text:
    The State v. Dick.
    Art. 107 of the constitution which guaranties to every person accused a speedy public trial by an impartial jury of the vicinage, does not apply to slaves.
    Slaves are treated as persons by the criminal law,
    A slave may be punished for the mur.der of another slave, under sec. 11 of the stat. of 7 June, 1806, relating to slaves ; or under ss. 1, 2, of the stat. of 7 .Tune, 1806, on the subject of crimes and misdemeanors, nothing in this last act confining it to free persons.
    Any objections to a tribunal organized under the stat. of 1 June, 1846, for the tidal of a slave, on the ground that it does not appear that the slave owners who sat on the tidal wero selected by the justices of the peace, nor by either of them, nor that the persons who sat on the tidal as slave owners, were slave holders of the parish, must be urged before the p.ersons wlio sat on the .trial are sworn, or they will be considered to have been waived.
    from a special tribunal organized under the stat. of 1 June, 1846, for tire trial of a slave, in the parish of St. Tammany.

      Elmore, Attorney General, for the State.

      A. Herman, for the appellant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Kino, J.

The defendant was convicted of the crime of murder alleged to have been committed upon the person of a slave, and has appealed from the sentence pronounced upon him. After the court, composed of two justices and ten owners of slaves, had been sworn and organized, the defendant, by his counsel, excepted to its jurisdiction, on the ground that the law creating the tribunal violated the constitution of the State, which guaranties to all 'persons an impartial trial by a juiy of the vicinage; and that the only jury known tp the constitution is one composed of twelve jurors, in the selection of whom the accused is entitled to the right of peremptory challenges. The plea was overruled, and a bill pf exceptions taken to the opinion of the court.

The 109th article of the constitution of this State is relied on in support of this position. One of its clauses provides that, “the accused shall have a speedy public trial by an impartial juiyof the vicinage.” The same provision is found in the constitution of 1812 (art. 6, s. 18), and was taken from the constitution of the United States. Art. 3, s. 2, and Amendments, art. 8. At the time that tire constitution of 1812 was adopted, the act of the 4th May, 1805 (sec. 33), introducing the common law method of trial, rules of evidence, and other proceedings in the prosecution of crimes, was in force. The 47th section of the act limited Jts operation to free persons, and declared that its provisions should not extend to slaves. There also existed a separate Code of laws declaring tire offences of slaves, and creating a tribunal for the trial of offenders, coipposed of the county judge, and not less than three, nor more than five freeholders, in capital pases.

. The tribunal provided by this act was several times modified by different acts of the legislature, commencing in 1825 and extending down to 1843; but no one of the amendments accorded to slaves a trial by juiy in the sense in which that term is used in the constitution. See Bui. & Cur. Dig. pp. 57, s. 41; 99, s. 1. Acts of 1830, p. 146, § 8: Acts of 1843, p. 91. The article of the Civil Code of 1808 which declared that the rules'for the police of slaves and the punishment of their crimes “ are fixed by special laws,” was also in force when the old constitution was adopted, and has since been incorporated into the Code of 1825. Art. 172.

Thus, from the commencement of our legislation, two -distinct methods of tria1 have existed, one applying exclusively to free persons, granting them a trial by jury, and tire other extending to slaves, to whom a juiy has been denied. This distinction existed when the constitution of 1812 was adopted and continued down to 1845, notwithstanding the article which declared that “the accused shall have' a sjjeedy public trial by an impartial jury of the vicinage.” The uniform interpretation given to that article, by the repeated legislative acts to which we have referred, and by the tribunals at different times created for the trial of slaves, has been, that it does not extend to that class of offenders. The corresponding provision of the constitution of 1845 was adopted with a full knowledge of the interpretation which it had received fore more than thirty years, and we must presume that, in adopting the language of the old constitution, it was intended also to adopt Are interpretation which it had previously received. See the cases of McKee v. Ellis, 2 An. 169, and Colt v. O’Callaghan, Ib. 190.

The act of 1846, under which the tribunal was organized for the trial of the defendant, in our opinion, stands in no conflict with the constitution. Under itd provisions slaves are not entitled to peremptory challenges. They may challenge for cause, but the right mutt be exercised before the court is sworn. State v. Isaac, 3 An. 359.

The next position assumed is, that slaves are not treated as persons by our laws. That the statutes providing for the punishment of their crimes are all sp'éóial, and none of them declare the killing of one slave by another to be murder. The repeated acts of the legislation declaring slaves capable of committing crimes, annexing punishments to their offences, and creating tribunals for the* trial of the offenders, must be considered so many recognitions that they are persons. It is difficult to conceive how a crime can be committed by a slave, unless he be considered in law a person. But we are not leftto inference on this point. The first section of the Black Code, speaks of slaves as persons. They are classed as'persons in the Civil Code, in the title treating “ Of the Distinction of Persons,” and were so classed in the Code of 1808, p. 10, art. 13. They were also held to be persons by the late Court of Errors and Appeals in the case of the State v. Moore, 8 Rob. 521.

Considered as persons there are at least two statutes under which the offence charged against the accused may be punished. The. first is, the 11th section of the Black Code (Bui. & Curry’s Dig. p. 59); the second, the act of the 7th June, 1806 (Bui. & Curry’s Dig. p. 251), annexing the punishment of death to the crime of murder. There is no clause in the act last referred to confining its operations to free persons.

It is next urged that it has not appeared that the two justices, of either of them,selected the ten slave owners to assist at the trial, nor that the persons who sat on the trial were slave owners of the parish. These objections were not made in the court below. The prisoner has the right to object to the want of qualification of the jurors, and to insist on the tribunal being organized as directed by law. But that objections must be urged before the tribunal is sworn, otherwise they will be considered to have been waived. State v. Isaac, 3 An. 359.

It has further been objected that, it does not appear that the persons were all sworn. We think that the objection is not sustained by the record.

Judgment affirmed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Thomas v. Wetzler.
    Plaintiff, in an action commenced by attachment, will be entitled to a judgment by doliralf,' against an absconding debtor, where a copy of the citation and petition were’left with the wife of the defendant at his residence. The appointment of a curator ad hoc is unnecessary in such a case.
    PPEAL from the District Court of East Baton Rouge, Burle, J. In this case, which was commenced by attachment, a c'opy of the petition and citation were left with the wife of the defendant at his residence. It was proved that the defendant had absconded. The plaintiff appealed from a judgment refusing him permission to take a judgment by default, on the ground that an’ attorney should have been appointed to represent the defendant as an absentee.

      Brunoi, for the appellant.
    No counsel appeared for the defendant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Slidell, J.

Considering article 253 of the Code of Practice, and the opinion of the court in Williams v. Kimball, 8 Mart. N. S. 355, we think a judgment of default should have been allowed, and the plaintiff permitted to proceed without the appointment of an attorney ad hoc.

It is, therefore, decreed that the judgment of the’court below be reversed, and that the cause be remanded for further proceedings according to lawj and with instructions to the court below to permit the plaintiff to proceed, Without the appointment of an attorney ad hoc; the costs of this appeal to be paid by the defendant.

       A similar judgment was pronounced, at tho same time, in the case of Medley et at against the same defendant. JR.


text:
    Gardner v. Shipley.
    An overseer, employed by the year, may obtain a sequestration of the crop on which ho’ has a privilege, on making the affidavit required by law, though the year have not expired for which he was hired and the amount of his salary he not yet duo. C. P. 275, J 6. Stat. 7 April, 1826, s. 9. It is not essential that tho debt should have matured before a party can resort to this conservative measure.
    PPEAL from the District Court of East Baton Rouge, Burle, J. •

      Lacy, for the appellant,
    relied on Williams v. Duer, 14 La. 537, Neilson v. Pool, 17 La. 212.

      Herron, for the defendant.
    The action was premature. C. P. 14, 158. 3 La. 300. A sequestration cannot issue before the debt is due. It is urged that a sequestration isa conservative measure; so is attachment; but it was found necessary in order to give the right to attach before the debt falls due, to amend the law, and give such right in express terms. This has not been done as to sequestrations. 3 La. 300. 5 La. 345.
   Tho judgment of the court (Rost, J. absent,) was pronounced by

Slidell, J.

The plaintiff was employed, in January, 1848, by the defendant as his overseer, for tho year ending on the 4th January, 1849. On' the 7th December, 1848, he obtained a sequestration upon affidavit charging that the crop of the preceding year had been entirely removed, that a portion of the crop of the then present year had been shipped by' the defendant, and that he was shipping and disposing of the balance as fast as it was made ;' that the plaintiff had just reason to fear and believe that, unless a writ of sequestration should; be issued, the entire crop would be removed beyond'the jurisdiction of the court-, in all probability out of the State; that a sequestration was necessaiy to secure his privilege, &c. The affidavit also stated, among the reasons for the plaintiffs apprehension, that the defendant had refused to give him any security in case the property was removed.

