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    State v. Alexander Viaux.
    Defendant’s counsel having objected to an affidavit made by the deceased for the arrest of the prisoner, as evidence of a dying declaration—parole proof was offered and admitted, that when tlie deceased made his declarations to the magistrate, he considered himself in a dying state—to which evidence a bill of exceptions was taken. By the Court: After the defendant had himself objected to these declarations, reduced to writing in the form of an affidavit for his arrest—he could not with any propriety turn round and object to evidence being given by parol of what the deceased did declare before the magistrate.
    When the accused declares himself ready for trial and accepts the jurors, he cannot afterwards object that the list of jurors, with which he was served, contained the names of persons who were exempt and of persons who had served on the Grand Jury, by which the indictment was found.
    So it is too late, under the same state of facts, to object that the accused was not served with a list of the names of jurors summoned by special vemre.
    The District Courts have authority, under the Act of 1817, to appoint an attorney to prosecute on behalf of the State in the absence of the District Attorney.
    from the District Court, Parish of St. Martin, Voorhies, J.

      Hardy, District Attorney, 15th District, for the State.

      Voorhies & Simon, for defendant.
    MOTION EOR A NEW TRIAL.
    The defendant in the above entitled cause, by his undersigned counsel, begs leave to move this honorable Court for a new trial, on that part of the verdict of the jury, by which he has been found guilty of manslaughter, under the second count of the indictment, for the following reasons, to wit:
    1st. Because said defendant has been served with a copy of the whole pannel of the jury, including therein a list of the jurors, who, having served on the grand jury, by whom the bill of indictment was found against him in this case, were legally and necessarily exempted from serving as petit jurors on the trial of this cause, and also including therein the names of certain jurors who were exempted by law and by the Court from serving on the trial of said cause. .

      2d. Because after the regular pannel was exhausted, the Court having ordered two subsequent and new lists of jurors to be made, and the lists so made having been returned by the Sherilf successively during the trial, the defendant was not served with copies of the said new lists or venires, but was immediately called upon to make his challenges, as the jurors were called to the book to be sworn; without his having had any opportunity of consulting or reflecting upon the jurors by whom he was to be tried, or of ascertaining the objections he had to base his challenges upon. All which legal advantages he was deprived of, contrary to law; and all which he did not waive, and could not be waived.
    3d. Because the verdict of the jury on the second count of the indictment, is contrary to law and evidence:
    Wherefore, the defendant prays that it may please this honorable Court to grant him a new trial on the said second count of the indictment only; the verdict of the jury on the first being definitive. And he prays for all such other and further relief as equity and justice may demand.

