author: Merrick, O. J. Spoeeord, J.,

text:
    Police Jury of the Parish of Jefferson v. Manuel Villaviabo.
    The Supreme Court is without jurisdiction to determine whether an ordinance of a municipal corporation levying a tax, or imposing a fine, forfeiture, or penalty, less than $800, has or has not been repealed by an Act of the State Legislature.
    APPEAL from the District Court of Jefferson,'BwtTie, J.

      Pwrvis & Dugue, for plaintiff.

      B. O. Elliott, for defendant and appellant.
   Merrick, O. J.

This suit was brought to recover of the defendant two hundred dollars, under an ordinance of the Police Jury of said parish, on account of retailing spiritous liquors, as the keeper of a coffee house, without a license.

It is evident'that this court can only consider the legality of the ordinance in question and not the facts upon which the decision rests.

The defendant’s counsel arrives at the illegality of the tax by the following-reasoning :

“We assert,” he says, “that said proceedings (of the Police Jury) are irregular, and of no binding force and effect for this. The Legislature of the State has defined the mode to be pursued by Police Juries of the several parishes, in assessing and collecting taxes on property, professions, &c. Revised Statutes, p. 410, sec. 20 : ‘ The Police Juries of the several parishes of this State, before they shall fix and decide on the amount of taxes to be assessed for the current year, shall cause to be made out an estimate exhibiting the various items of expenditure, and shall cause the same to be published in one newspaper published in the parish at least thirty days before the meeting to fix and decide on the amount of taxes to he assessed as aforesaid.’ Sec. 17: ‘A vote of a majority of all the members elect of the Police Juries shall he required to levy any parish tax, and in levying any parish taxes the Police Jury shall levy a uniform per centum on every species of property, trade or profession.’
“ Now, it will be seen,” so the counsel continues, “ that the ordinances under which the plaintiff proceeds is of date anterior to 1849, and by the Act of the Legislature (1886) quoted above and nowin force, is virtually repealed; the Act of the Legislature requiring a yearly assessing and levying of taxes on trades, professions, &c., and a condition precedent, in the making and publishing of a statement of the various items of expenditure, and at least thirty days before the meeting to fix and decide the amount of taxes to be raised as aforesaid.
“ The ordinance under which they sue is obsolete and has no legal existence. They have not passed the ordinance for the current year, have not made out and published the yearly statement, as required, thirty days before passing any ordinance levying or fixing- the tax on professions, trades, &c. ; and, lastly, they have not, in accordance with law, by a vote of the majority of all the members elect of the Police Jury, laid, fixed, or levied, the tax on professions, &c.”

From this statement of defendant’s case it appears, that the question which he desires to submit to us is whether the ordinance contained in a pamphlet printed in 1849, which he presents with his brief, was repealed by the Act of the Legislature in 1856. This court has not jurisdiction to revise the consbruotion which the lower eourt may have put upon the latter Act by its decree in this case. The court could only consider the legality or constitutionality of the Act, and not a mere question of repeal. See State v. Third Justice of the Peace of New Orleans, 12th An.

The defendant’s counsel further considers, that the bringing of tho suit is itself a license to the defendant to retail spiritous liquors for a year. The bringing of the suit was a fact, and the District Court alone was authorized to make deductions from the faots, and this court oannot revise its findings.

In conclusion, we see no ground presented by the appellant, which will justify us in assuming jurisdiction in this case.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the costs of the appellant.

Spoeeord, J.,

dissenting. I think the question, whether an ordinance of a municipal corporation levying any tax or imposing any fine, forfeiture, or penalty, has been repealed by an Act of the State Legislature, is a question within the appellate jurisdiction of this court, although the matter in dispute does not exceed $300, Constitution, Article 62. .


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    The State ex rel. Gregory and Caroline Oser v. the Third Justice of the Peace of the Parish of Orleans.
    Where the amount in controversy does not exceed $800 the Supreme Court is without jurisdiction, unless the case involves the constitutionality or legality of some tax, toll, or impost, or of some fine, forfeiture, or penalty of a municipal corporation. Such a case is not presented in a suit by the farmer or lessee of a market to recover the dues or rents of stano's in such market, as fixed by ordinance of the Common Council of New Orleans.
    If laws and ordinances of a municipal corporation, not unconstitutional in themselves, are misapplied by the inferior tribunal, it is not in the power of the Supreme Court to relieve the parties where the amount involved is insufficient to give jurisdiction.
    ON Application for a Mandamus to the Third Justice of the Peace of the city of New Orleans.

      J. W. Pirrhammer, for the Relator.
   Merrick, O. J.

A rule has been taken against the defendant to show cause why a writ of mandamus should not issue against him, to compel him to rescind an order setting aside an appeal to this court, which he had previously allowed the relators in four suits before him, wherein he had rendered judgment against them and in favor of one Tomné.

In answer to the rule, the defendant shows for cause why said mandamus should not issue, that said cases were instituted by the farmer of the St. Mary’s Market for the recovery of dues owing to him, for the rent of two coffee stands in said market; that the defendants were the occupants and tenants of the stands, and the dues were payable daily; that on the failure of relators to pay their per diem rent, suits were brought at the end of each week amounting to the sum of twenty-four dollars, and that he considered that the cases could not come under the provisions of Art. 62 of the Constitution, -as they involved merely an ordinary question of rent due for the occupation of two stands in the market of which the plaintiff was the rig'tful farmer and lessee.

It is clear, that the matters in controversy are not within our appellate jurisdiction, unless those cases bring in contestation the constitutionality or legality of some tax, toll, or impost, or of some fine, forfeiture or penalty imposed by a municipal corporation.

The answer of the defendant, which is not controverted, shows that none of the above questions were before the lower court for trial. But if we look into the petition of the relators, to ascertain the grounds of their complaint, we find, that they complain that ordinance No. 3372 of the Common Council of New Orleans is illegal and unconstitutional as being ex post facto, and especially contrary to Article No. 105 of the Constitution of the State,

The ordinance is in these words': “ Resolved, that the provisions contained in Article 33 of the ordinance No. 418, approved November 20th, 1852, so far as relates to coffee stands, be made to apply to all the public markets in this city. Provided, that this resolution shall not he construed in such manner as shall impair or interfere with the right and privilege of any lessees of said markets. And provided further, this resolution shall not he construed so as to conflict with any of the provisions contained in ordinance No. 2458, approved November 29th, 1855.”

No. 33 of ordinance 418 is in these words : “ Art. 33. That the farmers or lessees of the vegetable markets of the Second District shall not he entitled to collect other dues than those hereinafter mentioned, viz: Eor each vegetable table of four feet, and each stand for the sale of poultry, game, bread, fruit, fifteen cents: it being understood for every table or stand situated at the end of any of the rows of the tables in the market, the farmer shall he entitled to charge twenty cents, and it shall be the duty of the Surveyor to designate which are corner tables ; and for each coffee stand one dollar.”

It is apparent from an examination of these ordinances, that they do not pase impose ex post facto any fine, forfeiture, or penalty.

If laws and ordinances, not unconstitutional in themselves, have been misapplied by the inferior tribunal for want of a correct appreciation of the facts in cases where the amount involved is under three hundred dollars, it is not in the power of this court to relieve the parties. See case of Board of Health v. Pooley, Nicol & Co., 11th An., 743.

As in these cases we have no power to revise the facts, this conrt at least is bound to suppose they have been rightfully determined.

Rule discharged at the costs of relators.


author: Vooriiies, J. Merrick, O. J.

text:
    Jamison & McIntosh v. Daniel Fairès.
    Plaintiffs purchased certain premises of which defendant had been the lessee of their vendor for a term of years, already expired, they assuming to prosecute to final judgment a suit commenced by him to oust his lessee, who claimed a tacit reconduction of the lease. This suit resulted in a judgment in their favor, under which defendant surrendered the property to them. Held : That a written notice given by the plaintiff to defendant of their purchase, and that they would look to him for the rent, was not an agreement on their part to charge the same rent as was stipulated in the expired lease.
    APPEAL from the Sixth District Court of New Orleans, Kennedy, Judge of the Third District Court, presiding.

      Bm-ant & Honor, for plaintiffs.

      Boselius and Phillips, for defendant’and appellant.
   Vooriiies, J.

On the 26th of November, 1856, the plaintiffs in this ease purchased from one Joseph Duma, a certain lot of ground and the buildings thereon. In the sale, the plaintiffs declared their knowledge of the pendency of a suit involving the question as to the defendant’s right of lease to this property ; and, being subrogated expressly to the rights of their vendor, stipulated to prosecute said suit to a final judgment, which was accordingly done.

The defendant, it appears, held the property under a contract of lease with Joseph Duma, for the term of three years from the 1st of June, 1858, for which he stipulated to pay a monthly rent of §100, and to make all such repairs as might become necessary. At the expiration of the term, he insisted on his right to renew the lease on the same conditions, but his claim was rejected by a judgment in favor of the plaintiffs, under which he surrendered the property to the latter on the 27 th of January, 1857.

The refusal of Duma to renew the lease, is then conclusively shown. We do not think the written notice of the plaintiffs to the defendant of their purchase, and that they would look to him for the rent, can be fairly construed into any agreement on their part to charge the same rent as that stipulated in the original lease which had expired, as we have seen.

The amount claimed by the plaintiffs for the rent of the property, is proved to be reasonable.