The defendant excepted to the plaintiff’s demand as being premature, Snd moved the court to set aside the sequestration, “for that the same could not issue until plaintiff’s right of action had alisen.” The court below, being of opinion that the suit was premature, sustained the exception, dissolved the soquestration, and dismissed the suit. From this decision the plaintiff' has appealed.

By the sixth clause of the 2?5th article of the Code of Practice, it is declared that, “ a creditor by special mortgage shall have the power of sequestrating the mortgaged property, when he apprehends it will be removed out of the State before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension.” By the act of 1826 itwas enacted that, in addition to the cases mentioned in article 275, the plaintiff may obtain a sequestration in all cases where he has a lien or privilege upon property.

The argument presented by the opposite parfy is, that the debt being unmatured could not be sued for, and the right to a seqslestration being a mere accessory right must follow the fate of the principal. The text of the law does not require, in terms, that the debt secured by ttie mortgage, or privilege should have matured; and certainly its spirit is conservative, and, in our opinion, embraces the present case. The defendant forgets that, although it might be deemed part of the contract, that the plaintiff should not be paid until the end of the year', it was equally, by legal intendment, a part of tho contract, that he should have the security of the crop for such payment.- The intended removal of the entire crop would have been a breach of that contact; and the manifest object of the Code is to anticipate and prevent such an injury, when the party presents just grounds of apprehension. See Neilson v. Pool, 17 La. 212.

It is, therefore, decreed that the judgment of the court below be reversed, and that the cause be remanded for further proceedings according to law; the defendant paying the costs of this appeal.


author: Eustis, C. J.

text:
    McCalop v. Hereford.
    A memorandum in writing-, though signed on Sunday, is admissible in evidence- to prove a contract made on another day.
    from the District Court of East Baton Rouge, Burle, J.

      Lacey and Liam, for the appellant.

      Herron, for the defendant.
   The of thp court (Rost, absent,) was pronounced by

Eustis, C. J.

This suit is brought to recover the balance duo on a promissory noté of the defendant, which tho Union Bank had held,, and which tho plaintiff had paid'and'thereby become the owner of. It appears thati the plaintiff had: purchased from the defendant a plantation on which a stock mortgage existed in favor of tha-Union Bank; and, an order of seizure having been issued against it, the plaintiff paid to the bank the sum of$5,000, which the bank applied, withthe* consent of the plaintiff, to the payment of a note of the’defendant whieb<the bank held, and the balance to the stock note of the defendant which bore on the property mortgaged- For the balance due on this note thus paid by the plaintiff the-present action is instituted. A defence was set up, by way of exception, that the’ plaintiff had bound himself, for a sufficient consideration, to give the defendant live years to pay'the amount. The exception was sustained by the District Court;, and the plaintiff was non-suited. He has taken this appeal.

The note sued.on was-secured by a pledge of-" two hundred and thirty shares1 of the capital stock of the .Union Bank; and the agreement relied on by the-defendant purported, that the plaintiff was to give the defendant five years for' the reimbursement of the amount the plaintiff should pay for him-' to the bank, - on condition that he should transfer to the 'plaintiff the bank stock at the price-two, persons named should say it was worth, and give a mortgage upon certain-negroes, which were-also mortgaged to the bank, whenever McCalop, the plaintiff, should, desire if. No notice or requisition has been given to the defendant to transfer the stock- or execute the mortgage. This agreement was made, in October, -1847--.- It is proved by a memorandum signed by both parties, but written and bearing date on Sunday, the 7th February, 1848. It is contended by tho counsel for the- plaintiff that the contract itself was made on Sunday, and for that reason-is not valid, and cannotbe recognized as having any effect in a court of justice- Without deciding on the force-of this objection, we have only to statb that the agreement relied-upon to give the-defendant time is not proved to have been made on that day, but on some day in October, 1847. We have been referred to no authority for the opinion that'a memorandum signed on Sunday is not admissible as evidence to prove a contract made on another1 day. This case presents features of great irregularity throughout. The action is not properly brought,- the matter of defence is not well pleaded. The evidence, however, has been given on both sides, and the case must be determined on the state of things thus presented. We find nothing in the evidence which affects the validify of the agreement, nor do we find any default'on the part of the defendant as to the compliance with his part of it. The affair between the parties is still open, and ■ the contract thus partially executed by file plaintiff is subsisting, and, by reason of the agreement, the plaintiff’s action cannot be maintained. The rights of the-parties remain entire, and unaffected by the judgment of nomsuit.

Judgment affirmed'.


text:
    McGehee v. Brown.
    A planter who removes with Ms family to a village in an adjoining parish,- for the purpose of having his children instructed at a school in the village, and occupies a house there, hut who continues to perform the-duties of a citizen of the parish in which Ms plantation is ¡situated, and manifests, by continuous acts, 1ns intention to retain Ms domicil there, cannot be sued in the parish to which-he had removed with Mg family, for & merely temporary purpose.

      from the District Court of East Baton.Rouge, Nicholls, 7.

      Elam, for the appellant.

      Brunot, for the defendant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Slidell, J.

The defendant being sued in ¡the District Court for the'parish of East Baton Rouge, excepted to the jurisdiction of the court upon,the ground that he was domiciled in the parish of -Iberville. Two district judges have acted upon the evidence in this case; and on .both occasions the exception was sustained. The case might be susceptible of a decision either way, if the testimony on one side only were considered. But looking,!» the evidence as ,a whole, we ¡cannot disturb the conclusion of the courtbelow.

It is true that, at the date of the citation, the defendant was present inthe parish of East Baton Rouge, occupied a house there, .and his wife and children were living with him. He had also been recently elected a vestryman of the church in .that parish. But, on the other hand, it appears that, in 1841, he removed from the .parish of East Feliciana to Iberville, having purchased a large sugar estate and a commodious dwelling house there; that he dwelt with his family on the estate until about a year before the institution of this suit, when -he came with .them to East Baton Rouge for the purpose of having his children instructed at a school in the town of Baton Rouge. He continued, however, to give.his personal attention to his sugar estate, voted in Iberville, was placed on the venire and served as a juryman there after this suit was brought, and appears to have continuously performed the duties of a resident citizen of the parish, and to have been reputed such, during several years, and down to the trial of this cause. 'The object of his abode in East Baton Rouge seems to have been solely to have his children at the school, a temporary and contingent purpose, not inconsistent with the intention manifested by lire continuous acts of the defendant to retain his domicil in Iberville. Judgment affirmed.


author: Etjstis, C. J.

text:
    Reynolds et al. v. Horn et al.
    * Where a judgment has been obtained here against a debtor, who subsequently died, in an. other State, leaving residuary legatees, wlie received their share of his succession, the administration of which in this Statehadbeen closed,but who are absentees, plaintiffs cannot .proceed against them by appointing a curator ad hoc to represent them, and by a rule on them to show cause why execution should not issue against them on the judgment against their testator. The recourse which plaintiffs undertake to exercise being personal and involving matters en pais, they must proceed by an action in the ordinary form.
    from the District Court of West Feliciana, Stirling, J.

      Phillips,

    for the appellants.

      J. H. Collins, Ratliff and Cowgill, for .the defendants.
   The judgment of the court (Rost, J. absent,) was pronounced by

Etjstis, C. J.

In 1840, a final judgment was rendered against Moses Horn and others, stockholders of the late Feliciana Steamboat Company. On an appeal from this judgment, taken by two of the defendants, Laurent Millaudon and James Dick, it was reversed as to them. In 1842, Moses Horn died, in Tennessee, where he then resided, and by his will constituted B. W. Cotton, Mary C. Cotton and Emily Dickson, his residuary legatees. The plaintiffs took a rule against these parties to show cause why execution should not issue against each, for one-third the amount of said judgment thus obtained against the testator. Being ;all absent, a curator ad hoc was appointed by the court to represent them. The legatees had received from the executor of Horn’s estate their share of the effects of the succession, which was settled under a decree of the parish court of "West Feliciana, in June, 1844. An attachment was attempted to be levied on a note belonging to them in the hands of their attorney, but the sheriff did not obtain possession of the note, nor was there any process of garnishment against the party who held it. The district judge discharged the rule, considering that the defendants were not properly in court by the curator ad hoc appointed to represent them, nor by the attachment, which he did not consider as reaching the property attempted to be attached. From this order discharging the rule the plaintiffs have appealed.