      VoorMes, J. This is a motion for a new trial, founded on the reasons alleged by the defendant.
    The first objection urged by him is, that the list of jurors served upon him, under the provisions of the Act of 1809, improperly included the names of the jurors who served on the grand jury by whom the bill of indictment was found, and of jurors who were exempted by law and by the Court. The Act of 1809 provides, th%t a prisoner “ shall have a copy of the indictment and a list of the jufy which are to pass on his trial, delivered unto him at least two entire days before he shall be tried.” B. & 0. p. 248, sec. 39. In support of his position he relies on the case of the State v. Hassell, 3 An. 90, where it was held, that “a list containing other names than those of the jurors who are really to be presented on the trial, necessarily tended to embarrass the accused in his searches for information, and to confuse him in preparing his challenges, and thus defeated the ends of the law. That such a list was not a compliance with either the letter or the spirit of the statute, though it might at the same time contain the names of all the jurors who were to pass on the prisoner’s trial.” It was objected on the part of the prosecution, that if such a construction were given to the statute, a prisoner whose trial was assigned for the commencement of a term, before it could possibly be known how many of the pannel would be in attendance, would decline going to trial if the whole number of jurors contained in the list delivered to him were not in attendance. In answer to this objection, the Court remarked—that a just interpretation of the statute did not lead to such a consequence. That the inconvenience to which the prisoner might be subjected in the event of the failure of jurors to attend, from unforeseen causes, was one to which he was necessarily to submit, while deriving the benefits of the Statute. It was one of those unavoidable evils which no legislative foresight could provide against, but could never be serious, the number of jurors selected at each drawing being limited. The object of the law would be fulfilled if the prisoner were furnished with a list which was correct at the time of its delivery.” The facts on which that decision was given are stated in the opinion of the Court. After his arraignment, the defendant was served with a list of 108 names, headed “list of jurors drawn to serve during the term of June, 1847,” and with a further list of 48 names, headed “List of additional jurors drawn to serve during the term of June, 1847.” These lists comprised the names of all those who were originally drawn to serve as jurors for the term, and of two additional drawings ordered by the Judge, in consequence of the large number who, from various causes, were not in attendance on the Court. On the day of trial, a third list was delivered to the prisoner of thirty-six jurors, whom, he was informed, were to be presented to him, and from whom alone the jury was to be selected. These thirty-six jurors were included in the two lists previously served on the prisoner, and of the several drawings were the only jurors present. The counsel objected to going to trial, &c. Under such circumstances, it is obvious that the objection was well taken, otherwise the defendant would have been deprived of the benefits secured to him under the Act of 1809. The provisions of the Act of 1821, under which the drawings of the jurors in that case were made, were only applicable to the first judicial district. The jurors in this case, comprising forty-eight names to serve as grand and petit jurors, were drawn under the provisions of the Act of 1846, p. 69, nineteen of whom wore set apart to serve as grand jurors. A copy of all their names was served' on the defendant two entire days before his trial. The names of all the jurors, written on ballots, including those set apart as grand jurors, were put into the box, and drawn separately, and when called to the book to be sworn, no objection was made by the defendant, on the ground of the illegality of the list thus served upon him.
    The regü’ar pannel being exhausted, the Court granted an order of tales de circumstantibus, and the number necessary to complete the jury was selected without objection as to the service of the list of the same on the defendant.
    There is no doubt but that the defendant was entitled, under the principles laid down in that decision, to a list containing only the names of those of the jurors who were to be presented on the trial. Without deciding on the informality of the list of jurors served on the defendant, arising from the circumstance of including the names of the grand jurors therein—in other words, a copy of the venire, it may be inquired whether the objection does not come too late, after having accepted the jurors. In the case of the State v. Hernandez, 4 An, 379, King, J., in delivering the opinion of the Court, said: “When the
    accused was brought to the bar, he declared himself ready for trial, and accepted the jurors who were to pass upon the charges preferred against him. This is a waiver of the indictment, if indeed one had not been previously served upon him.” As to this pre-requisite, the statute is as imperative as it is in relation to the service of the copy of the list of jurors who are to be presented on the trial. In the case of Howell, the principle settled was, that the right to claim a copy of the indictment was not forfeited after pleading. But when the accused declares himself ready for trial, and accepts the jurors, does not the objection come too late ? I think so. Under the ruling in the case of Hernandez:, it must he considered a waiver of his right.
    2d. The second ground of objection must also be viewed in the same light.
    3d. In regard to the third, I am not prepared to say that the verdict of the jury is against law and evidence.
    It is, therefore, ordered that the motion for a new trial be overruled.
    MOTION IN ARREST OF JUDGMENT.
    The defendant in the above entitled cause, by his undersigned counsel, begs leave to move in arrest of the judgment to be rendered by this honorable Court on the verdict returned by the jury, on the following grounds, to wit:
    1st. Because having served with a copy of the original venire and of the whole pannel of the jury, in which were included the names of all the jurors who had served upon the grand jury, and also the names of certain jurors who were exempted by law from serving on the jury, said defendant, having prepared his challenges on said list, without being aware of the fact that all said persons, therein named as jurors, were exempted from serving on his trial, has been deprived of the right of exercising his challenges properly, and therefore, has not enjoyed the benefit of a fair and impartial trial as contemplated by law.
    2d. Because this honorable Court having ordered two successive venires to issue, after the original venire had been exhausted, two lists of jurors were returned by the Sheriff instanter and successively. Whereupon the defendant was called on to make his challenges, without being served with any copy of the said lists, as the law directs; by reason of all which he has been embarrassed in making his challenges, and unable to exercise fairly his right of challenging, as contemplated by law.
    3d. Because the bill of indictment found by the grand jury in this case, is signed “ Fred, ffates, District Att’y, pro tern, for the Fourteenth Judicial District of the State of Louisiana; ” which office, to wit: that of District Attorney, pro tem, for the Fourteenth Judicial District of the State of Louisiana, is unknown to the constitution and laws of said State, and is not in any manner therein provided for.
    4th. Because the person who signed the said bill of indictment, and who submitted to the grand jury, as District Attorney pro tem, had no authority to sign the same under the constitution and laws of this State, or to submit the same under the constitution and laws of this State, or to submit the same to the grand jury.

      5th. Because the person who signed the said indictment, as District Attorney pro tern, had been appointed by the Court to act as such in this case; and although said appointment was made by the Court, after it had been shown that the District Attorney now in office and lately appointed by the Governor of the State as District Attorney for the Fourteenth Judicial District of the State of Louisiana, in the place of Alex're JR. Splane, deceased, could not act as such in this cause, because he had been long previous to his appointment, consulted, retained and employed by the defendant as one of his counsel, (all which facts are hereby admitted,) still the defendant contends that this honoiv able Court has not, under the constitution and laws of the State of Louisiana, any authority to make any such appointment, either pro tern or otherwise.
    6th. Because there cannot be but one District Attorney for each Judicial District of this State, under the constitution and laws of said State, to be appointed by the Governor, with the advice and consent of the Senate. Wherefore, the defendant prays that this, his motion in arrest of judgment, be allowed to prevail; that the indictment found in this case be quashed and rejected, and that he be discharged from the same in due course of law. And he prays for all such other and further relief as equity and justice may demand.

