosecuted, convicted and sentenced, for a violation of the statute approved the 25th of March, 1844, “to prevent the embezzlement of the public money.”

His counsel moved to arrest the judgment of the court upon the verdict rendered against him, upon the following grounds: 1st That the indictment upon which he was tided did not set forth any ownership of the money which he was charged with having embezzled; and is, therefore, so defective and insufficient that no verdict of guilty or sentence of condemnation can properly be founded upon it. 2d. That the indictment does not charge any offence designated by the act of March 25th, 1844, upon which the prosecution pretends to be based, but charges this defendant with converting to his own use “ money collected and received by him for the State of Louisiana, and not with converting to his own use “ any portion of the public money which he was authorised to collect,” in the manner and substance as set forth in said act, and as by law required; and that, therefore, no judgment can be properly redered against him in the premises.

The district court overruled the motion in arrest of judgment. The defendant took an appeal to this court; and his counsel has urged the same grounds in this court for the reversal of the judgment against him, and cited in support of them many authorities.

Two hundred years ago the great and good Lord Hale observed : “ that the strictness required in indictments had grown to be a blemish and inconvenience in the law, and the administration thereof; that more offenders escape by the over easy ear given to exceptions to indictments than by the manifestation of their innocence ; and that the greatest crimes had gone unpunished by reason of these unseemly niceties.”

An indictment must undoubtedly contain a certain description of the crime of which the defendant is accused, and statement of the facts by which it is constituted. The leading objects of this certainty are that the defendant may know what the crime is with which he is charged; that the jury may find the accused guilty or not guilty of facts which clearly constitute a violation of law; that the court may see such a definite offence established on record; that it may apply by judgment the punishment which the law prescribes; and thatthe defendant’s conviction or acquittal may insure his subsequent protection against another prosecution for the same offence. If there be that reasonable certainty in the matter charged and the manner of charging it, which will insure all these objects, the indictment should be maintained.

By the 62d section of the act under which the accused was uppointed, it is enacted, “that on or before the first Monday in December annually, the several tax collectors shall exhibit their accounts to be audited and settled; and if any tax collector shall neglect or fail to pay the amount found due into the treasury, and obtain the treasurer’s receipt therefor, within thirty days after the above required settlement,” he is styled, by the 63d section of the act, a delinquent.

The statute under which the defendant is prosecuted, enacts : “ That if any officer of this State, or any other person, shall convert to his own use in any way whatever, or shall use, by way of investment in any kind of property or merchandise, or shall loan, with or without interest, or use in any other manner than as directed by law, any portion of the public money which he is authorised to collect, or which may be entrusted to his safe keeping or disbursement, or for any other purpose, every such act shall be deemed and adjudged to be an embezzlement of so much of the said money as shall be thus taken, converted, invested, used or loaned, which is hereby declared to be a felony; and the neglect or refusal to pay over, on demand, any public money in his hands, in the manner required by law, shall be prima facie evidence of the conversion and embezzlement of the public money in his hands; and any officer or other person, and all persons advising, or knowingly and willfully participating in such embezzlement, shall pay a fine equal to the amount of money so embezzled, beside restoring the same, and shall be imprisoned in the penitentiary at hard labor for a term not less than six months nor more than five years.”

It would, undoubtedly, have been better if, in the prosecution of the accused, the indictment had followed the very words of the statute in the general description of the crime; and in charging the facts, make the plainest averments in the shortest and most simple language. This was the object which the Legislative Council of 1805 intended to attain, by providing that “the forms of indictments (divested, however, of unnecessary prolixity,) and all other proceedings whatsoever in the prosecution of crimes, changing what ought to be changed should be according to the common law.” But it is perfectly settled in this country and in England, that it is not necessary in an indictment for a statutable offence to follow the exact wording of the statute, but it is sufficient if the offence be set forth with substantial accuracy and reasonable certainty. Archbold, 24. The United States v. Batchelder, 2 Gallison’s Rep. 18.

The indictment sets forth with minute accuracy, that Styles was a public officer, to wit, the Tax Collector of the Fourth Representative District of New Orleans, duly appointed, qualified and authorised to collect the taxes of the district for the year, 1848. It avers that $42,132 were received and collected by him as Collector of State Taxes for the Fourth Representative District of the parish of Orleans.

The objection to the indictment is, that this averment does not describe the money “ as a portion of the public money” in the words of the statute, nor show that it belonged to the State of Louisiana.- But it is n rule of criminal pleading, that presumptions of law need not be stated, nor conclusions of law resulting from the facts of a case. It suffices to state the facts, and leave the court and jury to draw the inference. 1 Chitty, 231. 4 Maule & Selwyn, 105. 2 Wilson, 147. Russell & Ryan, C. C. 488. 5 Leach, 591.