The mode of proceeding of the plaintiffs cannot be sustained. Their remedy against the defendants as representing Moses Horn and responsible for his debts, is by an action in tire ordinary form. There is no warrant for the summary mode ef calling upon the parties, who have never resided within the State, to show cause why execution should not issue against them on a judgment obtained against their testator. The administration of the succession in this State being closed, and the recourse against the defendants which the plaintiffs undertake to exercise being personal and involving matters en pais, the plaintiffs have their right of action, but we are not aware of any law which would authorize the mode of proceeding they have adopted. Such being our views, we think the district judge did no.t err in discharging the rule. • Judgment affirmed.


author: Eüstis, C. J.

text:
    Ortes et al. v. Lallande et al.
    The fact that the petition and citation were not served in the french language, the maternal tongue of the defendant, must be pleaded in limine litis. It affords no ground for reversing the judgment on appeal, nor for enjoining its execution.
    On the dissolution of an injunction by which the execution of a judgment was arrested, damages to the extent of twenty per cent on the amount of the judgment enjoined may be allowed without proof.
    from the District Court of West Feliciana, Stirling, J, ‘

      Haralson, Ratliff and Cowgill, for tire appellants.

      Phillips, for the defendants.
   The judgment of .the court (Rost, J. absent,) was pronounced by

Eüstis, C. J.

On the 12th of May, 1835, a judgment was rendered by the court of the Third District, held in tire parish of West Feliciana, in favor of Charles Morgan and Benjamin Poydras de Lallande against Francois Ortes and the widow Antoine Lacour, for the sum of $1312 50, with interest. The judgment was by default, and the default had been regularly entered on the 6th of May previous. It was not notified to tire defendants until 1841. In January, 1842, execution was issued, and the defendants, who are the plaintiffs in this suit, caused the execution tobe enjoined. On a hearing of the cause the injunction was dissolved, and the plaintiffs were adjudged to pay the sum of $250 damages and costs of .suit. Judgment for the same sum was also rendered against the sureties in the injunction bond. From this judgment the plaintiff, Francois Ortes, has appealed. In the petition for injunction the plaintiffs seek to annuli the judgment on which {the execution issued on the ground of fraud, and because the petition and citation in that suit were Served on them in the english language only, the maternal tongue. of both being french. Of the first ground there is no sufficient evidence; and, as to the other, had the parties appealed, the cause assigned would not have been sufficient to have authorized the reversal of- the judgment. Leeds et al. v. Debuys, 4 Rob., 258.

The damages allowed do not exceed twenty per cent on the amount of the judgment, and the District Court was justified in awarding them. Act of March 25, 1831, s. 3. Brown v. Lambeth, 2 An. 822. Farrar v. New Orleans Gas Bank. Ib. 873. Judgment affirmed.


text:
    Union Bank v. Meeker.
    JJarol evidence is admissible to prove tlie period at which a bill was intended to be payable, which was drawn payable “-months after date,” and discounted by a bank without filling up the blank. The testimony does not contradict the instrument, but supplies an omission, which, on the face of the contract, was either an oversight of the parties, or an intentional submission of the term to the discretion of the bank. 1
    The cashier is a competent witness for the bank by which he is employed.
    from the District Court of East Baton Rouge, Burk, J. •

      Winter, for the appellants.
    -No counsel appeared for the defendant.
   The judgment of the court (Eustis, C. J. not sitting, being interested, and Rost, J. absent,) was pronounced by

Slidell, J.

The defendant Walker, is sued upon a promissory note of the following tenor:

“ Clinton, La. 19th March, 1841.

“-- months after date I promise to pay to John Henry Black, or order, .the sum of. nine hundred dollars, for value received, negotiable and payable at the Branch of the Union Bank of Louisiana, parish of East Feliciana, waiving bank notice.

“ Credit the drawer, ■ M. L. Meekee.

“P. A. W.

(“Endorsed) John Henry Black,

“P. A. 'Walker.”

The petition alleges that the note was intended to be at twelve months, and that the omission, or blank, was an oversight.

At the trial of the cause the plaintiffs offered to prove by the deposition of the cashier of the bank’s branch at Clinton, where the note was discounted, that he was such cashier at the date of the note, and had been for several years previous; that it was given in renewal of an accommodation note of $1,000, made by Meeker, on the 16th March, 1839, at twelve months, endorsed by Walker and Black, which was protested in March, 1840, and had lain over until its renewal by the note in question; that twelve months was the usual time of notes discounted at the branch; that it was the intention and understanding of the parties that the note should be payable at twelve months, and the omission1 was his own. To this testimony exception was taken, upon the grounds, that parol testimony was inadmissible, and that the cashier was incompetent by reason of interest. The exception was sustained by the court.

The testimony does not go to contradict the written instrument, but to supply an omission, which, upon the face of the contract, was either an oversight of the parties, or else an intentional submission of the term to the discretion of the bank.

The cashier was not an incompetent witness. The rule which admits agents to testify in behalf of their employers as to matters in which they have been engaged, has its foundation in public convenience and necessity; for otherwise affairs of daily and ordinary occurrence could not be proved, and the freedom of trade and commercial intercourse would be inconveniently restrained. Green-leaf, Ev. § 41G. Thus the porter, journeyman, or salesman, is admissible to prove the delivery of goods. So a factor to prove a sale of his principal’s effects, though he is to have a commission on the amount. In the United States Bank v. Stearns, 15 Wendell, 346, the teller of a bank was held to be competent, in a suit for an over-payment made to the defendant upon his checks, to testify that, by mistake, he overpaid the defendant $100. The court there said, the case came within the rule of necessity. It was, they remarked, extremely improbable that any person less interested Ilian the teller could have any knowledge on the subject. It related to 'a transaction in the regular'course of his business. These views apply with peculiar propriety to the cashiers of the country branches of our banks, who are generally the sole employ,és. See also Franklin Bank v. Freeman, 15 Pick. 539.

We are not to be considered as saying that even without the cashier’s testimony the bank would not have a right to till up the blank. See Conchley v. Clarance, 2 Maule, 90. Collis v. Emmet, 1 Hen. Bla. 313. Russel v. Langstaff, Doug. 496, 514. Chitty, p. 33, 240 and notes.

It is, therefore, decreed that the judgment be reversed and the cause remanded for further proceedings according to law; the defendant and .appellee paying the costs of this appeal.


author: Ííing, j.

text:
    State v. Jerry.
    Decision in State v. Diclc, ante p. 182, as to the liability of a slave to be punished for murder, in hilling another slave, affirmed.
    After conviction it is useless to enquire by what authority the accused was arrested.
    The provision of sec. 13 of the stat. of 1 June, 1846, directing that an affidavit be made before the arrest of a slave, is intended for the protection of his owner, who cannot be required to surrender his slave until facts shall have been sworn to authorizing a prosecution. The neglect of the master to insist on this right, is not an irregularity of which the slave can complain.
    The statute imposing on the district attorneys the duty of prosecuting slaves accused of capital crimes, does not render their presence necessary to the validity of such proceedings. All the courts of the State are empowered to appoint counsel to prosecute on behalf of the State, in the event of the absence of the district attorney. Stat. of 28 January, 1817» h. 20.
    An objection that a second justice of the peace was not present to aid in selecting the ten owners of slaves for the trial of a slave under the stat. of 1 June, 1846, must be made before the persons selected are sworn. If they are permitted to be sworn, without objection, it will be a waiver of the irregularity.
    Where one accused of a crime is prosecuted as a slave, and he submit to a trial without ob* jection, the fact of his being a siave will be considered so far admitted as to exempt the .State from proving the slavery. The stat. of 1 June, 1846, providing for the trial of slaves, does not require that the sentence should be signed by both justices of the peace. The signature of one is sufficient.
    from a sentence pronounced by a tribunal organized for the trial of a . slave in the parish of Madison.

      Elmore, Attorney General, for the State.

      H. W. Dunlap, Hynes and Moore, for the appellant,'
   The judgment of the court (Host, J. absent,) was pronounced by

Ííing, j.

The accused was convicted of the murder of a slave, áí/difrom the sentence of the court has appealed. The grounds on which a reversal of the judgment of the lower court is claimed are: 1st. That no statute of the State makes the killing of a slave by another slave, murder.- 2d. That the accused was not arrested in virtue of a writ issued upon a previous affidavit. 3d. That the district attorney did not assist at the trial, and the appointment of counsel to prosecute on behalf of the State was unauthorized by law. - 4th. That the tribunal by which the accused was tried was illegal, and its proceedings void,- because the assisting justice was not notified to attend until the day of trial, and was not present to assist in selecting the slave owners who served as jurors. 5th. That the accused was-not proved on the trial to be a slave. And 6th. That the sentence was signed by but one of the justices.