      VoorMes, J. This is a motion in arrest of judgment, based on various grounds which are specified by the defendant.
    The first error apparent on the face of the record, of which he complains, is, that the bill of indictment found by the grand jury is signed by Fred. Gates, as District Attorney, pro tem, for the Fourteenth Judicial District of the State of Louisiana, which is an office unknown to the constitution and laws of the State.
    The next ground of objection is a consequence of this : that the person who signed the bill of indictment had no authority to do so, or to submit the same to the grand jury. In order to test the validity of these objections, it is necessary to ascertain in the first place whether the Court was invested with legal authority, under the circumstances of this case, to make the appointment of an attorney to prosecute on behalf of the State pro tempore; and if so, whether the indictment thus signed and submitted to the graud jury vitiated the proceedings.
    The appointment was made under the Act of 1817, which provides, that “ whenever, in any of the Courts of this State, the attorney general, or the prosecuting attorney of the district, shall not attend, the judge shall have power to appoint an attorne}1' to prosecute on behalf of the State, pro tempore." This law must be considered as still in force, unless repugnant to the constitution, which provides that “ all laws in force at the time 'of the adoption of the constitution, and not inconsistent therewith, shall continue'as if the same had not been adopted.”
    In relation to the appointment of District Attorneys, the constitution of 1812, contained substantially the same provision as the new constitution; the only difference between the two is, that the latter has limited the duration of the office to two years. Con. 1812, art. 4, sec. 7. Constitution, articles 74, 90. Under both constitutions the number of District Attorneys was fixed by the Legislature and the appointments made by the Governor. Acts of 1818, p. 399 and Acts of 1846, p. 61. The Act of 1846 also makes it the duty of the District Attorneys to attend the sessions of the Courts in each of the parishes in the Judicial District and to represent the State in all civil and criminal cases.” The Act of 1813 also required them to discharge their duties in person, unless prevented by sickness or physical impossibility.” The Legislature doubtless foreseeing the inconvenience or injury which might result to the public interest in consequence of such absence, enacted the law of 1817. Since the adoption of the new constitution no such provision has been enacted by the Legislature, consequently the Act of 1817 must be considered as still in force.
    And here it may be premised, in answer to the objection urged as to the power of the Court to make appointments to office, that the mere designation or appointment of an attorney to prosecute on behalf of the State pro tempore, in certain specified cases, cannot be fairly construed as an appointment to a public office.
    It is an appointment not to an office but for the performance of a specific duty, which is incumbent on the District Attorney, who is prevented or excused from performing the same. The question then arises, had the Court the power, under the Act of 1817, to appoint an attorney to prosecute in this case ? In the practice in criminal cases in this district after the enactment of that law, the power was never doubted. I am, therefore, of opinion that the law of 1817 embraces this case.
    It is, therefore ordered, adjudged and decreed, that the motion in arrest of judgment be overruled.