The collection of money as collector of State taxes raises the legal presumption that it belongs to the State of Louisiana, and is- public money. It negatives the possibility that it belongs to any other owner than the State of Louisiana, or that it is not public money. The statute which created the office charged the tax collector with the collection of money for the State alone, and not for any other owner. It became public money in' his hands, and could not belong to individuals or corporations (as supposed in argument) until first deposited in the State treasury and afterwards paid out in pursuance of appropriations made by law.

The indictment proceeds to state that the accused paid certain sums into the State treasury, “leaving a balance due the State of Louisiana of moneys collected by him as aforesaid, amounting to the sum of $28,079 49, for which amount he is a defaulter.” The averment would have been more certain if ithad stated that the accused did not pay said balance into the State treasury. But the term defaulter is a common law term, and signifies one who is deficient in his accounts. See Bouviers’ Dictionary. As applied to a tax collector, the term describes one who does not have his accounts audited, and pay over the balance in his hands as required by law. The statute creating the office of tax collector styles such a one “delinquent;” using a general term synonymous with that used in the indictment. The failure to pay the balance into the State treasury is therefore sufficiently averred by the allegation, that for the balance due the State of Louisiana the accused is a defaulter. It is true, he might have been a defaulter by accident or by the default of an agent for whom he was responsible civilly, but not criminally. But it is to be considered that, in addition to all the specific averments, the indictment charges in the commencement that the accused “converted to his own use $28,079 49, money collected and received by him for the State of Louisiana, as collector of State taxes ;” and concludes by charging him generally with embezzlement. And, upon the whole, I think the crime is sufficiently charged in the indictment, both as to matter and manner.

It is urged with more reason, that the verdict is nugatory. The jury found a general verdict of guilty, without specifying any amount embezzled, whilst the statute, in addition to imprisonment in the penitentiary, subjects the offender in all cases to restore the money embezzled, and to pay a fine equal to the amount. The extent of the punishment depends upon the extent of the embezzlement, and yet the juiy found no sum embezzled.

In a civil case, where the amount of the verdict depends upon evidence not in the record, a general verdict for the plaintiff is not aided by reference to the petition or declaration. And we have not been able to find any precedent in a criminal case where the extent of the punishment depends upon the amount of money feloniously stolen, received or embezzled, And no specific amount is found by the verdict, in which the court has inferred the amount from the indictment. It is impossible for us to say, from the verdict alone, that the jury found that the accused embezzled the whole amount stated in the indictment.

It has been urged on behalf the State, that the accused was certainly found guilty of embezzlement, and was at least properly sentenced to imprisonment in the penitentiary, although the court should be of opinion that the pecuniary punishments ought not to have been inflicted.

The statute subjects the crime of embezzlement in all cases to pecuniaiy penalties as well as imprisonment in the penitentiary. A single crime is charged, for the commission of which the statute inflicts upon the offender three distinct punishments: imprisonment in the penitentiary, fine, and restoration. Enough must be found by the jury to enable the court to inflict each of these distinct punishments. 2 East. Pleas of the Crown, 708, 784. 2 Strange, 1015.

The finding of the juiy is nugatoiy. It is clear they did not intend to acquit the prisoner; and yet they did not find enough to subject him to the penalties prescribed by law. Where a verdict is so imperfect that no judgment can be rendered upon it according to law, a venire facias de novo may be awarded, at least in cases not capital. See the case of The King v. Woodfall, 5 Burroughs, 2662.

In my opinion, the judgment of the district court ought to be reversed, and the case remanded with directions to the district court to set aside the verdict and order a new trial.


author: Preston, J.

text:
    The State v. John Cummings.
    The prisoner is entitled to the assistance and benefit of the advice of his counsel in exercising his right of challenge of jurors.
    In the trial of criminal cases, the State should first exercise the right of challenge, whether for cause or peremptorily, and cannot do so after the prisoner has accepted the juror.
    In prosecutions for homicide, the place of the death must be stated in the indictment; and so even where the mortal blow was given in one parish and the deceased died in another parish.
    APPEAL From the First District Court of New Orleans. McHenry, J.