I.The first point has been determined in the case of the State v. Dick, supra p. 182.

II.The slave was taken into custody, and his presence secured at the trial. It can be of no importance now to enquire by what authority he was arrested. The provision of the act of 1846 (Acts, p. 115, sec. 13), directing that an affidavit be made before the arrest of a slave, is intended for the protection- of the owner, who cannot be required to surrender his slave until facts shall have been sworn to which authorize a prosecution. His neglect to insist on this right is not an irregularity of which the accrrsed can complain.

III.The statute imposes upon the district attorney the duty of prosecuting slaves accused of capital crimes, but his presence is not made indispensable to the validity of the proceedings. All of our courts are vested with the power to appoint counsel to prosecute on behalf of the State, in the event of the absence of the district attorney. Bui. & Cur. Dig. p. 186, § 20.

IV.The objection that the assistant justice was not present to aid in selecting the ten slave holders, should have been urged before the jurors were sworn. The accused cannot be permitted, under the provisions of this statute, to accept jurors who may have been irregularly chosen, and after verdict take advantage of the irregularity. If he permit those to be sworn without objection, Ms silence must be considered as a waiver of the irregularity. See State v. Isaac, 3d An. p. 359.

V.The defendant having been charged as a slave, and having submitted to a trial as such without objection, so for admitted his condition as to dispense the State from proving his slavery.

VI.The signatures of both of tire justices of the peace to the sentence are not required by the statute. ■ Judgment affirmed.


author: Edstis, C. J.

text:
    Armor, Executrix v. Amis.
    Plaintiff obtained a judgment on one of a series of notes, given to his testator for the price of land and scoured by mortgage thereon, and defendant became the surety of the debtor in an appeal bond. The judgment was affirmed on the appeal. Pending this appeal proceedings were had by the holder of another of the series of notes, which had been negotiated by the executor, with his endorsmeent, and judgment was rendered therein, on his consent, under which the land was adjudicated to the holder of the second note. Plaintiff having subsequently attempted to execute his order of seizure and sale it was enjoined by the purchaser, and the injunction perpetuated. In an action by plaintiff against the surety on the appeal bond: Held, that defendant, if bound on his appeal bond, would be entitled on paying it to a /subrogation to the rights of the creditor; and that the judgment bv wlácli the mortgage rights of the plaintiff were extinguished,- which rights she contends that the appeal bond was given to secure, having been rendered by her consent,the surety is released.
    from the District Court of Madison, Selby, J.

      Thomas and Snyder, for the plaintiff.

      Amonett, Stockton and Steel, for the defendant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Edstis, C. J.

The plaintiff recovered a judgment against Amis, as surety on an appeal bond in which Downes was principal. From this judgment Amis has appealed.

The plaintiff had obtained an order of seizure and sale upon one of severa? notes given by Downes to the plaintiff’s testator, which were secured by mortgage on a plantation and slaves. From the. decree ordering the seizure and sals Doiones took an appeal, and gave Amis as surety on the appeal bond. The condition of the bond was that the appellant should prosecute his appeal and satisfy whatever judgment might be rendered against him, or that the same should be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast on his appeal; otherwise that the surety shall be liable in his place. On the appeal the decree of the district judge was affirmed. 2 An. 243. Pending the appeal, certain proceedings were had on another of the mortgage notes given by Downes to the testator Armor, and which he had negotiated with his endorsement, by which the property subject to the order of seizure was adjudicated to a third person. When the order of seizure and salo in favor of tire plaintiff was attempted to be executed, this party enjoined proceedings under it, setting up title in the property free from all mortgage. This cause was also' before this court, in February, 1848 (3 An. 247), and on being remanded the injunction was made perpetual.

The purchaser of tire property, who had thus cut out the plaintiff’s mortgage, was also the holder of the note under which the sale was made, on which note Armor, the testator, was the endorser, and hence the plaintiff had a direct interest in having the note paid. Had the sale been set aside, the note must be ¡raid from some other source than from the property which it was mortgaged to secure. We find accordingly that the judgment by which the mortgage lights of the plaintiff, which she contends the appeal bond was given by the defendant to secure, have been extinguished, was rendered on her consent. This judgment can give her no rights against the defendant, as the case is presented to us. The defendant, if bound on his appeal bond, on paying th'o debt, had a right to the subrogation to the rights of the creditor.. If it was tho plaintiff’s interest to lift-pair those rights, and she has had the benefit of them in saving the succession ftf her husband from the responsibility of his endorsement, there is no foundation whatever for any demand against the surety1,’ to whom they would belong in the event of recovery against him:

The judgment of the District Court is, therefore, reversed, and judgment retí-* dered for the defendant, with costs in both courts.


author: Siidem., J.

text:
    Eastman v. Harris.
    Hearsay evidence, admitted “without exception, cannot be objeetdd to afterwards.
    To enable a jmrty to become the owner oí’ a thing which he finds; it is necessary that tfiti former owner should have completely relinquished or abandoned it. O. 0. 3384; 3387;
    Where a raft of logs is accidentally stranded upon the'land of andthor; and the prdprietor of the land, though notified of the intention of the owner of the raft not to abandon it, cuts up the logs into firewood and sells them for a price exceeding, after deducting the cost of cutting them up, the value of the logs in their original condition, being a possessor in bad faith, and having thus put it out of his power to restore the thing in its enhanced condition upon being compensated for his labor, he will be responsible for the enhanced value of the timber when cut up for fire-wood, dfter deducting (lie cost of cutting it up.- Such a possessor cannot be permitted to profit by his own Wrong. C. 0. 517, 518,* 524, 2292. Per Curiam: As the plaintiff has ashed for an affirmance Of the judgment, which allowed him the value of the wood in the form Of firewood, after deducting the? cost of converting the logs into that form, it is unnecessary to decide whether a possessor in bad faith, under such circumstances, is entitled to compensation for the labor of converting the wood into a more valuable form, which is, at best, questionable.
    from the District Court of Madiison, Selby, J.

      II- W. Dunlap, Thomas and for the

      Short and Parham, for the lant:
   The judgment of the court (Post, J. absent,) was pronounced by

Siidem., J.

The plaintiff, who brought his action in December, 1847, alleges that; in the summer of 1847, a raft which belonged to him, and was in cours'e of transportation dowh the Mississippi, was stranded upon the land of the defendant, and was afterwards appropriated by the defendant to his own use. Damages Were claimed to the amount of $490. The! defendant pleaded the general issue. There was judgment in favor of the plaintiff for $300, and the defendant has appealed.

The first point made by the defendant iS) that the plaintiff has not proved his ownership of the raft. A portion of the evidence upon which tho question of ownership turns, would have probably been inadmissible as being hearsay; but no exception was taken to it. It satisfied the mind of the district judge; and his conclusion on this question not being manifestly erroneous, We are not at liberty to disturb it.

The next point presented is, that the damages were excessive. For its proper consideration it is necessary to notice the facts of the case, and then examine the principles of law, which, under such circumstances, control the rights of the Owner, and the liability of the party into whose hands the property has fallen.

It appears that during the high water, in April, 1847, one Avery was in charge of two rafts, and was floating them down the Mississippi, when they were accidentally stranded upon the defendant’s land. The plaintiff’s raft being inside, Avf-ry cut loose the other which floated on. He left a man with the stranded raft, directing liim to take care of it, and deliver it to the plaintiff. The' agent remained, and kept possession of it for somo time; but was told by the defendant that,, neither he, nor any ono else, should have it, until the proper owner came for it. The raft remained aground for five or six months, when the defendant cut up the logs into fuel, and sold it. Fie stated to a witness, that no ono had called to claims it; but that he expected to have somo difficulty about it. It appears from the evidence, that the logs were about ninety in number, and were worth, in the situation in which they were, about ono dollar per log. That the wood cut up into fuel was worth, according to tho defendant’s own estimate, $3 per cord. Tho labor of cutting the logs into fuel and putting it on the bank of tho river, in readiness for sale to steamboats, is proved to have been worth about oighly-one conts per cord. Each log would give about one cord and a half of fuel. A calculation made upon these data will show that the amount of damages given by the district judge is about the value of the fuel, less the expenso of converting the logs into that form. If the plaintiff was only entitled to recover the value of the logs as they lay aground, the damages given by the district judge are excessive; but if he was entitled to the enhanced value of the logs, deducting the cost of their conversion into fuel, tho judgment cannot bo deemed excessive, and ought not to be disturbed.