Judgment affirmed.

Merrick, O. J.

The opposition by and refusal of the plaintiffs to re-let the property to the defendant, precludes all idea of a tacit reconduction. I concur, therefore, in the opinion of Mr. Justice Yoorhces in this case.


author: Cole, J.

text:
    E. Girod v. M. J. Belknap.
    The knowledge of the existence of a disease in a slave by the buyer, which would deprive him of his action to rescind the sale for a redhibitory vice, must be clearly established. It will not be sufficient to prove merely, that there was some conversation about the health of the slave, although the vendee may have said “ he knew all about the slave.”
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Dufour, for plaintiff.

      Koants and J. J. Michel, for defendant and appellant.
   Cole, J.

This is a suit for the rescission of the sale of a slave, on the ground of a redhibitory disease. There was judgment in the lower court for plaintiff.

Thc evidence shows, that the slave is afflicted with stricture of the rectum, and that plaintiff has dono all in her power to effect a cure; she caused, under the advice of physicians, a surgical operation to be performed, which relieved her slightly.

It appears from the testimonj1', that a perfect cure cannot he attained.

Dr. Ghaillé testifies, that the operation was performed by himself, assisted by Dr. Mereier, that she was temporarily relieved thereby, but he expected at the time she left the hospital that the stricture would return as bad as before, and that the relief would not he permanent, and thought that success in this particular case was very doubtful — he also states that such a disease, during its existence, most assuredly disables a slave, unless relieved or removed by an operation.

Dr. Dumont testifies, that she is incapable of rendering any services for she is too weak.

Dr. Turpin says, that a slave afflicted with this disease is perfectly useless, for it induces every species of disorders.

Drs. Turpin and Dumont believe that this disease existed in the slave before the sale.

Dr. Kennedy declares, that he does not think a stricture of the rectum can be cured even if taken before it becomes chronic, from the fact that the commencement of this disease is not suspected, and when once made manifest by symptoms, the probability is that it has progressed so far as to be ultimately incurable.

Defendant has tried to show by some conversations that occurred about the time of the sale by her to plaintiff, that the latter was cognizant of the disease before the sale and consequently cannot now plead it as a valid ground for the rescission of the sale: but these conversations do not show that the nature and extent of the disease were explained to plaintiff.

In order to make knowledge of the existence of a disease, fatal to a claimant for a rescission of a sale for redhibitory defects, it must be clearly established, that the vendee was aware of the disease for which the redhibitory action is instituted, and it is not sufficient to prove merely, that there was some conversation about the health of the slave, and that the vendee said, “ she knew all about the slave,” for it may be that the slave may be affected with some disease only known to the vendor.

The evidence shows, that the vendee refused to pay the money for the slave unless the clause of warranty was inserted. It might be concluded from this, that during these conversations, the vendor insisted that the slave was but slightly affected; but that, notwithstanding this, plaintiff insisted on the insertion of the clause.

The opinion of the physicians as to the existence of this disease before the sale is corroborated by the fact, that a previous owner of the slave sold her to Berncvrd Kendig, the vendor to defendant, and only warranted her in title ; and also by the conversations between plaintiff and defendant just before passing the sale; which show, that the slave was spoken of as being in some way sick, although neither the nature nor extent of the disease were made known to plaintiff.

¥e think there is no error in the judgment.

Defendant suggests, that even if the sale is rescinded, she ought not to be held liable for the costs of the first trial.

It appears there was a judgment of nonsuit on the first trial against plaintiff, because she had not alleged that the disease existed anterior to the sale, but the Judge afterwards granted a new trial, and allowed plaintiff to amend by making this averment; it also appears that the evidence taken on the first trial was by agreement of counsel admitted de novo in evidence, with the exception of Dr. OhailWs testimony.

We are of opinion that defendant is liable for the costs of the first trial.

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


author: Spofeohd, J.

text:
    James Saunders v. Joseph W. Carroll et al.
    It is a sound rule of construction never to consider laws as applicable to cases which arose previous to their passage, unless the Legislature have in express teims declared such to be their inten-
    The Act of the Legislature declaring, that debts shall bear interest at the rate of five per cent, per annum from the time they become due, unless otherwise stipulated, is not applicable to debts which were contracted and became due before the passage of that law.
    APPEAL from the Fourth District Court of New Orleans. Tried by Jury. Price, J.

      Simonds & Fenner, for plaintiff and appellant.

      Singleton & Olaclc and Elmore & King, for defendant.
   Spofeohd, J.

The only question now at issue is, whether the defendants, acceptors of a bill of exchange, are liable to the plaintiff for any interest thereupon after maturity and prior to judioial demand.

Orutcher & McRaven of Vicksburg, Mississippi, being indebted to' Ja/mes Saunders of Lynchburg, Virginia, on the 16th of March, 1851, drew their hill upon Buchanan, Gwroll & Go. of New Orleans, at eight months after date, to the order of James Saunders, for $2991 48, and afterwards put the drawees in funds to meet the same at maturity.

The hill was drawn in duplicate upon one piece of paper and thus remitted by letter to the drawees, with instructions to accept it and remit it to the payee (the plaintiff Saunders) at Lynchburg, Virginia. With these instructions the acceptors complied immediately and literally, and requested Saunders to acknowledge the receipt to Orutcher & McRamen. It would also seem, from evidence offered by the plaintiff, that the acceptors advised their constituents, Orutcher & McRaven, that they had complied with instructions, hy forwarding the accepted bill.

It appears that the plaintiff, nearly five years after the maturity of this bill, found it in an old box of papers in his house at Lynchburg. Meanwhile, he had done nothing in relation to it, and it would seem that, until a short time previous to this search among the papers in his house he was unaware of its existence, although he had been in business relations with Orutcher & Me-Raven all the time, and had claims upon them for an unliquidated balance.

The explanation of this singular occurrence, so far as it is to be gathered from the record is, that at the time of the arrival of Buchanan, Oarroll & Go's letter containing the bills, and for many weeks afterwards, the plaintiff was absent from Lynchhui'g on public business; that his son, who managed at least some part of his business and took his letters from the post office, received and opened the letter of Buchanan, Oarroll & Go ; that he put the hill away among the papers where it was finally found; that before the return of his father he was killed; and thus, that no communication was had between the father and son relative to the matter.

The ground upon which the plaintiff seems mainly to rely to charge the defendants with interest from the maturity of the paper, although no demand was made, is, that the demand was rendered impossible by the negligence of the acceptors in forwarding the first and second of exchange upon one paper and in one letter to Lynchburg, instead of retaining the duplicate.

The duty of Buchanan, Oao'rollS Oo. was to obey the directions of Orutcher & McRaren, who were their only principals in this matter. This they seem to have done. No intimation was .given them, that thejr were expected to retain the duplicate. On the contrary, the two bills were remitted to them as one instrument unsevered, with instructions to remit it to Saunders. And if they would have been justified in' severing the paper-, it does not appear that the plaintiff has suffered at all from their neglect to do so. If they had retained the duplicate and forwarded it within a short time by a succeeding mail, it would, in all likelihood, have shared the same fate with the original. At any rate, the plaintiff received both ; and it appears, that he sent both in one envelope (for they are still unsevered) to his agents in Now Orleans, for the purpose of making this demand, thereby committing the same error of judgment, if error it be, in his own affairs, which he charges upon the defendants.

His tardy recovery of the instrument is not attributable to a fault of the defendants; the evidence shows, that it is directly attibutable to his own loose mode of conducting his business, his neglect of proper directions as to the disposition of his letters and bills receivable in his absence from home, and his failure to keep proper accounts and a business correspondence with his debtors, Gvutcher & MaRamen. The bill was negotiable in form, and the acceptors had no ground to suppose that it was still in the hands of the payee ; or, that he had failed to receive it. It was not their duty- to institute a search for it, but they had a right to await its presentation at their counting room by the holder, whoever he might be.

Interest was not due from the maturity of the bill, there being no stipulation to that effect, and no putting in default shown.

But it is contended, that interest is recoverable from the passage of the Act of 9th March, 1852 ; Sess. Acts, 95.) “ All debts shall bear interest at the rate of five per cent, per annum from the time they become due, unless otherwise stipulated.”

The debt was contracted and had become due before the passage of that law. If it were competent for the Legislature to annex a new condition to the contract of the parties, we should be bound to presume that they did not intend to do so, unless their language could bear no other interpretation. Retroactive laws, and laws affecting contracts already made, are so repugnant to logic and natural justice, that it cannot readily be supposed that the lawgiver intended to pass them; see C. C., Art. 8. It has repeatedly been held in this court to be a sound rule of construction, never to consider laws as applicable to cases which arose previous to their passage, unless the Legislature have, in express terms, declared such to be their intention. See cases cited in Hennen’s Digest, p. 829, No. 4 Succession of Taylor, 10 An., 511. And in general, the courts both of England and America strive so to interpret statutes as to give them a prospective operation only. See Moon v. Durden, 2 Exchequer R. 22. In Baily v. the Mayor, &c., 7 Hill, 146, it was held, on this principle, that a statute authorizing interest to be taxed upon verdicts did not apply to verdicts rendered before the Act was passed, although the language of the Act was broad enough to embrace them. See also Plumb v. Sawyer, 21 Conn. 351.