      Edwm'd Simon, for appellant:
    The defendant was convicted of manslaughter and sentenced to two years imprisonment at hard labor in the Penitentiary.
    The District Attorney of the Fourteenth District, having been employed by the defendant, previous to his* appointment as District Attorney, considered himself as incapacitated from prosecuting this case; whereupon E. L. Gates was specially appointed by the Court to fulfil the duties of District Attorney in this prosecution. The bill of indictment is signed: “Fr'e Gates, Dist. Att’y pro tem. for the Fourteenth Judicial District of the State of Louisiana.”
    On the trial of this cause, the counsel, representing the State, attempted to introduce in evidence on behalf of the prosecution, a certain document purporting to be an affidavit of the deceased, taken before a magistrate, commencing by the words: “Before me, Edmond Mongé, justice of the peace in ^nd for the parish of St. Martin, the information of Vital Bronsson, of the parish aforesaid, who on his oath complains, &c.” Then giving a statement of the facts as related by the affiant to the magistrate, and ending by the words: “All this against the peace and dignity of the State aforesaid and contrary to the form of the statute in such case made and provided. Wherefore the said complainant prays that the said Alexander Viaux may be apprehended and held to answer this complaint, aiid further dealt with according to law.” This document was rejected by the Court d quo, on the objections made to its admissibility by defendant’s counsel.
    But after it h'ad been rejected, the prosecuting counsel produced a witness to prove the contents of the document, the declaration having been made in his presence, and to prove that the same, having been made when the deceased was in such a state as to be aware that he was going to die, was said deceased’s dying declaration. The testimony was objected to on divers grounds stated in the bill of exceptions, but the judge d quo, after hearing the witness as stated at the close of said bill of exceptions, overruled the defendant’s objections, and permitted the testimony to go to the jury.
    After the verdict, a motion for a new trial was made by defendant’s counsel, upon divers grounds, which motion was overruled by the Court.
    Before the sentence was pronounced, a motion in arrest of judgment was made on behalf of the defendant on several grounds, which motion was also overruled.
    This case then will present throe distinct points, to wit:
    1st. That resulting from the bill of exceptions taken to the opinion of the Court d quo, permitting the contents of deceased’s affidavit to be proven by a witness, and to go to the jury, after the document itself had been rejected.
    2d. The questions of law growing* out of the motion for a new trial, that is to say, out of the two first grounds.
    And 3d. The questions presented by the motion in arrest of judgment.
    I. The judge d quo allowed the State to prove by parol the contents of a written affidavit which had been rejected, because the witness proposed to be examined first said: “ that he was present when deceased gave his declaration to the magistrate, saw the wounds of deceased, and from them he judged he had very little time to live; deceased said before and after giving his declaration, that he would die; and the appearance of deceased indicated that he was conscious of his approaching dissolution.” The evidence was objected to on the grounds: that the declaration from the affidavit already rejected, was not a dying one, and had not been made in contemplation of death ; that the deceased did not make his said declaration to the magistrate with a view of making a dying declaration, but on the contrary, as shown by the document rejected, to cause a warrant to issue to arrest the defendant; that dying declarations, in order to serve as evidence, must be shown to have been made in those cases alone where the death of the party was the subject of inquiry, and not when the object of the declaration is to have the accused arrested, as shown by the affidavit already produced and rejected; and that the original written declaration having been rejected, the State had no right to prove its contents by witnesses, said parol proof being secondary evidence only, left entirely to the memory of man, &c.
    It is clear the affidavit of the deceased was taken for the only purpose of receiving his complaint and of arresting the defendant, who, at the request of the deceased, was to be dealt with according to law. It was a complaint made before a magistrate, assisted by his constable, (the latter is the witness whose testimony was admitted,) and under such circumstances, could it be expected that the deceased would have stated any other facts but those upon which his complaint was to be based? The affidavit was not made in contemplation of death, and it is reasonable not only to presume, but to conclude that the deceased, in lodging his complaint, must have been influenced and actuated at the time by animosity and resentment against the accused, whose punishment he was seeking by causing him first to be arrested and held to answer his complaint. Rosooe, on the subject of Dying Decla/rations, page 33, says: “ Such evidence, (speaking of dying declarations) therefore, is liable to be very incomplete. He (the deceased) may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But it cannot be concealed, animosity and resentment are not unlikely to be felt in such a situation. The power of anger, once excited, may not have been entirely extinguished, even when all hope of life is lost.” Such was undoubtedly the situation of the deceased, and the affidavit taken from him, without any other inquiry but what he pleased to state as the basis of his complaint, and without any cross-examination, shows on its face that he had no other object in view but to apply to the laws of the country for the revengeful punishment of his antagonist.
    I am well aware that the dying declarations of a person who expects to die, respecting the circumstances under which he received a mortal injury, are generally admitted in criminal prosecutions, but the death must be the subject of the criminal inquiry. Wharton, Am. Crim. Law, p. 179. Here, was the death of the complainant the subject of the inquiry? Surely not. The subject, or rather the object of the inquiry was the prosecution of the accused and the means of bringing him to his punishment. Wharton, page 181, says: “ The declarations are only admissible where the death is the subject of the charge, and the circumstances of the death are the subject of the declaration. Thus, in a case where the prisoner was indicted for administering poison to a woman pregnant, but not quick with a child, with intent to procure abortion; the woman was dead, and for the prosecution, evidence of her dying declaration upon the subject was tendered. The learned judge who tried the case, rejected the evidence, observing that, although the declaration might relate to the causes of the death, still such declarations were admissible in those cases alone where the death of the party was the subject of inquiry.” Here again, the circumstances of the death were not the subject of the declaration; the affidavit was merely made to procure the arrest of the defendant; for that purpose, the deceased may have related the causes of his expected death, so far as it was necessary to do in making his complaint, but surely there is nothing in the declaration, or in the manner in which it was made and received, showing that the death of the affiant was the subject of the criminal inquiry.
    One of my objections to the admissibility of the evidence is: that the State had no right to prove by parol the contents of a written declaration which had already been rejected by the Court. Roscoe, p. 33, says, on the authority of the cases therein cited: “Where a dying declaration has been reduced* to writing and signed by the deceased, neither a copy of the paper nor parol evidence of the contents can he received.” The rule is a safe one in favor of the accused, as it would be too dangerous to receive parol evidence of statements made by one person to another who reduced them to writing, inasmuch as the facts disclosed by the secondary evidence, might be inaccurately stated, or may have produced on the mind of the witness an impression entirely different from that which it should have really received. It is true that, in that case, the affidavit of the deceased had been rejected; but it was not the defendant’s fault if the State could not use it; it was very properly rejected by the Court, when offered by the State as a dying declaration; it -was not intended originally as such—it was not taken for that purpose, and it must seem strange that the contents thereof were allowed to be proven b3r parol, after the document itself had been declared to be illegal testimony. See also Wharton, page 182.