Among tho modes of acquiring property is occupancy. He who finds a thing Which is abandoned, that is, which its owner has left, with the intention not to keep it any longer, becomes master of it, in the same manner as if it had never belonged to any body. Civil Code, 3384. But it is requisite that the former-owner- should have completely relinquished the chattel, before a perfect title will accrue to tho finder; and there is a class of cases in which the presumption of law forbids tho supposition of an intention to abandon. “We must notreckonf’ says the Code, “in the number of things relinquished, those which one has lost, nor that which is thrown into the sea in a danger of shipwreck to save the vessel, nor those which are lost in a shipwreck. For although the owners of these things lose the possession of them, yet they retain the property and the light to recover them.” C. C. art. 33-87.

In the present case the plaintiff has not only the benefit of the legal presumption, but has also shown by positivo acts tho intention not to abandon, and the communication of this mention at tho time to the defendant.

. The article just cited also shows, to a certain extent, tho defendant’s liability: ■ “Those who find things-of this kind cannot make themselves masters of them; but are obliged to restore tliem to their lawful owners, in the manner provided for by the special laws made on the subject.” The rule is taken from the roman-law, where the very case before us is an illustration. Si ratis delata sit vi iluminis in agrum alterius, posse oum conveniri ad e^hibendum.

But is the owner entitled to take back the thing, when it has been converted by the industry of the finder or taken into another and enhanced form? Even where a person in good faith has employed materials which did not belong to him, in making another article, the owner of the materials has a right to claim the thing made out of them on reimbursing the price of the workmanship. There is an exception, where the workmanship is so important that it greatly surpasses the value of ■ tho materials, as in tho case of a statute which tho statuary has made from a block of marble belonging to another. See Civil Code, 517, 518.

But if such would bo the rights of tho owner against a possessor in good faith, unquestionably llio possessor in bad faith cannot complain if the thing is taken from liim upon reimbursing to him tho price of his labor. Snell a possessor cannot be permitted to profit by his own wrong. See Civil Code, 524, 2292.

^Whatever in a .mere moral point of view may bo the, defendant’s freedom from blame, it is clear that, in a legal aspect, ho was a possessor in bad faith.^ Under the stern rule of the roman law he who finds a thing that is lost, if he knows, or may know, to whom it belongs, and keeps it without an intention to restore it, or without endeavoring to discover the owner, is considered as committing a tlioft. Under our milder systems he loses .the advantages which the law accords to good faith.

As the defendant has, by his own act, .put it out of his power to restore the thing in its enhanced condition, .upon being compensated for .his labor, he cannot .be relieved from a judgment which condemns him to pay an equivalent amount.

As the plaintiff has asked an affirmance of the judgment, it is not necessary to decide whether a possessor in bad faith, under such circumstances, is entitled to compensation for the labors bestowed upon it, and by which it has been converted into a more valuable form. But we may remark that it is at best questionable. The policy of the civil law was to sanctity and uphold the right of property by discouraging and punishing wrong doors; and we find a learned court of common law, in a case very like tho present, applauding the wisdom of tho civil law, and citing it as authority. We refer to the case of Botts v. Lee, 5 Johnson, 349, where a party had trespassed .upon another’s land, cut down the timber, and converted it into shingles. TjnsjwasJ^cLnp]U;o.„diangaJ^ to tho property, and the trespasser, it would seem, was not considered as having .a right to remuneration for making them. In Brown v. Sax, 7 Cowen, 95, where logs had been cut on the plaintiff’s land, drawn to .the defendant’s mill, and converted into boards, the judge charged that the measure of damages would be the the value of the boards, without reference to the price of the defendant’s labor; and this ruling was affirmed by the Supreme Court. There was a difference of opinion as to the technical question whether, in the particular form of action (trover) the damages should be confined to tho value of the thing taken, but none as to the principle in cases of a wilful and tortious taking. See also Baker v. Wheeler, 8 Wendell, 505. Judgment affirmed,


text:
    Posey et al. v. Weems, Syndic, et al.
    "Where the creditors of an insolvent are tlie parties in interest in a contest as to a privilege claimed by one of them, tho claim cannot he established by an action against tho syndics; they represent the mass and not individual creditors.
    from the District Court of West Feliciano, Lawson, J.

      Ratliff and for tho
    for tho appellants.
   The judgment of tho court (Rost, J. absent,) was pronounced by

Eustis, C. J.

Margaret Posey and her husband, the appellees, intervened in a suit between the syndics of A, Dunbar and Stephen and Gideon Neville, which was instituted for the recovery of tho purchase money of a certain tract of land, bought by Stephen Neville at the sale of the insolvent’s property. The petition of intervention claimed the price of the land under the privilege of the vendor, Margaret Posey having sold the land to Dunbar, the insolvent, who had never paid for it. He had placed this tract of land among his properly on Ids schedule, and surrendered it to his creditors, whose syndics took possession of itf and sold it to Stephen Neville.

A tableau of distribution was filed by the syndics on the 13th of April, 1843, which was homologated, so far as not opposed, on the 23d of May following. On the 16th of December, 1844, the attorney of the appellees made an application for leave tp file an opposijápn to the tableau, which application was disallowed.No mention is made on the schedule, or pn the tableau, of the appellees or of the claim set up by them- The proceeds of the sale of this land, having been returned by the syndics in their account as assetts, have been thus decreed to be distributed by tho homologation of the tableau. Neville gave notes to the syndics for the price of the land, and these notes not having been paid, suit was instituted upon them, and, after an appeal to this court, judgment was rendered for the balance due on them. The appellees, intervening in this suit and claiming the vendors’ privilege, had judgment against the syndics for the same amount t with a privilege on the proceeds of the sale of the land. Tho syndics have appealed. The case has been submitted on the written argument of the counsel for the appellees, without any argument on the part of the appellants. The privilege claimed by the appellees cannot be established in an action against the syndics; the parties in interest are the creditors claiming adverse rights to it. The syndics represent the mass, and not individual creditors. The creditors have a judgment on the fund to be distributed under the tableau, and we do not understand that their rights thus secured can be affected in an action against the syndics. That part of the judgment which gives the appellees the privilege is clearly erroneous*

The judgment of the District Court allowing the intervenoiu and appellees a privilege on the proceeds of the tract of land sold to Neville, is, therefore, reversed, and, in other respects, is affirmed; the appellants paying the costs of the appeal, and the appellees those of the intervention in the District Court.


text:
    Freeman, Syndic v. Howell, Administrator.
    To malee an account a stated account, it is not necessary that it it should be signed by tira parties. It is enough if it have been examined and accepted by both, and such acceptance may be inforred from, circumstances. Hence an account rendered will be deemed to be an accont stated from the presumed approbation or acquiescence of the parties, unless objected to within a reasonable time. What is reasonable time mu/3t be determined with reference to the relations of the parties, or the usual c.ourse of busip.es/? of the particular class of persons concerned-
    from the District Court of West Feliciana, Penni J.

      Ratliff ftnd Cowgill, for the appellant.

      Phillips, for the defendant.
   The judgment of the court (Rost, J. .absent,) was pronounced by

Slidell, J.

This is an action upon two accounts of John Goodin Sf Co., commission merchants, one with Ebenezer Howell, the deceased, and the other with the defendant as administrator after his death. The accounts appear to have been kept distinct on the books of John Goodin 8f Co. The items of the account with the deceased, begin in December, 1842, and .end in July, 1843. Those of the account with his succession commence in October, 1843, and abalance is struck dm the 31st July, 1844; to which balance is added at foot, the balance of the account first mentioned. The items in these accounts are the usual matters of debit and credit in factor’s accounts with planters; on the one hand, advances of money, plantation supplies, acceptances of drafts; and on the other, proceeds of sales of crops. The court below, considering the plaintiff's claim not proved, gave judgment as in case of non-suit, and the plaintiff has appealed.

The defendant does not appeal- to dispute the sufficiency of the evidence with regard to the charges for supplies &c.; but contends that, with regard to the charges for drafts of the planter paid by the factor, the drafts themselves should have been produced; and that the secondary evidence, the testimony of the clerk of the factor that they had been paid, was properly rejected. On the other hand the plaintiff contends that accounts current were sent from time to time, and that, as no complaint was made with regard to them, the planter must be considered as having acquiesced in their correctness; and the production of the drafts was therefore unnecessary.

To malee an account a stated account it is not necessary that it should be signed by the parties. It is sufficient ff it has been examined and acceptpdjbyjboth, and that acceptance may be implied from circumstances. Hence the principal seems to be well settled that, an account rendered will be deemed an account stated from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time. What is a reasonable time, must be determined with reference to the relations of the parties, or the usual course of business of the particular class of persons concerned. See Story’s Equity s. 526, and the cases there cited.