And so we think that by the Act of March 9th, 1852, the Legislature did not intend to supply any new ingredient in existing contracts. They only provided, that in all contracts thereafter made, and debts thereafter created, it was to be implied, that interest at five per cent, should be due by the obligor after maturity, unless otherwise stipulated. In the case of Barnes v. Orandell, 12 An. 112, we held, that interest cannot be claimed on a judgment which does not bear interest on its face, and which was rendered when no general law was in force by which interest was superadded to it.

The agreement as to interest was one of the tacit clauses in the contract of these acceptors. To find out what they agreed upon in that regard, we must have recourse to the laws in force at the date of the contract. Article 1940, No. 1 of the Civil Code declares, “ that no general or special legislative Act can be so construed as to avoid or modify a legal contract previously made.” C. O. Art. 8.

“Pour supplém' les clauses non exprimées dans un contrat, il est clair qu’on ne peut so reporter qu’á la loi qui existait au jour oú il a été passé. Dans ce cas, en effet, c’est l’intention des parties qu’il s’agit de rechercher; or, ce n’est pas á une loi qui n’existait pas encore que la penséede ces parties s’est reportée pour régler ce qu’elles laissaient inexpliquó dans leur acte. Oompléter cet acte par les régles de la loi nouvelle, ce serait done la faire rétroag'ir.” 1 Marcadé, No. 53.

Finally, it- was contended, that interest is due from the inception of a suit previously commenced upon this cause of action, but in which a nonsuit was taken by the plaintiff. It suffices to say, that prior to the institution of that suit the defendants had tendered payment of all that we find to have been due upon the bill, which was refused unless the interest wrongfully demanded were paid also.

Judgment affirmed.


author: Spoitoed, J.

text:
    D. F. Lowber v. T. J. McCoy.
    The lack of full and explicit pleadings, will not compel the rejection of pertinent evidence, the existence of which was previously known to the party objecting to its introduction.
    By a contract made in Alabama and which was not recorded in Louisiana, defendant put it in the power of IF. so to act, that an innocent purchaser in Louisiana might be deceived and defrauded. Plaintiff was deceived and purchased in good faith a slave, which the defendant, without plaintiff’s consent, afterwards got possession of and carried away — defendant was condemned to return the slave or to pay his value in damages.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      O lar he & Bayne, for plaintiff.

      Benjamin, Bradford S Finney, for defendant and appellant.
   Spoitoed, J.

There is but one bill of exceptions in the record. It was taken to the admission in evidence of a notarial act of sale passed in New Orleans, from Jacob B. Walker (the original owner of the slave in controversy) to Stephen Truslues, the vendor of the plaintiff Lowber. The objection is based upon the ground that no such title had been set forth in the plaintiff’s pleadings.

Whatever difficulty this question might have presented under other circumstances, appears to he removed by a portion of the evidence which has been received without objection. The object of pleading is to notify the adverse party of the nature of the claim or defence, that he may be prepared to rebut it and not be surprised on the trial. On various occasions, this court has held, that if the record discloses notice previously brought home to the party so that it was impossible for him to have been surprised, the lack of more full and explicit pleadings will not compel the rejection of pertinent evidence, the existence of which was previously known to the party objecting to its introduction.

In this case, it appears from a letter written by the defendant to the plaintiff before the institution of this suit, that he was apprised of the fact that the plaintiff derived his title from Walkei', and that the validity of this title was to be tested by a lawsuit. Lowber was in possession of the slave for many months under a title in the State of Louisiana. MoGoy wishing to avail himself of the supposed advantages of possession and perhaps of an Alabama forum, took the slave away from Louisiana without the consent or knowledge of Lowber. He then wrote Lowber the letter above referred to ; it is in these words:

“ When I saw you yesterday, I told you that I would not take James, but afterwards I consulted a lawyer and he advised me to a different course, so I took him away peaceably. Now all I want is to try who owns him, and I say I do, but the court will determine that; if he is not mine, I have nothing more to say, but I know I paid for him fourteen months ago, a longtime before Mr. Walker disposed of Mm in New Orleans.”

It thus appears that the defendant was aware that both parties were to claim under Walken', the common vendor, and that the question to be litigated was, which of Walker's deeds conferred the better right. Accordingly we find him in his answer, charging the defendant Lowbei' and his immediate vendor, Truslues, with acquiring their pretended rights to the slave James, in bad faith and with notice of the transfer from Walker to himself.

We are of opinion that the defendant should derive no benefit from his act of removing the slave without leave from this State, and from the control of the party who had a lawful possession under title. ,

The sole question is, can the title of MoGoy under Walker prevail over that of Lowber under Walker ? There is written and oral evidence unobjected to, of a power from Walker to Rowley to sell his slaves then in the possession of Rowley, among which it is established that the slave James was included. The acts of sale from Walker to Truslues and from Truslues to Lowber, are translative of property, and it is proven that possession followed both acts, so that there was a continuous adverse possession in the plaintiff and his vendor as against Walker and MoGoy, from the 21th of May, 1853, the date of the sale from Walker to Truslues, up to the 19th of May, 1854, when MoGoy, who never had possession before, carried off the slave without leave, and against his promise to Lowber.

MoGoy claims under an act executed in Alabama, on the 11th of March, 1853, by Walker to himself, purporting- to be a sale of several slaves, (including the boy Jemes,) with the condition “that the possession of the said slaves should remain with the said Walker for the space of twelve months.” The evidence shows that this was really a conditional sale, amounting to a species of mortgage for an anticedent debt, as one of the. attesting- witnesses deposed that the slave James was, at the date of this act, in New Orleans, and that there was an agreement at the time, that if the amount of the debt was not paid in twelve months, the slaves were to he given up to Me Coy.

By this peculiar contract, (which has never been of reoord in Louisiana, although recorded in Mobile on the 20th of April, 1853,) the defendant put it in the power of Waüoer so to act, that an innocent purchaser in Louisiana might he deceived and defrauded. Lowber purchased in good faith and without notice a slave, to which his vendor in Louisiana exhibited a complete title from one who is conceded to have been the original owner in Alabama. Can such a vendee or mortgagee as MaCoy, who, in contracting for his own security, assented to a olause giving the control of the slave for twelve months, in Louisiana, to his vendor or mortgagor, oust an innocent purchaser, like Lowber, who bought her, within the twelve months, and received possession under a chain of title from Walleer, without any notice of the legal or equitable claims of MaCoy in Alabama?

The defendant’s allegation that Lowber had notice of his claims, is unsupported by evidence.

On acoount of the usurpation of possession of Me Coy, and his removal of the slave from this State under the circumstances disclosed, he cannot shelter himself from responsibility by pleading the non-registry of the private acts of sale from Truslues to Lowber. He has no title himself reoorded in Louisiana, and he knew that Lowber was in possession under title. His own acts led to the deception of Lowber, and he oannot be permitted to profit hy his wrong.

The judgment is in the alternative for the restitution of the slave, or damages to the extent of his value with hire. We think the damages should not be reduoed.

Judgment affirmed,


author: Merrick, C. J.

text:
    Watts, Givens & Co. v. Shropshire & Son.
    Where it appeared that defendants had sold the harge that plaintiffs illegally attached — llelfl: That defendants could not maintain an action of damages for loss of freight, hy reason of ,'the illegal seizure.
    Appeal from the Distinct Court of Jefferson, Burthe, J.

      Mott & Fraser, for plaintiffs.

      Duncan & McConnell, for defendants and appellants.
   Merrick, C. J.

This suit was commenced by attachment in the parish of. Jefferson, upon two acceptances of the defendants. The attachment was levied upon a barge, the Jenny Lind, which was subsequently released by a dissolution of the attachment, it being proven that the defendants were residents of and domiciled in New Orleans, though temporarily absent at the time the attachment issued.

The defendants have set up a reconventional demand, wherein they claim $2,250 damages occasioned by the loss of freight which they would have been enabled to earn under a contract they had made, if the barge had not been seized xxnder the writ of attachment.

We think with the District Judge, that the defendants had parted with their interest in the barge at the time the seizure was made ; hence, they had no right of ownership in the barge to vindicate. The loss of freight was not defendants’ loss. It is true that the proof does not show that animal delivery had been made by the Shropshires' agent, at the time the seizure was made. The witness, J. M. Damage, says that the barge was in his possession and under his conti’ol, as agent for defendants, and while he was in treaty for the sale of the barge, but before ho had made the sale, the defendants telegraphed him from Cincinnati, Ohio, that they had sold the barge to a Mr. Greer, of Covington, Ky., and instructed him to deliver the barge to said Greer's order; that Mr. Gi'eer subsequently gave him an order for the delivery of the barge to Mr. Errumerson, the Captain of the steamer Henry Lewis, and that subsequently to receiving the dispatch that the barge had been sold, and before he had received the order for the delivery, the barge was attached in this suit. The vendees took possession of the barge after the dissolution of the attachment.

Whether the dispatch to Swage would amount to a constructive delivery, sufficient to defeat the attachment had it been properly levied, is a question not necessary to determine. For it is clear that the mere contract of sale had divested the defendants as between themselves and Greer and Greer's vendee, of all ownership in the property. C. C. 2431. The subsequent taking of possession by Greer's vendee, must relate back to the date of the original sale. As it is not pretended that the vendee complains of any obstacles thrown in the way of the delivery of the barge to him, and inasmuch as the defendants complain only of an injury to their rights of property as owners, we think that the reconventional demand cannot be maintained.