    But it will be urged that the parol evidence of the contents of the affidavit, having been preceded by the proof that the deceased was aware of his approaching death, this was sufficient to make the evidence legal; and this seems to bo the foundation of the opinion of the Judge a quo, when he admitted the testimony. This preliminary testimony was also objected to; but what does it prove ? The witness was present when the deceased gave his declaration to the magistrate; he saw the wounds of deceased, and judged that he had very little time to live. This, then, was simply the opinion of the witness, formed from his examination of the wounds; but he adds that the deceased said before and after giving his declaration, that he would die, and that the appearance of deceased indicated that he was conscious of his approaching dissolution.^ In what that appearance consisted, the witness does not say, and it must again be merely the opinion of the witness, from the appearance of the deceased only, ‘ and from what he may have said at the time. Is this sufficient to show that he was really conscious of his approaching death ? Was he fully aware of his situation? He said he would die, but people who say that very often recover". Wharton, loco citato, says : “ The dying party, to make the declaration evidence, must, at the time of making it, have an idea of a future state'.” Now, did the deceased in this case, express any such idea? In Roscoe, page 30, it will be seen that it was held that, “ for the purpose of determining whether the declarations ought to be received, the conduct of the deceased should be considered, to see if it was that of a person convinced that ‘ death was at hand,’ and not merely the expressions he used respecting his condition.” Here, far from having an idea of a future state, and far from abandoning all ideas of this world, the deceased, though he may have said he would die, was actuated, in making his affidavit, by motives of revenge; his object was the prosecution of the defendant, whom he accused of having shot him; and surely no one can conclude from his conduct, not even from his saying that he would die, that his mind was so penetrated'with the idea of a future state that he was conscious of his being in such a situation as to appear soon before his God! A man impressed with this idea would have acted differently.
    II. A new trial was moved for on two principal grounds: 1st, Because the defendant was served with a copy of the whole original pannel of the Jury, including therein a list of Jurors who, having nerved on the Grand Jury, by whom the bill of indictment was found, could not serve as Petit Jurors on the trial of this cause; and also including therein thenames of certain Jurors who were exempted by law and by the Court from serving on the Jury at all during the term. And, 2d, Because the regular pannel of the Jury, having been exhausted, the Court ordered two new lists of Jui’ors to be drawn successively; and said lists having been returned by the Sheriff successively during the trial, the defendant was ruled into the trial of his cause, without having been served with copies of said new lists as the law directs, and was therefore unable to prepare his challenges; and the two grounds may be taken together.
    1st and 2d. The original pannel of the Jury was composed of 48 names, a copy of which was served upon the defendant. Among those 48 names, nineteen had been drawn to constitute the Grand Jury, and two of them, to wit: Gústame Fournet and John G. P[a/rry, were by law exempted from serving on the Jury. It is also admitted that two lists of talismen were successively and immediately drawn in open Court during the trial; that the Sheriff made his returns immediately, and that the Jurors were also immediately called to serve on the trial, without any of the said lists having been served on defendant. It resulted, therefore, that in the list of 48 names served upon defendant, as being the list of the Jury that were to pass on his trial, there were 21 names of Jurors who could not be presented to the prisoner; and I contend that that is not only irregular and illegal, but that it vitiates the proceedings in such a way as to cause the verdict to be annulled. The same consequence must result from the want of service of the new lists.
    The law of1805 (Bull. & Cur., p. 248 No. 35) provides that “the accused shall have a copy of the indictment and a list of the Jury which are to pass on his trial, delivered unto him at least two days before he shall be tried.” This provision of the law is general in its terms, and the list must contain the names of the Jurors by whom he is to be tried. This is a right which belongs to the accused, which he cannot be deprived of, and the right is a very important one, in as much as it gives him a fair opportunity of consulting or reflecting upon .the Jurors who are to decide upon his fate, and of ascertaining the objections he may have to base his challenges upon. From the list served upon the prisoner in this case, how could he know that nearly one-half of the names could not pass on his trial ? How could he ascertain the names of those who were not to pass on his trial ? And how could he obj ect to the list when he had every reason to believe that among the 48 names, the Jury that was to try him w^as to be selected? He had prepared his challenges accordingly; but the names of the Grand Jurors, of course, were not called, and the accused must necessarily be thrown into great confusion and even disappointment, when he sees that Jurors, by whom he may have wished to be tried, are not called to the book, and that they are to be replaced by others called instanter, and taken among the bystanders. This branch of the question the Judge a quo has not touched in his written opinion; it did not strike him that the prisoner, relying upon the correctness of the listserved upon him, had no objection to make, could not be prepared to make any, as he could not know beforehand that one-half of the names given to him would not be called and presented to him. The case of the State v. Howell, 3 Ann., 50, is directly applicable to the question; the court says : “The object of the law in directing a list of the Jurors to be furnished to the accused is, to enable him to inquire into the characters of the judges by whom he is to be tried, and to prepare his challenges. The short time allowed himfor making this preparation is provided with reference to the limited number of the Jury.” And further : “ A list containing other names than those of the Jurors who are really to be presented on the trial, necessarily tends to embarrass the accused in his searches for information, and to confuse him in preparing his challenges, and thus defeats the ends of the law; such a list is not a compliance with either the letter or the spirit of the Statute, although it may at the same time' contain the names of all the Jurors who are to pass on the prisoner’s trial.” This question, it seems to me, is very clear; but the lower Judge, in recognizing that such was the right of the prisoner, and that he was entitled to be served with a correct list of the Jury that was to pass upon his trial, overruled his motion for a now trial, because ho thought the right had been waived by not objecting, and by having, as he says, accepted the Jurors who were presented.
    The decision of the Judge a quo on this last question, carries too far the doctrine of waiver: it is based upon the case of the State v. Hernandez, 4 Ann., 379, in which this Court decided that when a copy of the indictment has not been served on the accused, his being brought to the bar, his declaring himself x’eady fox' trial, and his accepting the Jurors who are to pass upon his trial, will be considered as a waiver of the right. But here there is, and thei'e cannot be any such waiver; the appellant does not complain that ho was not soiwed with a copy of the indictment, but says that the list of Jui-ors served upon him, was incorrect; that one-half of those Jurors could not pass xxponhis trial; that he could not know the fact of incorrectness when he was brought to the bar; that he thought the list was correct and had prepared his challenges accordingly; that when the Jury was "formed ho was induced to believe that the persons whose names were in the list without their being called, were absent; that he only ascertaiixed the fact and the cause of their not being called, after it was too late; that he was deprived of his rights without knowing at the time of the trial that the list was incori’ect; that he could not then make the objection; that the new lists of Jurors were made during the trial, without his having been served with copies thereof; and the Jurors were called to serve instanter ; and that he cannot be considered as having waived a right which he had at the time no reason to believe had not been extended to him, as ho was not then aware that nearly one-half of the Jurors named in the list were incompetent to pass on his trial, nor could he know the fact when the names of the Jurors who were to try his case, were called. On comparing the list of Grand Jurors with the names of the Petit Jurors, who tried this cause, the Court will see that .none of the Grand Jurors were sworn to try this case; and why ? Because they were not called to the book,' being then yet on the Grand Jury; they were not called, for the officers of the Court knew that they could not serve on the Petit Jury; and yet, their names were on the list served upon the accused, as