But giving | the [plaintiff 'the' benefit of this principle, the testimony offered at the trial was not of that definite character which would authorizo us to apply the principle in the case before us. The witness deposes as follows: “ John Goodin Co. were in the.habitpf sending an account current to each of then- customers at the close of the season’s business; andoftener than that, if they considered that their customers wanted too much in proportion to the extent of their crops or remembrance of their own obligations; an account current should always shpw what is owing to or by the individual tp whom it ip furnished— of course Mr. Hoioells’ account wasjregularly, (or rather irregularly, ho being one of the not too punctual,) transmitted to Ms customary address.” It will be perceived that the^witness speaks infer eniially-to the'point of the transmission of accounts to Howell. But, even if he be considered as intending to assert positively that accounts were transmitted to him from time tp time, yet upon this loose statement we cannot qct with precision upon the items of thejiccount^and say how many of its items must be considered ,as having be,en[communicated to, and acquiesced in by, the planter. If it had been shown that, on a certain day, an account brought down to that day, and striking a balance, had been transmitted to the planter, and that the business and correspondence of the parties had [subsequently proceeded [as before without objection, there would then have been a basis laid upon which the judge below might have been required to sayt whether, under all [the circumstances, the acquiescence of the party could reasonably be presumed, and down to what time, unci us to what portion of the account sued upon. Judgment affirmed.


author: Rost, J.

text:
    Cunningham v. Erwin.
    Where a plaintiff who had sued to recover a sum from defendant, and filed a supplemental petition praying for the recision of sales and transfers of property alleged to have been made by defendant in fraud of his. creditors, takes a rule on defendant to show cause why the issues presented by the petition and supplemental petition should not bo tried separately, and the rule is made absolute, the court will be considered as having exercised its discretion as to the mode of trial best calculated to promote the ends of justice; and when no injury lias resulted to the defendant therefrom, its decision will not be interfered with.
    from the Fourth District Court of New Orleans, Strawbridge, L

      Watts and for the

      Mott and for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges thathe-was a creditor of the late Henry Hitchcock, in the sum of $28,660 39£, for work and labor performed and materials furnished in and about the buildings and grounds of said Hitchcock, in the city of Mobile, in the yeai-s 1838-39; that he has received on account $12,000, as appears by the statement annexed to his petition.

He further alleges that Hitchcock had mortgaged to the president, directors and company of the Bank of the United States, all his property in the city of Mobile, including that upon and about which the petitioner had expended his labor, to secure a debt of $800,000; that, after the death of Hitchcock, the bank became anxious to collect their claim, and to that end proposed to his legal repro.sentatives to take the mortgaged property in satisfaction and discharge of the debt, but that it was objected by the defendant, who is the brother-in-law of Hitchcock and the executor appointed by his will, that there were uncovered claims, amounting to $150,000 and mostly held by mechanics and laborers, for which provision ought to be made; that it was finally agreed that the bank should pay into the ■hands of tire -defendant, as trustee for the holders of those claims, the sum of $150,000; that the defendant actually received said sum, and assumed personally the payment of this and other unsecured debts. The plaintiff availing himself of the alleged stipulation in his behalf, asks a judgment against the defendant personally for the balance due him.

The defendant excepted to the action, 'on the ground that it is barred by the laws of the State of Alabama, where the succession of Henry Hitchcoclc was opened and declared insolvent. He further answered denying the indebtedness of the estate of Hitchcock to the plaintiff, and the receipt of any sum of money in trust or otherwise for the benefit of the plaintiff, or of any other creditor of Hitchcoclc; he averred that, in all things relating to the affairs of said estate, he had acted as the agent of Mrs. Hitchcock, his sister, and had fully accounted for all his acts to her, and disbursed for, and paid over to her, all sums of money received by him.

After the issue had thus been formed, the plaintiff filed a supplemental petition, by which he instituted a revocatory action against the defendant and asked Idle avoidance of certain sales and transfers of property alleged to have been made by him in fraud of his creditors. The exception taken by the defendant to this proceeding was dismissed, and an answer to the merits filed. At this stage of the cause the counsel for the plaintiff took a rulo upon tho defendant, to show cause wlay tile issues raised should not be tried "separately, to wit: the issue of the indebtedness of the defendant to the plaintiff; and secondly, if said issue was found for the plaintiff, tho issue of simulation. This rule was made absolute, and the issue of indebtedness was submitted to a jury who could not agree; a second trial was had with a similar result; and the parties then consented to take the opinion of the majority as the verdict. The majority of the jury were in favor of tho defendant.

The plaintiff moved for a new trial, which the judge refused, stating at tho same time his unwillingness that the case should be earned to the Supreme Court, under the impression that ho approved of the verdict. Two juries having already failed to agree, and the judge believing that if a new trial was granted no better result would follow, thought it best to compel tho parties to carry their differences before the appellate court. From the judgment rendered on tho verdict of tho majority, the plaintiff has appealed.

Tho exception taken by the defendant in his original answer wa3 properly overruled. In the account filed by the administrator the plaintiff is recognized as a creditor, though the amount due him is not set down, probably because he did not prosecute his claim against the estate. But [nothing compelled him to incur that expense, as he may have been satisfied with the stipulation of the defendant in his' behalf. If any thing could have been gained by proving the claim against the estate, the defendant might at all times have had the benefit of it by paying the debt.

Moreover the law of the State of Alabama, requiring the creditors of insolvent estates to file and prove their claims within a limited time, under the penalty of’ forfeiture, was passed several years after the death of Hitchcock, and after the defendant is alleged to have assumed to pay the uncovered debts. The right of the plaintiff to be paid, if he is one of the creditors contemplated by the trust, was perfect, and could not be taken away by subsequent legislation.

The defendant alleges that the rule to separate the issues was improperly made absolute, and asks that the whole case be remanded, should the court think the plaintiff entitled to his action.

This is a question of practice, in which the district judge has exercised his discretion in the 'manner which to him seemed best calculated to promote tho ends of justice. ITis decision has worked no injury to the defendant,- and justice does not require that we should interfere.

On the merits, we consider it proved that the defendant received from the bank of the United States the sum of $150,000, and assumed personally to pay the unsecured creditors of Hitchcock, one of whom he himself'was to the amount of nearly $40,000. The testimony of Fisher, Broion and Barney, leaves no doubt on our minds as to the nature of tho agreement. The debts due by tire estate, b'eáídes the claim of the bank, amounted nearly to $250,000; but many of the creditors held collateral securities, and the defendant believed the sum he received sufficient to satisfy the uncovered claims. His efforts to conceal the agreement from the creditors whom he did not intend to pay in full, in order that he Plight purchase their claims at_'a'discount, and the fact that, in one instance, he succeeded in doing so, show that his object in making the arrangement was to secure the amounts due him and his friends, and to speculate upon the necessities of the other creditors, most of whom were mechanics and laborers.

' The sum thus received by him, being in his hands a trust fund for the benefit of a particular class of creditors, each of those creditors has the right to enforce tho specific execution of the trust to tho extent of his particular interest. It is what would bo termed, under our laws, a stipulation in favor of third persons, of which they always have the right to avail themselves.

Considering that the plaintiff’s allegations place him among the creditors of Hitchcock whom the defendant is bound to pay, the only question remaining is whether those allegations are true; and here we will premise that our decision rests upon the evidence applicable to the allegations as they are made. Tire plaintiff having claimed the value of his work, without alleging any contract, we have taken the value proved, in preference to the price stated by some of the witnesses to have been stipulated for part of the work. We hate disregarded the probable estimates made by the witnesses, as we did in the case of Seaton v. Second Municipality, 3 An. 44. Statements that the work done by the plaintiff for Hitchcock was worth from $25,000 to $30,000, without any knowledge in the witnesses of the quatitit/ of work actually done, áre not evidence.

The plaintiff claims $5,900 for making Water street, and $300 for working on Conception street, under contracts. No contracts are shown, nor is there satisfactory evidence to show the quantity and value of the work dono on those streets, and the liability of Hitchcock to pay for it. It results from the evidence that the corporation of the city of Mobile was to pay Cunningham, in bonds, for mailing Water street, aftd that Hitchcock was to cash those bonds. It is proved that the plaintiff transferred to Hitchcock ci(y bonds to the amount of $3,450 99, for which, under this agreement he is entitled to a credit, in a general settlement of accounts. Beyond this amount, the claim for making Water street must be disallowed; the claim for making Conception street, is not proved.