      Isaac Johnson, Attorney General, for the State,
    contended: 1st. Prisoner was denied the privilege of consulting with'his counsel in selecting his jury; nothing to urge in defence of that point. State Constitution, ait. 187, art. nxx, 51 Rob., Penal Law.
    2d. Whether the State is bound to take initiative in accepting and challenging jurors. Acts Leg. 7th March, 1837. Bacon’s Abridgement, Head Juries, division 10, Challenges by the king. In the First District Court the practice had always been as the judge ruled, and the question of an adverse practice was indirectly and irregularly raised — not a ground for a new trial. Wharton, 671.
    3d. How far juries have control over the law in criminal cases. The judge charged the jury that they were judges of the law and the fact to the extent laid dowu in the decision of Judge Story in the case of The United Stales v. Baptiste, 2 Sumner, 243. See also, Whorton, 640. Comm. v. Knapp, 10 Pick. 576. United States v. Wilson, 1 Baldwin, 99, 109. United States v. Shihe, 1 Baldwin, 512. JR. v. The Dean of St. Asaph, 21 How. S. T., 1039, 1040. Hargrave’s note to Co. Lit. 1515. The authorities pro and con are numerous.
    Motion in arrest — the piace where the deceased died, not laid down in the indictment — true in fact. By the common law in Lord Hale’s time, place as well as time, was necessary to be alleged, in favorum vita, in all indictments for capital offences. 2 Hale, 178. Archbold, 36. In homicide, time, in order that it may appear that the death was within a year and day after the mortal wound. 1 Russel, 394, 443. 1 Chit.fy, 222. Place was required to show jurisdiction. But at Common Law before 2 and 3, Edw. VI, when an offence was commenced la one county and consummated in another, the venue could not be laid in either. 1 Chitty, 177. And so, if a mortal wound was given in one county and the party died in another the offender could not be indicted in either. The venue, therefore, both ns to the wound and the death, was a matter of substance. The evil of the Common Law doctrine was partially remedied by Act 2 and 3 Edw. VI, which required the venue to be laid where the party died. 1 East. 361. Under this statute, venue, as to the death, to show jurisdiction was material. But now, by 7th George IV, the venue, in all cases when the offence is begun in one county and completed in another, may be laid in either county. Archbold, 22, 16th Exception. In this State, an offence thus begun and consummated may be tried in either parish, as if it had actually and wholly been committed there. Bullard & Curry, 280. Act 9th March, 1836.
    This being the state of the law' here and in England, the place of death, in the case at bar, is not a material fact to be shown by the indictment. It would have been material to show jurisdiction if the deceased had died in another parish, and the defendant had there been prosecuted for the offence. In such a case, venue, both as to the blow and the death, are necessary to show that the blow was not given out of the State. But when the mortal wound is given in a parish in this State, and the indictment shows that fact and that the deceased died within a year and day of that wound from the time of infliction, the place of death is not necessary to be alleged in the indictment when the mortal stroke was given in this State, and the death occurred in another. 8 R. R. 546.

      R. Hunt, for defendant,
    to show that the place of the death of the party killed should be stated in the indicment, cited: Archbold Crim. Plead. 36. R. v. Holland, 5 T. R. 607. R. v. Aylet. 1 T. R. 69. R. v. Haynes, 4 M. & S. 24. Comyn's Dig. G. 2. Dyer, 28. Hale, 178. Iieil, 100. 2 Hawkins, C. 28, s. 88; also C. 25, s. 83. Stark Cr. PI., 62, 63. Stale v. Kennedy, 8 R. R. 600. 1 Chitty, 218, 219. To show that the prisoner was entitled to the aid of his counsel in exercising his right of challenge: 4 Black. Com. 355. Story on Const. 665. Rawle on Const. 128. Constitution of Louisiana, art. 107. 1 Wheat. Cr. C. 312. To show that the State must exercise the right of challenge first, and not after the prisoner had accepted the juror : 3 Thomas’ Coke, 515. B. & C. Dig. 281.
   The judgment of the court (Rost, J. being absent,) was pronounced by

Preston, J.

When the jury were about to be sworn in this case the counsel of the accused applied to the court to be allowed to consult with and aid him in the exercise of his right of peremptory challenge. The court refused to allow it, and compelled him to exercise that right without the benefit and assistance of counsel.

The 107th article of the Constitution guarantees the right of persons accused of crimes of being heard by counsel. A similar provision in the Constitution,of the United States and of the several States has, .as far as we can learn, been liberally construed to mean the right of being aided by counsel in every step and stage of the prosecution.

The first Legislative Council that assembled in .the Territory of Louisiana enacted “that every person accused and indicted shall be admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall immediately upon his request assign to such person such counsel as such person may desire, to whom such counsel shall have free access at all seasonable hours.” This law has remained unaltered ever since, and the lapse of nearly half a century has sanctioned its wisdom.