      Jurors who were to pass upon his 1/rial. In the case of Howell, 3 Ann., 50, it was held that a prisoner does not waive his right, under Sec. 86 of it: 4 May, 1805, to have delivered to him a list of Jurors two days before his trial, by pleading without claiming it. The case of Howell is in all respects applicable to the present one, and not the case of Hernandez, where the question tried and decided was with regard only to the want of service of a copy of the indictment. Here, again, the list of Jurors was served, but it was incorrect, and the incorrectness was such as the accused could not discover at the time of the trial. The absolute want of service of the other lists, is also a fatal defect in the proceedings of this case; the accused was deprived of this important right, and his pleading and going to trial without claiming it, is not a waiver of it.
    III. On the motion in arrest of judgment: This motion is based on the same grounds at those already disposed of; and upon four other grounds relating to the appointment by the Court of a counsel to represent the State in lieu of the District Attorney, and to the manner in which' said counsel signed the bill of indictment, to wit: as District Attorneg pro tem. for the fourteenth Judicial Distl’ict of the State of Louisiana.

    The questions arising from the appointment of a counsel to represent the State, have been fully argued by my associate counsel in his brief, and I shall not add anything in that respect to his argument. But I contend that the counsel who was acting in this case, by special appointment from the Court, had no right or authority to sign the bill of indictment as District Attorney pro tem. for the fourteenth Judicial District of the State of Louisiana, and that his signature as such is a fatal defect, which, of itself, is sufficient to quash the indictment. It is a well-known rule in criminal law, that the indictment must be signed by the prosecutingattorney, and that he must endorse the capacity in which he signed the bill which he presents to the Grand Jury. Here, the prosecuting Attorney calls himself, or rather styles himself, as occupying an office unknown to the Constitution and laws of the State; there is no such office as District Attorney pro tem. for any of the Judicial Districts of the State of Louisiana; and although he was acting as District Attorney under the special appointment of the Court, his signature at the foot of the bill in any other capacity, cannot have any more effect than if the bill had been signed by any stranger assuming the quality of District Attorney pro tem. This objection, if available, will have the effect of quashing the indictment, and thus will put an end to the case.
    Before closing, I shall call the attention of the Court to the rule established by recent decisions, to wit: that when a prisoner has been indicted for murder, and the Jury found him guilty of manslaughter, upon a new trial granted, he cannot be tried again for the crime of murder. 5 Ann., 398 and 489. So, if a new trial is granted in this case, the appellant shall only be tried for manslaughter.