There is no Conflict in the evidence as to the quantity of work done on the lots mentioned in the plaintiff’s account for Henry Hitchcock. But it is otherwise with 1'e'spect to the prices charged. The plaintiff’s witnesses say that the prices are low, those of the defendant consider them too high, on the ground that the materials for filling up were furnished by Hitchcock, and were near1 the lots filled up. They say that those materials were worth at that time ten cents per cubic yard.

This distinction has not been made by the witnesses of the plaintiff. We think there is much force in it, and that the prices charged should be reduced. The reduction which we would feel disposed to make would probably bring'down the' average price of the work under thirty-seven and a-half cents a cubic yard. As however, it is admitted by the defendant’s counsel, that thirty-seven’and a-half cents a cubic yard is a fair average remuneration, we will take that to be the reaV value. A deduction of $3,287 43¿ will have to be made on that account from the amount claimed by the plaintiff.

The plaintiff admits credits, specified in his account, amounting to $12,000. But William Edmunds, one of his witnesses, who was the clerk of Hitchcock before and at the time of his death, has testified, under a commission taken by the defendant, that he had knowledge of the state of accounts between Hitchcock and the plaintiff up to the'time' of the death of Hitchcock, and that he paid to the said plaintiff, for and on account of said Hitchcock all the items of the account annexed' to the commission, at the times and dates therein specified; that the account is in his (the witness’) hand writing; and that he has no doubt of its correctness. Besides the credits admitted by the plaintiff, this account contains charges of payments made to the plaintiff, on account of his work, and also for the rent of a house belonging to Hitchcock, which it is proved he occupied: these items amounting together to the sum of $6,732 81, must be allowed.

The charge of $375 for hauling brick is not proved. Tho witness R. I). James proves that Isaac H. Erwin, the administrator of Hitchcock’s estate, paid on plaintiff's account the sum of $1050 99, which is also 'to bo deducted from his account.

The credits to which the defendant is entitled, are as follows:

Deductions on the price charged for opening Conception and "Water sis. $2,749 01

Deduction on the value of the work as charged,..................3,287 43¿-

For hauling brick.............................................. 375 00

Payments admitted...........................................12,000 00

Additional payments proved by Edmunds.........................6,732 81

Payment proved by 11. JD. James................................1,050 99

$26,195 24Í

This sum deducted from the amount of the plaintiff’s claim, loaves a balance oiT $2,465 14¿, for which we believe him entitled to a judgment. In arriving at this balance, we have kept out of view the sum advanced by Major Hitchcock for the purchase of the plaintiff’s property, tiffs appearing to us a transaction in which the estate of Henry Hitchcock is not concerned. Under tho laws of Alabama and the facts of the case, the plaintiff is entitled to eight per cent interest, from the judicial demand only. The transactions between the plaintiff and Hitchcock, were earned on in such a loose and irregular manner, as to make it extremely difficult to ascertain their rights with precision; if we have not reached tho full justice of the plaintiff’s case, the fault is not otirs.

It is ordered that the judgment of tho court below be reversed, and that the plaintiff recover of tho defendant the sum of $2,195 14¿, with interest at the rate of eight per centper annum from the 8th of April, 1846, till paid, and costs in both courts. It is further ordered, that this cause be remanded to try the issue of simulation.


author: Slidell, J. Eusxis, C. J.

text:
    McDonald v. Lewis, Sheriff.
    Whore a debtor, in embarrassed circumstances, sells the contents of liis shop to a third person, but remains in the shop acting as a salesman, and the purchaser, for his own advantage in business, retains the name of the former owner over the door, and the boxes and packages in the shop are marked with the name or tho initials of the former owner, and, on an attempt by a sheriff to seize the goods as the property of the debtor, he and the purchscr inform the sheriff that they had been sold, but the purchaser does not exhibit liis bill of sale, nor his books, offering nothing but his naked assertion to establish the sale, and the officer seizes and takes away the goods, but, on the trial of an action instituted against him by the purchaser for damages, brings the property into court, and offers to deliver it up if the court so direct, judgment will he rendered against tho officer, though the court ho satisfied of the bona, jides of the sale, only for the restoration of tho property, and for any damage it may have sustained from want of proper care while in the hands of the sheriff*, and for costs. Per Cnriam,: The purchaser held out the vendor in a false light, to the public, and was bound to give the officer something more than liis mere naked assertion as proof of sale. Nor are we prepared to say that there was such a legal change of possession as would perfect the sale against creditors, supposing it to have been real aud bond fide.

    from the Third District Court of New Orleans, Kennedy, J.

      Elmore and King, for tlio appellant,
    cited Barry v. De Russy, 1 Rob. 76.
      Pcet'v. Morgan,, 6 Mart. N. S. 138. Yocum v. Bullitt,Tb. 325. Duperon r Van Winlcle, 4 Rob., 39. Lowry v. Erwin, 6 Rob. 192. Crocker v. De Passau, 5 La. 39. Walcott v. P¡pmroy, 2 Pickering, 121. Grinnell v. Phillips, 1 Mass. 530. Campbell v. Phelps, Í7 Mass., 244. Jameson v. Hendrick, 2 Blackford, 94. William v. Lowndes, 1 Hill, 579.

      Lee and Grymes, for the defendant.
   The judgment of the court (Eusiis, C, 3. dissenting,) was pronounced by

Slidell, J.

The court below was of opinion that the plaintiff had proved a bond.fide purchase of the goods from Tillotson. I do not feel entirely convinced upon that point; but I will give the plaintiff the benefit of the district judge’s opinion, and assume that the sale was real and in good faith. But what are the facts so far as the sheriff is concerned?

This sale, it is said, was made on the 16th February, 1847, upon which day the written bill of sale purports to be signed. Tillotson, the vendor, an embarrassed debtor, remains in'the shop, acting as salesmau, down to the timo off the seizure. The sheriff’s deputy goes, on the 9th April, 1847, to the shop, finds Tillotson there, and demands payunent of the amount of the' execution. ,- Tillotson tells him he cannot pay. The officer replies, then I must seize the goods' hero. Tillotson answers, they are not mine. The officer retires, and in a little while' returns, and threatens again to seize. At this second visit McDonald comes into the-shop, wllilo the officer is parleying with Tillotson. They both tell him Tillotson has sold the goods to McDonald. But all the surrounding circumstances contradict the naked assertion of the parties. Tillotson’s sign is still on the on the outside of the shop. The boxes and packages are marked with his name, either in full or by his initials. McDonald’s name appears no where. The attorney of the plaintiff in execution insists that the alleged salo is a mere pretence, and that the officer should proceed. The plaintiff, not exhibiting hi3 bill of sale nor his books, and proffering nothing but his naked assertion, tire officer seizes the goods and takes them away, and then this action is brought. The plaintiff’s title is produced for the first time on the trial of the cause, and then the sheriff brings the good3 into court, and says he is ready to deliver them immediately if the court should so direct.

It seems to me, if we hold the sheriff liable in this case as a trespasser, when he was willing to restore the goods, it would bo a great hardship upon the public officer, and would be in reality enabling a party to take advantage of his own wrong. The plaintiff, oven if he was a real purchaser, acted in such a way as to deceive the public, and this deliberately and for his own supposed interest. When Tillotson’s clerk was about leaving the shop, shortly after the sale, he asked McDonald whether he was to erase Tillotson’s name from over the door. McDonald replied, “that he would let it remain; that itwould be of some advantage to him.” It seems to me, such a course of conduct should be discouraged. It holds out tho vendor in a false light to the public, and gives him a false credit. In the caso before us, it led the public officer into an error, tho consequences of which the plaintiff now seeks to impose upon him.

I think the plaintiff was bound, in good conscience, to give the officer something more than his naked assertion, thus violently opposed by all the surrounding appearances. Why was not the bill of sale shown, and the plaintiff’s books, upon which he now relies?

Tho postion of a sheriff is one of great responsibility. If he refuses to make a levy, and the plaintiff in the suit can show that the goods found in the possession of the defendant in the execution were in truth his property, he is entitled to recover his debt pro tanto from the sheriff. And it seems that, in an action against the sheriff for a false return of nulla bona, it is sufficient to put the sheriff on his defence, for the plaintiff to show that the defendant in execution was in possession of property sufficient to satisfy the execution. Magne v. Lyman, 5 Wendell, 311. Ido not find any textual provision in outlaws, authorizing a sheriff to demand a bond of indemnity, and I have doubts whether he has a legal right to do so. If, on the other hand, he is to be held liable, as a wrong doer, for taking property which the owner has permitted to be surrounded by deceitful appearances, which entrap tho sheriff, his double responsibility becomes grievous to a degree that appears to me unreasonable. I think very great weight is to be given to what was said in an argument by counsel, respecting what is properly characterized by the chief justice as a defect in our jurisprudence. At common law, when the sheriff is mot by the assertion of an adverse title, he may impanel a jury to enquire in whom the property is vested; and their return will excuse him in an action of trespass. Bacon’s Abridg. verbo sheriff. Bailey v. Bates, 8 Johnson, 143. With us a sheriff' has no such power, and ought not to be held •with the same severity to a party whose conduct was imprudent and well calculated to deceive the officer.