Judgment affirmed with costs.


text:
    A. M. Feltus v. T. O. Starke.
    Suit was brought in Mississippi against defendant by attachment. No service of process was made upon him, and the only evidence of his appearance was an entry on the minutes, that “ defendant waives proof of publication, and saying nothing in bar or preclusion of the plaintiff’s action, but herein wholly make default whereby the same remains altogether undefended.” EeUl: the judgment against the defendant by the laws of Mississippi was not personal, and no action can be maintained upon it, as such, in our courts.
    Appeal from the Sixth District Court of New Orleans, Cotton, J.

      Cotton and Dorsey, for plaintiff.

      J. S. Holt, jr., for defendant and appellant.
   Merrick, C. J.

This suit is brought upon a judgment rendered in the State of Mississippi on proceedings in an attachment. No service of process was made upon the defendant. The only evidence of the defendant’s appearance to the action is found in the following entry, viz:

“And afterwards, to wit, at a Circuit Court continued and held in and for the county of Wilkinson, at the court house in Woodville, on the nineteenth day of June, 1849, came the said plaintiff by his attorney, and the said defendant waives proof of publication, and saying nothing in bar or preclusion of the said plaintiff’s action, but herein wholly make default whereby the same remains altogether undefended.”

The plaintiff contends, that the above proves the appparance of the defendance, and that the judgment was properly regarded by the lower court as one in personam,.

The defendant on the other hand contends, that the recital in the minutes, under the decisions of the courts of Mississippi, proves nothing, as there was no service of process, and that the judgment only operated upon the property attached.

Although the defendant filed no plea, and entered no formal appearance, we should have been inclined, on reference to the common law authorities, to con•sider the entry on the minutes of the court as sufficient proof of his appearance were it not for the decisions of the courts of Mississippi, wherein it appears to be held: that where there has been no actual service such recital is insufficient. See Miller v. Ewing, 8 Smedes & Marshall, 421; 2 S. & M., 213, 307; 1 Howard, 53; 4 Howard, 402; Dutch Code, 807.

The judgment, therefore, could only operate on the property attached, and cannot be made the basis of a judgment against the defendant personally. See 2 An., 571; Ridley v. Ridley, 2 Cush. R, 656; Hutchinson’s Code, p. 807; 3 Bouvier Inst., 201; Claughton v. Black, 24 Miss. 185; 1 Tidd’s Practice, 238, 240; Ib. 505, 507.

We do not think defendant has established his reconventional demand with sufficient certainty to entitle him to recover, but that he ought to be left to seek his remedy in the courts of equity of the State where the land lies, and which he says would grant relief in a like case.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the plaintiff’s demand, as well as defendant’s reconventional demand, be dismissed as in case of nonsuit, the plaintiff paying the costs of both courts.


text:
    Jacob Mussina v. William Alling et al.
    It is competent for the court to order the plaintiff to furnish security for costs, where the Clerk has neglected to exact such security, or has taken insufficient security.
    The defendant cannot proceed by rule against the security on a bond for costs of suit, but must proceed by an ordinary action. A summary remedy is provided by law for Clerks and Sheriffs against plaintiffs for their costs, and where the plaintiff does not reside in the parish where the suit is instituted, they have the same remedy against the surety for costs.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Singleton & Glade, for appellants.

      Bon/ord and 3. B. Ogden, for appellees.
   Cole, J.

The first question in this case is whether a court has the right to order the plaintiff to furnish security for costs. We think that it has this power in all cases where the Clerk has neglected to take security, or where he has taken insufficient security. R. S., p. 125, § 9; Houghton v. Houghton, 11 A. 200.

The second question is, whether the defendant in a suit can proceed by rule against the security on a bond for costs of suit; we think that he cannot, but must proceed by an ordinary action.

In Baker et al. v. Doane et al., 3 An. p. 434, the court say: “Summary proceedings being departures from the rules which govern actions generally, cannot be extended beyond the cases expressly authorized by law.”

The law provides a summary remedy for Clerks and Sheriffs against plaintiffs for their costs, and whenever the plaintiff does not reside in the parish in which the suit is instituted, they have the same remedy against the surety for costs. R. S. p. 124, §7. But the law has not authorized the defendant in a suit to pursue a summary remedy against the security for costs; and, however judicious such a remedy might be, it cannot be deemed a legal mode of procedure, as long as another course is pointed out by law, and that is the ordinary action.

We are, then, Of opinion, that the exception to the summary proceeding by rule, ought to have been sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; and that the rule be dismissed, reserving to appellees the right to proceed by ordinary action for the recovery of their claim. It is further ordered, that appellees pay the costs of both courts.


author: VooRniES, J.

text:
    J. Swasey & Co. v. Steamer Montgomery.
    Privileges must be regulated by the law of the forum, and none can be claimed except such as are granted in the Civil Code, Art. 8152, and statutes amendatory thereof.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      L. Spring, for plaintiffs.

      Mott & Fraseo', for defendant.

      Race <6 Foster, for intervenor and appellant.
   VooRniES, J.

The only question which is presented in this case is, whether the claim of John Grant should be classed as a privilege in the distribution of the proceeds of the steamer Montgomery.

His claim is based on a statute of the State of Alabama, granting him a privilege to demand toll of vessels passing through a channel excavated by him between Dauphin Island and Cider Point.

Whether any lien is granted to him on the vessel for the payment of such toll under that statute, even in the State of Alabama, is far from being clear to us. But be this as it may, wo consider it settled under the decision in the case of Lee v. His Creditors, (2 An. 600,) that privileges must be regulated by the law of the forum, and that none can be claimed except such as are expressly granted in the Civil Code. Article 3152, and statutes amendatory thereof.

Judgment affirmed.


author: Buchanan, J.

text:
    S. Condon v. E. Samory.
    A party who appeals from a judgment homologating an account, must make the heirs and creditors who are interested in maintaining it, parties to the appeal.
    The Supreme Court will notice the want of proper parties to an appeal, without a motion to dismiss
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. B. Cotton and 3. Griffon, for opponent and appellant.

      J. L. Tiesot, for defendant.
   Buchanan, J.

Clmde Samory, testamentary executor and one of the heirs of his mother,- rendered his account of executorship to the Second District Court of New Orleans, on the 11th of June, 1857, showing the amount of the effects of the succession, a detailed statement of its debts, and the names of the creditors (with the exception of two notes, payable to hearer, of which the holders are not named); and, finally, the distributive share of each of the heirs of the testatrix (including the said executor), in the balance that would remain to the credit of the succession after payment of its debts.

On the 2Jth of June, 1857, judgment of homologation was rendered in the following terms:

“ On motion of counsel for the executor of the deceased, and upon producing to the court due proof of the publications required by law of the filing of the account herein presented by him, and no opposition having been made thereto—
It is ordered, adjudged and decreed, that said account be approved and homologated, and the funds distributed accordingly.”

This judgment was signed on the 29th of June, 1857; and on the same day, the appellant, Stephen Condon, became the purchaser, at Sheriff’s sale, made under execution of a judgment against Claude Samory, of all the rights, title and interest, and hereditary share of Claude Samory, in the succession of his mother, being three-fourths of her estate.

On the 20th of July, 1857, Stephen Condon filed a petition of appeal from the judgment of homologation of the account of executorship abovementioned, alleging himself to be aggrieved thereby, and annexed to his petition, as evidence of his interest in the case, a Sheriff’s deed conveying the property adjudicated to him at the Sheriff’s sale aforesaid.

The petition of appeal prayed for citation to Claude Samory, both in his capacity of testamentary executor and in his individual capacity. An appeal bond was also filed in favor of Claude Samory in both those capacities, as obligee.

A motion has been made to dismiss this appeal on various grounds, of which it is only necessary to notice the second, which reads as follows:

“Because appellant has not made proper parties to the appeal.”

Apart from the creditors whose claims against the succession are recognized by this account, and who are of course interested in maintaining it, there are the co-heirs of Claude Samory, who have the amount of their distributive share fixed by the judgment. It may be assumed, that the appellant can only be aggrieved by this judgment, if the distributive share Claude Samory has been fixed by the same, at a less sum than he was justly entitled to. But any increase in that share will necessarily be at the expense of his co-heirs, who have not complained of the judgment. It seems to us that those co-heirs, and also the creditors who were named, and whose credits were recognized, were necessary parties to this appeal, under the well settled practice of this court. Ferguson & Hall v. Creditors, 29 L. R. 279; Armstrong v. Creditors, 8 An. 367; Matthews, Finlay & Co. v. Creditors, Opinion Book, 25, p. 487; Beer v. Creditors, ante 774.

As the case stands before us, it presents this anomalous feature, that appellant claims in the right of that very party, whom alone he has made appellee; ■and leaves out of his appeal all those parties who have an interest under the judgment appealed from, adverse to the party whom he, appellant, claims to to represent.

It has been argued, that this motion to dismiss comes too late, having been filed more than three days after the appeal was filed. The cases cited by appellant on this point, are inapplicable. This is something more than a mere irregularity in bringing up the appeal. It has repeatedly been held that the court will notice the want of proper parties even without a motion. Swearingen v. McDaniel, 12 Rob. 205; Robert v. Ride, 11 An. 410.

It is, therefore, adjudged and decreed, that this appeal be dismissed at costs of appellant.