      Han'dy & Gates, for the State.
    When a document purporting to be a dying declaration, has been rejected, as being an affidavit, parol testimony to establish what were the dying declarations of the deceased, is not a violation of the rule of evidence prohibiting parol testimony to establish the contents of a written document.
    “ The dying declaration of a person who expects to die, respecting the circumstances under which he received a' mortal injury, are eonstantly admitted in criminal prosecutions, when the death is the subject of inquiry.” (Wharton, p. 179. 2 Starkie’s Evid., p. 261.)
    “ It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them in evidence, that they were made under a sense of impending death." (Greenleaf’s Evid., vol. 1st., p. 158. 2 Starkie’s Evid., pp. 261 and 262.)
    It is contended, that there was no error on the part of the Judge below, in admitting the testimony of G. Biewoenu to prove what the dying declarations of the deceased were. That the testimony established: That there was that sense of “impending death” necessary to make the declarations of the deceased admissible.
    It is contended that the “motion for new trial” was not improperly overruled by the Court below. That the objections of the defendant came too late after verdict, and are not good grounds for a motion for new trial. (Yide Acts of 1846, p. 65. State v. Hernandez, 4 La. R. 379.)
    It is contended, that the “motion in arrest of judgment” was not improperly overruled. That under the Act of 1817 the Court had the power to appoint a District Attorney pro tempore. That when the regularly appointed District Attorney recused himself, he was, as to the case at bar, by law presumed absent. That the Act of 1817, being in force under the Constitution of 1812, and the Constitution of 1845 not clashing with that of 1812, containing no clause relative to the appointment of District Attorney contrary to or repealing that of 1812—the law of 1817 was in force under the Constitution of 1845. That the District Attorney pro tempore was the proper officer to draw up, sign and present the bill of indictment to the Grand Jury.
   Dunbae, J.

The defendant was indicted for the murder of Vestal Broussen, found guilty by the Jury of manslaughter, and has been condemned by the District Judge to be imprisoned in the Penitentiary or State Prison at hard labor for the term of two years. On the trial, the District Attorney offered in evidence as a dying declaration, an affidavit of the deceased, in writing, made and signed by him before a magistrate, for the arrest of the defendant. The counsel for the defence objected to the affidavit as inadmissible, and it was rejected by the Court. Afterwards the State, offered the testimony of G. Biemenu, who proved “that he was present when deceased gave his declaration to the magistrate, Mongó; saw the wounds of deceased, and from them he judged he had very little time to live; deceased said before and after giving his declarations that he would die, ‘qu’il allait mourir.’ The appearance of deceased indicated that he was conscious of his approaching dissolution.” Upon this foundation, the District Judge permitted the declarations of the deceased to be given in evidence. To which opinion of the Court admitting the said testimony the defendant took his bill of exceptions. We think the Judge did not err. After the defendant had himself objected to those declarations reduced to writing, in the form of an affidavit, for his arrest, he could not with any propriety turn round and object to evidence being given by parol, as related above, of what the deceased did declare before the magistrate. Depositions of the deceased taken in writing by a magistrate, in the Hospital where he lay, but not in the presence of the prisoner, were offered in evidence, it being objected that those depositions could not be read, as not having been taken pursuant to the Statute, 10 Car. c. 1. (Irish.) Downs, J., ordered the magistrate to be sworn, and he having deposed that the deceased at the time of making those depositions, was impressed with the fear of immediate death, his parol testimony of the facts declared by the deceased was admitted. Roscoe’s Criminal Evidence, p. 33. McNally, 385. The magistrate, perhaps, should have been examined in preference to the witness who was a mere looker-on at the taking of the affidavit of the deceased, but this objection was not made in the Court below.

The defendant then moved for a new trial, and an arrest of judgment, upon the following grounds: Eirst, that the Court had no right to appoint under the circumstances of this case a District Attorney pro tern, to prosecute for the State. The reasons given in the opinion of the District Judge on this point are to our minds perfectly satisfactory, and we think'the 'appointment was well made. Second, that there had been irregularities in summoning the Jury, in the service on him of the list of Jurors, &c., and that the verdict of the Jury was contrary to law and evidence. These alleged defects are all specially set forth in the pleadings aforesaid, and passed upon in the judgment of the District Court. We refer to them merely without copying them in this decision, because they have been all considered and well answered in the opinion of the District Judge, whose reasons for overruling the said motions we adopt as our own.

The judgment of this District Court is therefore affirmed with costs.


source: Caselaw Access Project

author: Slidell, C. J.

license: Public Domain

text:
    Glendy Burke v. His Creditors, and the Creditors of Glendy Burke & Co.
    A purchaser can not be compelled to complete the sale in conformity with the proces verbal of the auctioneer, when the proces verbal varies both from the advertisement and the order of sale.
    APPEAL from the Pifth District Court of New Orleans, Buchcmcm, 3.—

      Walker & DeFranee, for the Syndic:
    But the appellant contends that we are bound solely and entirely by the advertisement. That all evidence as regards the acts, the explanations sought and given, and declarations made by the auctioneer at the time of sale, cannot enter into the contract, nor be considered by the Court, nor proof be offered regarding them.
    The appellant seems to consider the advertisements of auctioneers as contracts of the most solemn nature; as unalterable as the laws of the Medes and the Persians; as irrevocable as the decrees of fate; a species of Procrustean bed into which all lengths, all breadths, all sizes must be made to lit.
    This extraordinary position is attempted to he sustained by several decisions of our Court, some of which are herein referred to, and all perhaps, decisions proper and just under their peculiar circumstances. One fact is, however, true with regard to them all; a fact which conclusively answers the exceptions taken by appellant’s counsel, to the admission of any testimony with regard to the facts which transpired at the time of sale. That fact is this, that in every case, the circumstances attendant on the several transactions, are minutely shown and and attentively considered by the Court, and in one, the most recent of them, Poree v. Bonneval, 6th A., 387; the wisdom of such a course is properly commended. In the 10thL. R., are two cases, Ffott & Go. v. Oakey, page 18. After examining the facts of the case, the purchaser was released from the penalty of a salo a la folie enchere because conditions more onerous were imposed by the auctioneer, and conditions at variance with those in hand-bills distributed through the crowd. “ The purchase may have been made, say the Court, under an error created by the plaintiffs themselves.” It will be found that the only principle enunciated in this and in all analogous decisions is this rule as old as law itself: that when error is created in the mind of the purchaser by the act of the vendor, the purchaser is not bound and should not suffer.
    The difference between these cases and the present is, that the defendants do not claim the benefit of any alleged error on the part of the vendor, but claim to substitute a contract of their own in place of one incurred.
    <7. Boseliue appeared for the Syndic and Auctioneers.