It was a reproach to the Common Law of England that prisoners were not allowed the aid of counsel when accused of crimes. Their ignorance and timidity when prosecuted by the high officers of government, their want of self possession when life and liberty was put in jeoparty, rendered them incapable of defending themselves, and often the greatest injustice and oppression occurred. This lead to the guarantee of the right to counsel in our liberal constitutions, and the right should be liberally construed.

The moment at which perhaps it is most seasonable and necessary that a Persotl accused of a crime should have aid and counsel, is that when he is about to be put upon his trial for the offence, and to select the jury for his trial.

A good counsellor in criminal cases studies the book of man as thoroughly as the statute book, and by that study qualifies himself to aid his client in the selection of the jury to try him as much as by the discharge of his other duties. His better knowledge of men, and better acquaintance with the character, feelings, pursuits, connexions and other relations of those whom chance places on the panel is an advantage of which his client should have the benefit in making his challenges, since no law prohibits it. We think, therefore, that the court erred in prohibiting the counsel of the prisoner from aiding him in making his peremptory challenges.

A member of the panel was called to the book to be sworn; he was not challenged by the State; was accepted by the accused; and when about to be sworn was peremptorily challenged bjr the attorney general. The counsel of the accused objected to the challenge, because the State is bound to exercise its right of challenge first, and cannot exercise the right of peremptory challenge after the accused has accepted the juror.

The right of the State .to challenge six jurymen wi,tho,ut showing any cause was first accorded by an act approved the 7th of March, 1837. The act does not fix the time of exercising this right, and this court has not heretofore been called upon to express an opinion as to the proper time of exercising the right. As it is a question of mere practice which has not yet been fully established its decision cannot affect this case. But, that uniformity may exist in the practice, we will express our opinion that the rule adopted by statute in the State of Mississippi is the most eligible rule, and that which would have been adopted by our Legislature had the subject been brought to their notice. It is provided by statute in the State of Mississippi ‘.‘that all peremptory challenges by the State shall be made before the State presents the juror t.o the prisoner, and not afterwards.”

It seems to us most proper that the State should first exercise the right of challenge for cause, or peremptorily, and present the juror to the accused as a good and lawful juryman ; that the accused should then exercise his rights ; and that the State should not be allowed to challenge after the juror has been accepted by the prisoner.

The indictment does not set forth the place at which the deceased died, and it is moved to arrest the judgment on that ground. The place of the death should have been alleged first, to give jurisdiction to the court; for, although the mortal blow is given in one parish and the death takes place in another, and the accused may be prosecuted in either, yet it must appear that the deceased died in one of the parishes. In the case of McCoy, cited by the attorney general, the place of the death was expressly alleged to have taken place in Adams County, State of Mississippi. The place of the death must also be averred, because the averment of death is a material allegation to constitute the crime of manslaughter; and it is an immemorial and fixed principle of criminal pleading that every material averment in an indictment must be stated with time and place.

Every writer upon pleadings in criminal cases states that the place of the death, in a prosecution for homicide, must be stated. All the forms given in books of practice set forth the place of the death; and all the adjudicated cases, in which a question as to the necessity of stating the place of the death in the indictment has been raised, require it to be stated.

Among the obvious reasons rendering it necessary ,to state the place of the death, it is necessary to enable the accused to defend himself by showing, if possible, that no death occurred at the place indicated, or that another person than the one to whom he gave the blow died there, or that the one to whom he gave the blow died from another cause.

The jugdment of the district court is reversed, the judgment upon the verdict of the jury arrested, and the proceedings had in this case set aside.


text:
    The State v. Mexican Gulf Railroad Company.
    Where a party claims a privilege for materials furnished which exceeds five hundred dollars in amount, to maintain his privilege he must show that his claim was duly recorded. C. C. 3239.
    The act of 16th of March, 1848, for the purpose of distributing the assets of the Mexican Gulf Railroad Company, authorised an equitable compromise between the State and other claimants to the funds, but a compromise by which about half the funds were relinquished to one of them, who claimed only about $16,000, while the claim of the State for $100,000, was inequitable. The funds should have been divided pro rata.

    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      W. A. Elmore, Attorney General, for the State.

      C. Maurian, for opponents and appellants.
   The judgment of the court (Rost, J. being absent,) was pronounced by

Preston, J.

By an act of the Legislature approved the 12th of March, 1838, the State agreed to loan to the Mexican Gulf Railway Company her bonds for $100,000, upon the terms expressed in the act. Shortly afterwards the bonds were issued and delivered to the company, which in pursuance of the law, by a notarial act, granted the State the first lien, privilege and mortgage upon the present and future property of the company.