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

text:
    State of Louisiana v. The Merchants’ Insurance Company.
    The Act of the Legislature of the 25th of April, 1858, since repealed, which declared “ that each and every incorporated Insurance Company and agency of foreign Insurance Company, in the city of 2T<m Orleans, shall be taxed five hundred dollars per annum, was in contravention of Article 123 of the Constitution, declaring that taxes should be equal and uniform throughout the State.
    The fact that the Act provided that the amount of the tax should be paid into the treasury department to be divided equally between the different TTire, Hose and Hook and Ladder Companies of New Orleans, did not render it a local^assessment for local benefit.
    APPEAL from the Third District Court of New Orleans, Dmignaud, J.

      F. W. Mo'ise, Attorney General, for the State.

      Collens & Wooldridge and C. D. Choiseul, for plaintiff and appellant.

      Lmi Peirce, for defendant.
   Spofford, J.

An Act entitled “ an Act to tax the Insurance Companies of the city of New Orleans for the benefit of the Fire Companies in the city,” was approved on the 25th of April, 1853, (Acts, page 136,) declaring “ that each and every incorporated Insurance Company and agency of foreign Insurance Company in the city of New Orleans, shall be taxed five hundred dollars per annum ; said tax to be collected by the State Tax Collector for the parish of Orleans, and as soon as collected, the amount of said tax shall be paid into the City Treasury to the credit of the Eire Department, to be divided equally between the different Eire, Hose and Hook and Ladder Companies, in such manner as may be determined by a majority of the Eire-men of said companies.”

This Act was expressly repealed on the 16th of March, 1857. Acts, p. 142.

The present suit was instituted on behalf of the State, to recover of the Merchants’ Insurance Company in New Orleans $2,000, as arrearages of taxes due under the law aforesaid, for the years 1853, 1854, 1855 and 1856.

The defence that the law was unconstitutional was sustained by the District Judge and the State has appealed.

We regard this annual imposition as a tax. It is levied by the State. It is collectible by the State Tax Collector. It is now sued for by the State alone. Article 123 of the Constitution applies to such a case as this : “ Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied; the Legislature shall have power to levy an income tax, and to tax all persons pursuing any oeoupation, trade or prof ession.”

The Legislature has not the power to tax a portion of the persons pursuing a given occupation, trade or profession. If it taxes one it must tax all in the State of the same class. Indeed, it has done so in the Revenue Act of March 15th, 1855, sec. 3, pp. 504, 5, by which it seems that an annual tax of $500 was levied to be collected “ from each insurance company incorporated by the laws of this State and transacting an insurance business herein.” Revised Statutes, p. 461.

But it has been argued that this case comes within the principles announced in Yeatman v. Crandall, 11 An. 220, andthe cases there cited; in other words, this is not a State tax, but a local assessment for a local benefit.

Wo do not perceive the analogy. The tax here sued for, is not an assessment upon property for a benefit done in saving of improving that identical property, and thereby directly enriching its owner, as was the case in regard to the alluvial lands preserved from inundation by levees, or the swamps in the rear of New Orleans reclaimed by the draining company, or the city lots made accessible and valuable for building purposes by opening of new streets, or the adjacent properties enhanced in value by the construction of banquettes and the paving and shelling of highways. In such cases there is a direct, palpable and necessary connection between the burden and the benefit, and a fair and equal adjustment can be made by both.

But in the case before us there is no property improved or assessed; all is conjectural and arbitrary; one class of corporations is taxed an invariable sum for the benefit of another class; there is no possibility of ascertaining whether the taxis a quid pro quo ; the fire companies are not compelled by the law to do anything for the insurance companies; a bounty is secured to the fire department by confiscating the money of the defendants, without providing that any service shall be rendered to the defendants by the fire department ; and even if this could, for a moment, be regarded as an assessment for benefits conferred, its inequality is glaring; every owner of buildings and other combustible property in New Orleans, who is either wholly or in part his own underwriter, is presumed to be benefited by the fire department in the same way as the insurance companies are. Why should the companies alone pay taxes for this common benefit ? Again: large amounts of property in New Orleans are insured abroad in offices which have no public agencies here; those offices are likewise as much benefited by the fire department as the New Orleans offices are; and yet they can be made to pay no tax under this law which is personal to the companies domiciled or represented in New Orleans.

Finally, it was urged that the cases of the Charity Hospital v. De Bar, 11 An. 385; The Same v. Stickney, 3 An. 657 and 2 An. 551, are precedents from which the constitutionality of the tax in this case might be inferred. We do not think so. Those cases only affirmed the constitutionality of a law which exacts as a prerequisite to a license for every public ball or concert, ten dollars; for each theatre, annually, five hundred dollars; for each circus, one hundred and fifty dollars ; for every managerie, fifty dollars; and every show, twenty-five dollars; for which the exhibitors of these spectacles must furnish to the Mayor of New Orleans the receipt of the Treasurer of the Charity Hospital. Revised Statutes, p. 74, sec. 10. This was correctly held to be, in no just sense, an exercise of the power of taxation, but only a proper exercise of the police power inherent in the State sovereignty. Public spectacles concern the State, as they affect the public order and morals; they may be suppressed or licensed, and if licensed,, the supreme power may always impose such conditions as it sees fit upon the managers ; if the charitable institutions of the country are aided by the price demanded for licenses for theatrical and other public shows, no provision of the Constitution is infringed thereby.

But an attempt to tax unequally and partially the business of insurance upon marine and fire risks, (a business not only lawful, but in the highest degree commendable and useful,) cannot be rendered constitutional even by handing over the proceeds of the taxes to another equally useful class of men. The imposition is neither an assessment upon property for a benefit conferred and in proportion to the benefit, nor yet an exercise of the police power in affixing terms to the granting of h'censes for a pursuit which affects public order and good morals ; but it is, in effect, an arbitrary exercise of the State power of taxation upon a portion of those who follow a certain occupation to the exclusion of the rest, and, as such, must be pronounced unconstitutional, null and void.

Judgment affirmed.

Buchanan, J.

The Act of 1853, taxing insurance companies doing business in the city of New Orleans is, to my mind, a clear violation of the first clause of the 123d Article of the Constitution of 1852, which ordains that taxation shall be equal and uniform throughout the State.

Eor this reason I concur in the decree in this case.

Merrick, C. J.

Conceding that the Legislature may direct taxes to be levied upon subdivisions of the State for local purposes, still it does not appear to me that the tax in the present instance is equal and uniform. I therefore concur in the decree.


author:
Spoffokd, J. Buchanan, J.,
      Cole, J., Merrick, O. J.,

text:
    State v. Slave Kitty.
    The Act of March 9th, 1855, “ to provide for the trial of slaves accused of capital crimes in the parish of Orleans,” was not repealed by the Act of 19th March, 1857, “ relative to slaves.” The Acts are not upon the same “ subject matter.” The former is a. local law providing a local tribunal for certain specified cases; the latter is a general law applicable to the State at large, and the rule is, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two Acts are irreconcilably inconcistent.
    The Act of 19th March, 1857, “ relative to slaves,” repeals all laws, so far as the offences of slaves, specially made such by statutes relative to slaves, alone, are concerned, for the former Act contains no clause saving pending prosecutions or providing for the punishment of persons who had committed crimes under the repealed laws.
    The word “ whoever” in the Act of 14th March, 1855, u relative to crimes and offences,” as used in the first section thereof, comprehends slaves considered as persons, as well as freemen. And slaves, in our law, when held to answer for offences, are treated as persons, and may be punished under the general laws relative to crimes and offences, as well as under special statutes framed exclusively for that class of our population.
    It is too late to raise objections in the Supreme Court as to the time of calling the jury and the notice to the master of the slave where no such objections were made at the trial.
    The voluntary statements of the prisoner before accusation received against her.
    APPEAL from the First District Court-of New Orleans, Sunt, J.