If this case were tested by the rules and principles of the common law, which ■has been invoked in argument by the plaintiff’s counsel, I incline'to the opinion ■that tho sheriff would be permitted to return the goods upon payment of costs and mere nominal damages. I question if the action of trespass would lie in such a case; for, to sustain that action, it seems the the taking must be unjustifiable. Hence it is declared by respectable authority, that if a sheriff' take the goods of A. under a writ of fieri facias after he has committed an act of bankruptcy, and afterwards the goods are assigned under a commission of bankruptcy, an action of trespass does not lie against the officer,-although tho goods do by relation become tho property of the assignees from the time of committing the act; for as the officer might not know that A. had committed an act of bankruptcy, or that an assignment of the goods would be made, and as it was his duty to execute the writ, it would be unreasonable to punish him as a wrong doer. Bacon’s Abridg. Trespass. -So if A. mix his corn or money, with the corn or money of B., so that they cannot be distinguished, and B. take the whole, trespass does not lie, as there was a fault on the part of A. Ib. And so I should think a party would not be entitled to bring an action of trespass against the sheriff', who had loft his goods iu the possession of -the defendant in execution in such manner as to give him all the appearance of ownership.

Then if the taking was not tmjustifiable, the plaintiff would be driven to an action of trover; and I find it asserted by the same author that, in some cases, in that action it is allowed to bring the thing into court. “Butherein”, he remarks, “this distinction is to be observed; if trover is brought for a specific chattio of an unascertained quantity and quality, and unattended with any'circumstances that may enhance the damages beyond the real value, but its real and ascertained value must be the solo measure of damages, then the specific thing demanded may be brought into court. But where there is an uncertainty cither as to the quantity or quality of tho thing demanded, or thoro is any tort accompanying it that may enhance the damage above the real valuó of tho thing, and there is no rule whereby to estimate the additional value, then it shall not be brought info court.” So in Brown on Action, it is said: “If tho defendant return tho goods, the plaintiff will only recover such damages as he has actually sustained; buthe' is at all events entitled to nominal damages, as the return of the goods does not cure the conversion, but merely goes in mitigation of damages; and if there be a dispute as to the quantity of the goods converted, and the plaintiff refuses to receive back tho portion offered, the court will, upon application for the purpose, stay the proceedings, on delivery of such portion of tho goods and payment of costs and damages; and if the plaintiff refuse to accept such terms, will permit tho defendant to deliver up tho goods, the plaintiff to pay tho costs incurred subsequently to such delivery, in the event of his not recovering in respect of some otliór articles than those delivered up, or more than nominal damages in respect of those delivered up.” Brown on Actions, Trover, p. 425.

The power of our courts cannot be less than those of common law, to mould the remedy to tho justice of tho case.

To these remarks I may add, that I am not prepared to say that there was such a legal change of possession as would perfect tho salo against creditors, oven supposing the sale to be real and bond jldc. See Hoffman v. Clarke, 5 Wheaton, 549. In that case, which was trespass, against a constable, for taking ahorse alleged to belong to the plaintiff, by virtue of an execution against A., the plaintiíF’s brother, it appeared in evidence thatthe horse had belonged to A., who testified that ho had sold him to the plaintiff, before the-execution, for a full price. Another witness produced by the plaintiff testified that the plaintiff and A. lived together, and that after the sale the plaintiff kept the horse in tho same stable in which A. had kept him. The court then said, the law in order make sales of personal property good against creditors, and to prevent their being deceived by appearances, requires that there shall bo an actual transfer of the possession, so far as the nature and condition of tho property will admit of it. The circumstance of the seller and buyer of the horse boarding together in the same house, furnishes no ground for dispensing with such actual chango of the possession as will render it distinct and visible, so that it may become notorious. It was surely practicable for the plaintiff to have taken possession of lhc horse, by placing him in a different stable, and either feeding and taking care of him himself, or to have procured some third person to have done so. So here, the plaintiff' might have changed the sign, &c.

Host, J. and King, J. were also of opinion that the judgment should be .affirmed.

Eusxis, C. J.

dissenting. The defendant, who is sheriff of the parish of Orleans, is sued by tho plaintiff to recover the sum of $1,332 25, damages for an alleged tort committed by him in taking and carrying away the plaintiff’s property, consisting of a lot of shoes, trunks, &c. They were seized under an execution against one Tillotson, which was, including costs, for a less sum than $200, After the evidence was given in and tho trial finished, the defendant offered to restore and tendered the goods seized, if the court should be of opinion that the plaintiff had made out his claim to the property. The district judge decreed that the plaintiff should recover tho goods, reserving his right to sue the defendant for whatever damages he might have sustained from a want of proper care and attention to the goods while in the defendant’s custody, and ordered the defendant to pay costs. The plaintiff has appealed.

The suit was instituted on the 12th of April, 1847, and in the petition tho value of the goods taken was alleged to bo $832 25, and the incidental damages are laid at $500. By the minutes of the trial, it appears that the offer to restore tho goods was made on the 4th of June following. We-have not been favored with .nny authority or precedent of any case determined in this State, by which tho responsibility of parties to a suit of this kind has been held to be affected by a tender made at the time and under the circumstances attending this.

A sheriff, under an execution against A. has no warrant or right to seize the property of B. In this case tho defendant, under color of an execution against Tillotson, seized property which the district judge was satisfied belonged to the plaintiff. As the case stands before the court in relation to the property itself, the seizure and removal of the defendant’s goods was a tort, for which he is responsible. The only question is, as to the extent of his responsibility. Under our laws, the sheriff has no authority to call a jury in the event of his havng reasonable ground to doubt whether the goods to be seized be really the property of the debtor in execution. The responsibility in all cases appears, by the uniform decisions of the Supreme Court, to rest on that officer, whose only protection is the bond of indemnity which, in doubtful casos, is usually asked from the credit- or. The embarrassments which usually surround the performance of the duties of a sheriff, particularly in a great commercial ci1y like this, in consequence of the shifts and devices of fraudulent debtors in ¡ratting their property beyond the reach of them creditors by sham sales and otherwise, are veiy serious; the interests of the administration of justice call for some remedy for the evil by means of legislation. None better in all probability can be devised, than that which has been found necessary and practical, and is in operation in England and most of our States. A law empowering sheriff’s to summon a jury to determine on doubtful questions relating to the ownership of property, which is directed to bo seized in execution, modified as it there is by a settled jurisprudence, would be of great public benefit, and no more than a just protection to tho public officer in tho discharge of his difficult and important duties.

We have kept this case a long timo under advisement in order to ascertain if, as the law stands, there was any principle on which tho responsibility of the sheriff' can tbe modified, in which we could all concur, and I am satisfied there is none.

The sheriff’s officers in the present case acted without malice, and, I think, the defendant is only liable to the plaintiff for the value of the goods taken away. The officers,in seizing did not close the store, nor interfere with the current business, and the goods were removed in the after part of the day to tho depot of tho sheriff. There is no evidence of any aggravation or wantonness attending tho seizure. The name of Tillotson was over the door on the street. The boxes were marked in his name. It appeal’s that the plaintiff had bought out the stock of Tillotson in this store on the 16th February previous, and Tillotson remained with him in the capacity of a clerk; and under the evidence, according to all external appearances, there was good reason for believing that Tillotson was still the owner. The facts, however, turned out otherwise, and I am compelled to consider McDonald, the plaintiff, as the owner of the goods, and tho defendant as guilty, of a tort, in seizing and removing tliom. My opinion is that the plaintiff is entitled to judgment for value of the goods seized.

It is particularly to be desired that, on questions of this kind, which determine the responsibility of the executive officers of the law, the opinions of the judges of this court should be unanimous, and it is with great deference that I dissent from that of my brethren in this case. The judgment of the District Court having found the sale of the stock of goods from Tillotson to the plaintiff of the 16th of February previous to tho issuing of tho execution, to have been valid and bona, fide, from which opinion this court does not dissent, and having given judgment for the goods in consequence of the tender made in court, and not concurring with the district judge as to the validity and effect of the tender as made, I am forced to the conclusion that the sheriff is liable to the plaintiff for their value, according to what I conceive to be a legal principle, which is a necessary safeguard of the right of property. " Judgment affirmed.