The road commencing in the parish of Orleans was, at the time of the loan and act of mortgage and privilege, extending through the parish of St. Bernard; the company also acquired property in that parish, and yet the State failed to record the act of mortgage and lien in the parish of St. Bernard.

The company having failed to pay the interest on the bonds loaned to them, as bound by the law and their contract, the Legislature directed the seizure and sale of their property and rights. On the petition of the Aftorney General of the State, writs of seizure and sale were issued to the sheriffs of the parishes of Orleans and St. Bernard, and on the 19th of October, 1842, the former seized all the property and rights of the defendants in the parish, including the railway as far as constructed. The sale of part of the property having been arrested by an injunction, the attorney general stayed the sale of the whole, but did not waive his seizure.

The sheriff of the parish of St. Bernard seized and sold a saw-mill erected on the margin of Lake Borgne, and the State became the purchaser.

The injunction suit was decided and settled the rights of the parties then in court, as will be seen in 3 R. R. 513.

The Legislature, then, by an act approved the 25th of March, 1844, directed the whole of the property and rights of the company to be sold in mass for not less than fifteen thousand dollars, and upon the condition that the purchaser should keep the road in operation upon the terms and conditions originally imposed upon the company by its charter; the price payable on a credit of 6, 12, 18 and 24 months.

The aM;ol'riey general applied for and obtained an order of sale in pursuance of law, and on the 30th day of November, 1844, the sheriff, by virtue of the order, sold the whole of the property and rights of the company in mass, for $15,050, on the terms prescribed.

A few days previous to the sale, Franpis Léon-, R. J. Lucros and Gustave Lucros filed oppositions to the proceedings for the sale by the State; the first two claiming the payment of judgments with the preference of judicial mortgages resulting from the record of their judgments in the parish of St. Bernard in November, 1842. The last claimed a privilege upon a portion of the road in that parish, for having furnished a large quantity of timber for its construction.

The judgments were recorded in the parish, after the seizure on behalf of the State, but before the passage of the act of 1343 extending a seizure in one parish to an entire property if it lies in two or more parishes. Previously to the passage of this act, the sheriff could only seize the part of the property situated in his parish. C. P. 643. These judgment creditors must, therefore, be preferred to the State, because property subject to their judicial mortgages in St. Bernard was not seized, and, indeed, it does not appear to have belonged to the company at the date of the mortgage given to the State.

The district judge was undoubtedly right in concluding that Gustave Lucros could not claim a preference over the State for the price of the timber furnished for the construction of the road, since the claim amounted to more than five hundred dollars, and had not been recorded as required by law to preserve a privilege. C. C. 3239. But a careful consideration of the act approved the 16th of March, 1848, leaves no doubt that the Legislature intended to afford him an equitable relief. By the third section it is enacted, that the liquidator “ shall have authority, for the purpose of distributing the assets of the Mexican Gulf Railway Company, to enter with the creditors of the same into such compromises as may effect a speedy liquidation of their respective claims: provided it be with the sanction of the court, saving and reserving to such parties as might be aggrieved the right of appeal.” This section of the act was passed in consequence of the memorial of Lucros setting forth his complaints and claiming relief. And the district court erred in supposing that the Legislature did not intend to allow relief out of the assets then in the hands of the sheriff. The company was entirely insolvent, and had no assets whatever but the proceeds of the property which the State had caused to be sold. These proceeds were still in the hands of the sheriff. For more than three years Lucros had been contending with the State for a share in them. The State, by causing the sale of the properly in mass, and imposing upon the purchaser the onerous condition that he should fulfil the terms and conditions of the original charter of the company, had pr-obably caused the creditor injury for which-he was entitled to indemnity. His claim was undoubtedly equitable, and he contended, although we .think erroneously, that he had a legal preference over the State. The act of 1848, therefore, authorised the liquidator to compromise with him under the sanction of the court.

The liquidator did so, and relinquished to him about half the proceeds of the sale in the hands of the sheriff, and subjecting the half retained by the State to the payment of the other creditors, and all costs.

We think such a compromise too inequitable to be sanctioned by the court. The claim of the State was for $100,000 ; that of Lucros for $16,297. In making an equitable arrangement, it is also to be considered, that this claim which he holds being in litigation, he purchased it at a sheriff’s sale for $300. He contends, lucrum captando; the State, damnum, vitando.

The judgments of Francois Léon and R. J. Lucros, and all costs, should be paid out of the assets in the sheriff’s hands, and the balance should be divided between the State and Gustave Lucros, in proportion to their claims.

The judgment of the district courtis reversed, and the case remanded for further proceedings according to law and conformably to the opinion of this court. And it is further ordered, that if the parties cannot compromise under the act of 1848, they must stand upon their legal rights.