      S. W. Mo'ise, Attorney General, for the State :
    The judgment in this case is sought tó be reversed on the ground, that the court erred in admitting the confessions of the prisoner, (Record, p. 8.) The hill of exceptions shows, that Kitty went to the witness and said, “ I am Kitty, the slave of Mr. Smelser; I have something to reveal to you about Mr. Smelser’s death. He was a poisened man.” Up to this time the witness had not said a word to Kitty. She had sought him voluntarily — voluntarily stated to him, that Smelser had been poisoned — and that she had something to reveal about it. The determination to confess seems to have been upon her mind— and the interview desired by her with the witness appears to have been for the purpose of carrying out this determination. After calling a by-stander — the witness observed to- Kitty that “ she must now tell me all about it,’ that it would be better for her to do so, that it would be better for her to tell the whole truth about the matter.”
    It would be difficult to exclude this confession, if judged by the standard of defendant’s counsel, (pp. 6, 7,) as fairly considered, one would suppose that the advice given by the witness could not have induced her to criminate herself, had she not previously resolved to make a clean breast of it. But the rule of law, as will he presently shown, is now well settled, that the inducement that will exclude a confession must be actually, or constrruetimehj held out by a person in authority..
    For many years there appears to have been much difference of opinion among the English Judges, as to the admissibility of confessions made under inducement to private persons — but latterly the doctrine has been established as heretofore stated. In Rex v. Pimn, and Rex v. Slaughter, 4 G. &. P. 543, (cited by defendant’s counsel,) Bousanquet, J., excluded confessions made after inducements by persons not in authority. So also did Parke and Little-dale, JJ. in Rex v. Kingston, 4 O. & P., 387. So also did Gurny, B., in Rex v. WaTlcty and another, C. O. & P. 175, and Patteson, J., in Rex v. Thomas, C. O. & P. 353. Alderson, B., entertained strong objections to the admissibility of confessions under these circumstances, hut said there were opinions which he was bound to respect opposed to his own: Rex v. Pountney, 7 C. & P., 302 ; and Parke, B., said, that there was a difference of opinion among the Judges on this subject, 7 O. & P. 796, Rex v. Speneer. This was in 1838. After this a conference seems to have taken place among the Judges, the result of which was announced by Patteson, J. in 1839. He said: “It is the opinion of the Judges that evidence of any confession is receivable unless there has been some inducement held out by some person in authority.” Regina v. Sarah Taylor, 8 O. & P., 733. This announcement of the opinion of the Judges seems to have rendered the subsequent decisions uniform. In Regina v. Laugher, 2 C. & K., 225, the confession was excluded because, though made to a person not in authority, yet it was made in the presence of a person in authority — a constable. In Regina v. Garner', 2 C. & K. 920, it was held: that “ in order to exclude evidence of a prisoner’s confession, it must appear affirmatively, that some inducement to confess was held out to him by, or in the presence of, some one holding authority.” These two last decisions were in 1846. Afterwards (1852) the subject was considered by the court of criminal appeal (established in 1848), Baron Parke said, “ The cases on this subject have gone quite far enough, and ought not to be extended * * * if the threat or inducement has been held out, actually, or constructively by a person in authority, it cannot bo received, however slight the threat or inducement, and the prosecutor, magistrate, or constable is such a person, and the master or mistress may be. If not held out by one in authority they are clearly admissible.” Regina v. Moore, 12 E. L. & Eq. 506. Reginav. Baldry was also a case reserved. The same eminent Judge said: “ By the law of England in order to render a confession admissible in evidence, it must be perfectly voluntary, and there is no doubt that any inducement in the nature of a promise, or of threat held out by a person in authority, vitiates a confession. The decisions to that effect have gone a long way. Whether it wnuld not have been better to have left the whole to go to the jury, it is now too late to inquire, but I think there has been too much tenderness towards prisoners in this matter. I confess, I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confession, — and-I agree with the observation of Mr. Pitt Taylor, that the rule has been extended quite too far, and that justice and common sense have been sacrificed at the shrine of mercy.” Regina v. Sleeman, 22 E. L. & Eq. 606.
    The counsel for defendant cites Greenleaf, who differs with Mr. Jay only in this : the former considered that there was a difference of opinion among the Judges on the question in controversy — while the latter lays down the rule that is urged by the State. The first edition of Greenleaf was published in 1842. At the time the text on the subject of discussion -was written by Mr. G, he probably, had not seen, as he does not cite, the opinion of the Judges as announced in 1839 by Patteson, J., in Regina v. Sarah Taylor. The subsequent cases cited in this brief were certainly unknown to him, as the earliest of them was not rendered until 1846. In the edition of 1852, Mr. G. publishes in full the opinion of the Court of Criminal Appeal in Regina v. Moore.

    But if the rule which Mr Greenleaf considers the best, and which Baron Parke said “ it would have been better to have held,” be adopted by this Court — the result will be the same. Under that rule the inquiry would be: uwere the promises of the witness sufficient to overcome the mind of the prisoner'? ”
    Test the admissibility of the confession by this rule. Kitty was not under arrest — she was not suspected — it was not known that Smelser had died of any but natural causes. He had been publicly interred — there had been no coroner’s inquest. Kitty of her own free will went to the witness — to whom she was a stranger — although he was not to her. She voluntarily told him that Smelser had been poisoned — when the witness — after calling a by-stander said to her “ it would be better for her to tell the whole truth about the matter ” —“ it would be better for her to do so ” — and these words, uttered under these circumstances, are to be construed into “ a promise sufficient to overcome the mind of the prisoner.” With great respect, it is submitted that such a decision would belong to the class of those cases in which Baron Parke says “justice and common sense have been sacrificed at the shrine of mercy.”
    In reference to the case of the Commonwealth v. Knapp, cited on the other side, it is to be observed — that the rule as laid down was not as stated by the Court — at least the rule in England — whatever it may have been in Massachussetts — as it is clear that there was a difference of opinion among the English Judges. Indeed, Morton, J., said “he has doubted whether confessions, with the accompanying circumstances, ought not always to be received in evidence.” And of the same opinion was the late Judge Preston. See State v. Eamelin, 6 An., 168-9.

      Morehouse was not a person in. authority. The counsel for prisoner calls him the prosecutor — but for what reason does not appear.
    As to Kitty’s being handcuffed — see State v. Nelson, 3 A., 497.

      3. H. Browne, for the prisoner and appellant:
    The only question to be decided, is, whether the Judge a quo erred in permitting these confessions to go to the jury ?
    This is a case of extra-judicial confessions. The confessions were made to a person who became the prosecutor of the prisoner.
    A confession must never be received in evidence, where the defendant has been influenced by a/ny threat or promise. To say that it will be better for him if he will confess, or worse if he will not, is sufficient to exclude the declarations of the prisoner. — Starlde’s Ev. The law cannot measure the force of the influence used, or decide upon its effect on the mind, and therefore excludes the declaration, if any degree of influence has been exerted. — 2 Russell on Or. 645, marg.; 2 Starkie’s Ev. 49, marg.
    If apy inducement, by promise of favor or by threat, be held out to the prisoner, as by telling him he had better tell all he knew, or he had better tell where he got it, &c., his confession cannot be given in evidence against him. —1 Archb. Or. Pr. and PI. 125.
    And where a threat or promise is thus used, it must appear to have been used by some person concerned in apprehending, examining or prosecuting the prisoner, or by the person to whom the confession is made, to have the effect of preventing such confession from being given in evidence. — 1 Arch. Cr. Pr. and PI. 128.
    Its admissibility is made to depend on its being free from suspicion, that it was obtained by any threats of severity, or promise of f mor and every influence, even the minutest. — State v. Field and Webber, Peck’s Rep. 140; Phil. Ev. O. & H. notes, vol ii, No. 206, p. 236.
    It was held in the case of the Queen v. Garner, (decided in 1848) that the language “it would be better for her to confess,” when addressed by the mistress’ physician, in presence of the mistress, to a servant girl, was an inducement, and the confession was excluded. 61 Eng. O. L. Rep. 920.
    The same .decision was affirmed by a full bench of the High Court of Criminal Appeals in England, as late as 1852, [Regina v. Baldry, 12 Eng. L. and E. Rep. 596], Lord Chief Baron Pollock, deciding that, “ when the admonition to speak the truth had been coupled with any expression importing that it would be better for him to do so, the confession was not receivable, the objectionable words being, that ‘itwouldbe better to spealo the truth,' because that imported it would be better for him to say something.”
    Saying to a prisoner that “ it would be better for him to confess,” or words to_ that effect, has been repeatedly held to be such an inducement offered, as will exclude his eonfessions. — State v. Nelson, 3 An., 499. See also Rex v. Walhley et als, 6 Car. and P. 175.
    It may be urged that Morehouse had no authority over the defendant at the time she made her statement, and hence her confessions were properly admitted in evidence.
    Mr. Joy, on Confessions, maintains the unqualified proposition that “ a confession is admissible in evidence, although an inducement is held out, if such an inducement is held out by a person not in authority over the prisoner.” But our own accurate and learned writer on the Law of Evidence, Mr. Green-leaf, after examining the authorities cited by Mr. Joy, says: “ Upon a deliberate revision of the point, I have concluded to leave it where the learned Judges have stated it to stand — -as one on which they were divided in opinion.” 1 Greenl. Ev. § 223, note 1.
    In this country there is a growing unwillingness to rest convictions on confessions alone. The confessions of a party, it has been held in several States, not made in open court, or on examination before a magistrate, but to an individual, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction. — People v. Hennessy, 3 5 Wend., 147; States. Field, Peck’s Rep., 148; State v. Long, 1 Hayw., 455.
    “A confession, at least in a capital case, from the nature of the thing, is a very doubtful species of evidence, and to be received with great caution. — State v. Long, 1 Hayw., (N. Oa.) Rep., 455.
    On referring to Wharton’s Criminal Law, p. 260, note X, it will be seen that most of the German States have adopted our own system : “ a voluntary confession, says Mittermain, (2 Straionfahren, 114), is not now to be made the basis of a prosecution; that the fact that such an accusation is an unsolicited confession, in consequence of its unnaturalness, must excite a doubt of the intelligence of the self-accuser, and it therefore becomes the duty of the Judge not to content himself with such a confession, but be more than doubly cautious in the exposition of the res gestae, Sc."

   Spoffokd, J.

The slave Kitty was tried before the Judge of the First District Court of New Orleans and a jury of six slave holders, pursuant to the Act of March 9th, 1855, (Session Acts p. 37.) The accusation drawn up by the District Attorney contained two counts, one for administering poison to Leri Smelsw, and the other for the murder of said Smelser.

The prisoner was found “ guilty without capital punishment,” and she was sentenced to hard labor in the penitentiary for life by the Judge of the First District Court of New Orleans on the 24th March, 1857.

She has appealed to this court.

It is suggested, that the tribunal which tried and sentenced her was without jurisdiction; that the Act of March 9th, 1855, “ to provide for the trial of slaves accused of capital crimes in the parish of Orleans,” was repealed by the Act of March 19th, 1857, “ relative to slaves.” Session Acts, 229.

These Acts are not upon the same “ subject matter.” The former is a local law providing a local tribunal for certain specified cases. The latter is a general law applicable to the State at large.

The rule upon this subject is well stated in the recent work of Mr. Sedgwick upon statutory and constitutional law, 123: “ In regard to the mode in which laws may be repealed by subsequent legislation, it is laid down as a rule, that a general statute, without negative words, will not repeal the particular provisions of a former one, unless the two Acts arc irreconcilably inconsistent: as, for instance, the statute 5 Eliz. O. 4, that none shall use a trade without being apprentice, did not take away the previous statute 4 and 5 Philip and Mary, O. 5, declaring that no weaker shall use, &c. The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner and not expressly contradicting the original Act, shall not be- considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter Act such a construction, in order that its words shall have any meaning at all.”

In the Succession of Fletcher, 12 An., 498, (a case quite analogous to the present; for, in that case, the last of the two Acts had the same repealing clause,) we held: that it is only where there is an obvious and necessary inconsistency between the two Acts, that the earlier statute must be considered as repealed by the latter.

We there decided, that a power given generally in sweeping terms, to the Auditor of Public Accounts to employ attorneys to recover money due the State from any cause whatever, was exclusive of the Supreme and District Courts of the city of New .Orleans, so as to save a previous local statute directing the Attorney General to represent the State in such cases in the city of New Orleans.

The doctrine of that case should control the present.

For, in this case as in that, the two statutes may well stand together. Indeed, both were originally passed at the same session of the General Assembly in 1855, as parts of one general system of revised statutes; but the Act of March 15th, 1855 (p. 377) “relative to slaves and free colored persons,” having been declared unconstitutional by this court in the case of the State v. Slave Harrison, 11 An., 722, some parts of it, including the general provisions in question, relative to the trial of slaves, were reenacted without alteration in the Act of March 19 th, 1857, “relative to slaves,” in such a form as it was supposed would obviate the constitutional objection found against the former Act.

The local Act of March 9th, 1855, under which the prisoner was tried, is, therefore, held to be in force. It has also been objected, that the law of March 19th, 1857, “ relative to slaves,” which denounces certain offences of slaves and presci’ibes the punishment therefor, repeals all laws upon the same subject-matter, and, therefore, repeals all statutes in force at the time the prisoner was tried and convicted, relative to the crimes with which she stands charged. So far as the offences of slaves, specially made such by statutes relative to slaves alone, are concerned, this doctrine is correct, as was held by this court in various cases decided last summer at Monroe, Alexandria and Opelousas. Eor the Act of March 19th, 1857, contains no clause saving pending prosecutions, or providing for the punishment of persons who had committed crimes under the repealed laws. The first count in this accusation charging the prisoner with having administered poison to Levi Smelser could not now, therefore, sustain a judgment of conviction.

But the second count contains a formal charge of murder. And the Act of March 14th, 1855, “ relative to crimes and offences,” in its first section declares, that “ whoever shall commit the crime of willful murder, on conviction thereof, shall suffer death.” The word “whoever” comprehends slaves considered as persons, as well as free men. And slaves, in our law, when held to answer for offences, are treated as persons; and it has been decided, that they may be punished under the general laws relative to crimes and offences as well as under the special statutes framed exclusively for that class of our population. State v. Dick, 4 An. 183; State v. Jerry, ib., 191.

The count for murder would, therefore, support a verdict and judgment for that offence, charged to have been committed by the prisoner on the 7th May, 1855.

The objections as to the time of calling the jury and the want of proper notice to the master of the slave, should have been made in the tribunal before which the prisoner appeared, pleaded and submitted to a trial. She was there represented by counsel who interposed no objections of that kind, and it is too late to raise them here.

One question alone remains. It gfows out of a bill of exceptions taken to the refusal of the Judge to instruct the jury to disregard certain confessions of the prisoner. The bill is in these words: “Be it remembered, that upon the trial of this cause, and upon the cross-examination of Joseph Morehouse, a witness for the prosecution, to prove the confessions of the accused, the witness said: “ the accused came to my yard where my shop is, she said she came voluntarily, of her own accord; she said she came to me because she knew I was the friend of her master; she said that she had been hand-cuffed; she had the manacles on her hands; that she was afraid she was going to be carried out of the State to Texas. I did not know who Kittyy was. She approached mo just as Mr. Hall was leaving the gate; she said, “I am Kitty, the slave of Mr. Smelser; I have something to reveal to you about Mr. Smelser's death. He was a poisoned man.” This startled me, and I immediately called Mr. Hall back. I, then, in the presence of Mr. Hall, said to her, that “ she must now tell all about it, that it would be better for her to do so, that it would be better for her to tell the whole truth about the matter.” Whereupon the counsel for the accused asked the court to instruct the jury to disregard the confessions of the accused, upon the ground, that they were inadmissible: the court refused, and the accused by her counsel tendered this bill of exceptions,” &c., &c.

It would seem from this bill, that whatever confessions the prisoner made had already gone to the jury before any objections were taken; and, that the matter of inducement having been drawn out in the cross-examination of the party to whom the confessions were made, the prisoner’s counsel then asked the court to charge the jury to disregard all that they had heard from this witness tending to implicate her with the crime, upon the ground that her statements were not voluntary.

A statement to a party accused by a person in authority, that it would be better for him to confess, will vitiate a subsequent confession. 1 Grcenleaf Ev. §219 etseg.

But it must here be observed, that so far as we are informed by the bill of exceptions, no charge had been made against the prisoner, and no suspicion excited; indeed, it would seem from the expression of the witness, that he was startled to hear that Smelser had been poisoned, that it was not supposed he had died other than a natural death. The prisoner sought the witness voluntarily and unaccused; she volunteered the statement, that the deceased had been poisoned; the subsequent remark of the witness, a person not in authority over her, that it would be better for her to tell the whole truth about the matter, did not point to a confession by Kitty of anjr complicity on her part with the poisoning; she was not told to confess; indeed, it does not appeal’, that she was led to think herself suspected; how, then, can it be reasonably inferred that by the remark of the witness she was induced to criminate herself? We think this combination of circumstances is sufficient to justify the refusal of the Judge to instruct the jury to disregard entirely the confessions of the accused. “Promises and threats by private persons,” says Greanleaf, vol. 1 §223, “may perhaps, be treated as mixed questions of law and fact; the principle of law, that the confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private individuals who employed them were sufficient to overcome the mind of the prisoner, being left to the discretion of the Judge, under all the circumstances of the case.” The case of the State v. Jonas, 6 An., 695, goes much further that this in favor of the admissibility of the confessions of slaves.

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

Buchanan, J.,

concurring. The appellant was tried and convicted on the 14th March, 185^, five days previous to the passage of the Act of 1851, No. 232, relative to slaves ; which, by its 43 section, was in force from and after its passsage.

That statute can, therefore, have no operation upon this case.

I concur in the decree affirming the judgment of the District Court.

Cole, J.,

dissenting. I am of opinion that the law is repealed'under which the special tribunal for the trial of the accused was formed. She was tried under Act No. 43, p. 37, Session Acts, 1855, being- “ an Act to provide for the trial of slaves accused of capital crimes in the parish of Orleans.”

On the 19th of March, 1857, “an Act relative to slaves” was passed. Session Acts, 1857, p. 229.

An examination of this Act shows that it was intended for the whole State ; it enacts the different crimes for which slaves may be prosecuted and punished, and declares the mode of prosecution and the constitution of the tribunal which is to have jurisdiction.

This Act appoints the place of execution of slaves, and the way they are previously to be appraised, and how the owner is to be paid the value of his slaves that are condemned.

It points out the nature of evidence that may be received, and the degrees of consanguinity within which a person shall not be a good juror for the trial of slaves.

In De Armes' case, 10 M. 172, Martin, J., says : ’ “ A statute is said to repeal a former one when it is contrary thereto in matter.” Leges posteriores, priores contra/i'ias abrogcmt.

The statute of 33 H. 8, 3, provided, that any person examined before the king’s counsel, who confesses treason, shall be tried in the county where the king- pleases, and it was held to be repealed by that of 2 Ph. and M,, which directs that all trials for treason shall be according to the common law.

The reason is apparent, says Judge Martin, “for the latter statute directed that all trials for treason, which include those of persons mentioned in the statute of Hen. 8, should be in the course pointed out by the common law, and this was contrary to the provision of the statute of H. 8.

“A statute is also said to repeal a former one, where it enacts a thing inconsistent with it. So the statute of 1 Ed. 6, 2, which provided that ‘ process shall be in the king’s name,’ was held to be repealed by that of 1 and 2 Ph. and M. 2, which provides, that ‘ all ecclesiastical jurisdiction of bishops, &c., shall be in the same estate as to process, as it was in the time of H. 8.’ ‘ Eor the two provisions were inconsistent.’ ”

In the same case of De Armas, Judge Martin says: “ That old laws are abrogated and repealed by those which are posterior, only when the latter are couched in negative terms, or are so clearly repugnant to the former, as to imply a negative. Second, a particular law is not repealed by a subsequent general law, unless there be such repugnancy between them, that they cannot both be complied with under any circumstances.”

If we apply these principles to the case at bar, it will appear that the Act of 1855, No. 43, under which the prisoner was tried, has been repealed:

The form and mode of trial of slaves under the Act of 1857, is materially different from that of 1855 ; the latter Act provides, “That such slaves as may be accused of capital crimes in the parish of Orleans, shall be tried by a tribunal composed of the Judge of the Pirst District Court of New Orleans and six citizens, slaveholders in said parish, chosen and convoked by said Judge.” .The Act of 1857, provides, “ That whenever it shall be necessary to try a slave accused of a capital offence, the Justice of the Peace before whom the complaint shall have been made, shall notify another Justice in the parish of the charges that have been preferred against such slave, and shall require such Justice to attend at his office the day after the receipt of such notification, or as soon afterwards as practicable, for the purpose of chosing ten persons, owners of slaves, to assist at the trial of the accused.”

It cannot be denied that the Act of 1867 is a general law for slaves in every part of the State, because it contains an enumeration of the crimes of slaves; of their mode of trial; of their appraisement when condemned; of the mode of being paid; of the number of jurors a slave accused of a capital crime has the right to challenge peremptorily; and provides, that no slave shall be entitled to his freedom, under the pretence that he has been, with or without the consent of bis owner, in a country where slavery does not exist, or in any of the States where slavery is prohibited; that no slave shall be admitted as a witness either in civil or criminal matters, for or against a free person of color, except in case such free individual be charged with having raised or attempted to raise an insurrection among the slaves of the State, or adhering to them by giving them aid and comfort in any manner whatever.

It must also be admitted, that the Act of 1857 is inconsistent with that of 1855, so far as the mode of trial is concerned, and they are so repugnant to one another, that both cannot exist.

The Act of ’55 gives the slave in capital trials only, the Judge and six jurors; the Act of’57, entitles them, in capital cases, to two Justices and ten jurors, of which one justice and nine jurors shall constitute a quorum.

The Act of '57 also contains some privileges, such as the number the slave is entitled to challenge without cause, and the exclusion of certain relations of the proprietor of the accused which are not in the Act of ’55.

As I consider the Act of 1857 is a general law for slaves in the whole State, and as its provisions a,re inconsistent with and repugnant to the Act of’55, and as there is no repealing clause in the Act of 1857, of all laws or parts of laws conflicting with the provisions of this Act, and all laws on the same subject, matter, I believe the Act of 1855 is repealed, and the judgment ought to be reversed.

Merrick, O. J.,

dissenting. I am not able to concur in the decree in this case. I think With Mr. Justice Cole, that the Act approved the 9th of March, 1855, to provide for the trial of slaves accused of capital offences in the parish of Orleans is repealed.

That Act, by itself, is Wholly inadequate for the trial of slaves, as has been shown by Mr. Justice Cole. It can only have effect when its provisions are aided by the general law on the subject of the trial of slaves. It is within the express provisions of the repealing clause of the Act approved 19th of March, 1857, and it is but reasonable to suppose it is also within the intendment of that Act; for it cannot have any effect without the aid of the very statute which declares its repeal.

But I think there is an objection to this prosecution, of a character still more grave. The law, in my opinion, punishing the offence, has been repealed. The repeal of a penal statute during the pendency of a criminal prosecution under it, has always been held to be fatal to the prosecution, even though the action might bo pending on appeal. This well settled rule of law has been recognized by this court and enforced under this statute, as has been remarked in the opinion in this case just pronounced. See also State v. Johnson, 12 L. R. 547; Bishop’s Criminal Law, sec. 103.

It is conceded that the offence charged in the first count of the information, viz., that of having administered poison to Levi Smeher, is repealed, because, as I understand the argument, the offence is punished by the 5th section of the Act of 1857 in question, it being specially applicable to slaves, and the general statute on the subject of crimes makes no mention of an offence in precisely the same terms ; that of administering poison with an intent to commit the crime of murder, being alone punished by the Act relative to crimes and offences.

This concession makes it only necessary to consider the offence charged in the second count. The latter count charges that the prisoner at, &c., willfully, feloniously, and of her malice aforethought, did kill and murder one Levi Smeher, contrary to the form of the statute, &c.

Now, I find that the first section of the Act of 1857, relative to slaves, is in these words:

“ Be it enacted, &c., That any slave who shall commit the crime of murder, shall be punished with death,”

If I concede that the Act of 1856, relative to crimes and offences, which declared in its first section that whoever shall commit the crime of murder shall suffer death, could be applied to slaves, I do but admit that there was a law or a part of a law on the subject-matter, of the punishment of a slave who should commit murder, in force on the 19th day of March, 1857. Eor if it be applied to the punishment of slaves in whole or in part, it embraces in its subject-matter the punishment of the crime of murder, when committed by slaves. Now, if I refer to the repealing clause of the Act approved that day, I find, in the most sweeping terms, it repeals all laws and parts of laws conflicting with the provisions of this Act, and all laws on the same subject-matter.

Again, if I read the first section of the Act relative to crimes in this way every person, whether white, black or a slave, who shall commit the crime of willful murder, on conviction thereof, shall suffer death, I shall find that I have brought the same in conflict with the first section of the Act relative to slaves, which has provided for the punishment of the slave who should commit murder. The first section of the Act of 1855, relative to crimes and offences, is therefore repealed, so far as it affects slaves, both because it is on the same subject-matter and because it is in conflict with the Act of 1857.

If it be objected that the crime of murder is of that atrocious character that it cannot be supposed that the Legislature intended a general pardon and amnesty to all slaves under prosecution for such offence, I can only reply, that it is admitted that the Act in question operates the general pardon of the heinous offences committed by the same class of persons. Moreover, it is in conformity to the repealing clause of the Act of 1855 relative to slaves and free persons of color hold unconstitutional, and the Act relative to dealing with slaves, also approved the 19th day of March, 1857, p. 183.

The rule of law on the subject of the effect of a general repeal of a penal statute is well known, and the repealing clause is explicit. It is sufficient, I think that ita lex scripta est.


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

text:
    Pooley, Nichol & Co. v. Thomas A. Snow.
    The garnishees, in answer to interrogatories, denied indebtedness to defendant, but acknowledged the possession of a note past due and protested which the garnishees had received from the defendant (payee of the note) who was their debtor; the said note exceeding the amount which was due them by defendant and received with an agreement that when paid, its proceeds should be applied, 1st, to the payment of defendant’s indebtedness to garnishees ; 2d, to that of various other creditors of defendant. Judgment was rendered condemning the garnishees to pay the judgment of plaintiff against defendant, or, in default thereof, to deposit in court the promissory note abovementioned. Held: The judgment appealed from is manifestly erroneous. No money judgment could be rendered against the garnishees, because the answer denied indebtedness and the traverse neither alledged nor was it proved that any money of defendant came into the hands of the garnishees. As to the alternative judgment for the delivery of the note, we hold it to be irregular, because it annuls the pledge of the note for the security of defendant’s debt to the garnishees, a contract which could only be annulled by a direct action.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Mott & Fraser, for plaintiffs.

      Clarice <Sts Bayne, for defendant and appellant.
   Buchanan, J.

Upon judgment in favor of plaintiffs against defendant, execution issued, upon which a seizure was made in the hands of Voorhios, Griggs & Co., and interrogatories were propounded to said firm as garnishees. Their answers to interrogatories denied indebtedness to defendant, but acknowledged the possestion of a note, past due and protested, which the garnishees had received from defendant (payee of the note) who was their debtor; the said note exceeding the amount which was due them by defendant, and received, with an agreement that, when paid, its proceeds should be applied, first, to the payment of defendant’s indebtedness to garnishees, and secondly, to that of various other creditors of defendant. The answers of garnishees to interrogatories were traversed, on the ground that they disclosed an illegal and fraudulent preference, and that the note held by plaintiff ought to be delivered up in satisfaction of the execution. Upon this issue, the District Court rendered a judgment condemning the garnishees to pay the judgment of plaintiffs against the defendant, and in default thereof, to deposit in court the promissory note mentioned in the answers to interrogatories.

The garnishees have appealed. The judgment appealed from is manifestly erroneous. No money judgment could be rendered against the garnishees for the amount of the judgment of plaintiffs against defendant, or for any other sum, because the answers denied indebtedness; and the traverse neither alledged nor was it proved, that any money of defendant had come into the hands of garnishees. As to the alternative judgment for the delivery of the note, we hold it to be irregular, because it annuls the pledge of the note for the security of defendant’s debt to garnishees, a contract which could only be annulled by a direct action.

Judgment reversed, and judgment for garnishees and appellants with costs in both courts.

Voomiies, J. recused himself for relationship to one of the parties.

Merrick, C. J.

The execution is the basis of the proceeding in garnishment, without which the latter cannot be sustained. 8 Rob., 244; 8 An., 880; 9 An., 460. After the death of Thos. A. Snow, 6th of September, the execution ought to have been returned and the proceeding should have been cumulated with the mortuary proceedings or conducted contradictorily with the administrator.

It was not then the proper proceeding to attack the pledge of Griggs, Voorhies & Co. nor to enforce a preference against Snow’s estate, I therefore concur in the judgment in this case,