      Lem Pierce for defendant and appellant.
    As to the merits of the case, the Tutor, defendant, submits that
    All sales of property ceded to creditors must be made on the same terms and under the same formalities that property seized on execution is sold. Art. 2180 Civil Code.
    When there exists a mortgage or privilege on the property put up for sale, the Sheriff shall give notice before he commences, that the property is sold subject to all privileges and hypothecations of whatsoever kind they may be, with which the same is burthened, and with the condition that the purchaser shall pay in his hands whatever portion of the price for which the property shall be adjudicated, may exceed the amount of the privileges and special mortgages to which such property is subject. Code of Practice, Art. 679. Vide also 688.
    Art. 689. When a seizing creditor has a privilege or special mortgage on the property seized, for a debt of which all the instalments are not yet due, he may demand that the property bo sold for the whole of the debt, provided it be on such terms of credit as are granted to the debtor by the original contract for the payment of such instalments as are not due. Vide Louche v. Union Bank, 2d An., p. 618.
    Act of 1817, p. 134, Sec. 16. The privileged or mortgaged creditors of the insolvent debtor shall not be bound by the decisions of the majority of the other members, either in amount or persons, if the said creditors want to sell the property on credit, and the privileged or mortgaged creditors shall always have the right to require that the sale of so much property only on which their respective privileges, or mortgages rest, be made for cash as will be sufficient to make the amount due to them, together with interest and costs.
    La. Rep., Vol. 7. The mere legal agent appointed to sell property by authority of law, has no powers but those conferred by law'. Page 421,. (as a Syndic.)
    La. Rep. Vol. 19, p. 18. Where the terms of an auction sale are changed, or new conditions imposed from those advertised, by proclaiming them at the stand, at the commencement of the sale, the purchaser is not bound by them. Nott & Go. v. Oakey.

    2d Annual, p. 2. The advertisements are binding upon both purchaser and vendor, and neither party can insist on any thing that w'as said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions or the description of the object offered. Layton v. Hennen. Babington on Auction Law, Lib. 18. Vide 6 Annual, 386, to the same effect.'
    The case is now stated to the Court, and the authorities on w'hich the defendant relies.
   Slidell, C. J.

This case arises on a rule taken against the tutor of Wm. B. Burhe to enforce his compliance with an adjudication at auction of certain real estate.

We are of opinion that the defendant cannot be compelled to complete the sale in conformity with the procs verbal of the auctioneer, w'hich is made the basis of the rule, because it varies both from the advertisement and the orders of sale.

It is said that the change w'hich constitutes this variance was announced by the auctioneer at the stand, and that Burhe understood it. Without deciding the question whether parol evidence was admissible to show what declarations W'cre made at the sale by the auctioneer, and what conversations took place, we think it sufficient to say that the testimony of the auctioneer as to w'hat he observed to the audience is at variance with his proces verbal, and both are at variance with the advertisement; and the conclusion is forced upon our mind, that the matter was not understood either by the auctioneer himself or the audience, in consequence of the obscurity of the advertisement.

The only mode of doing justice to all parties, the creditors and the purchasers, is to set aside the adjudication as irregularly made.

There is a circumstance connected with the mortgage debt which seems to have been overlooked in the application for the order of sale, in the order, and in the advertisement; and that is, that two interest notes were due, and had become under the contract a cash capital bearing eight per cent, interest. Whether this stipulation as to compound interest was or was not unlawful, we express no opinion. But at all events, two interest notes were due before the sale, so that whatever equity there might be in treating the use of the property by the purchaser after his purchase, as an equivalent for the unmatured interest notes, there certainly was none in asking him to pay interest which had matured before the sale without giving him credit for it on the amount of his bid. We would also add that the property was mortgaged to the State for forty-three interest notes of $155 35 each, and the proces verbal speaks of forty-two of that denomination to be assumed, without specifying which they are.

We recommend the granting of a new order of sale by the Court below, providing specifically for the terms of the sale in this complicated matter, so that the advertisements may inform bidders clearly what will be their liability.

It is therefore ordered that the judgment of the District Court be reversed, and that this adjudication to G. BurTce, tutor, be annulled, the costs of the rule in both cases to be paid by the insolvent estate.


text:
    In the matter of Burke v. His Creditors.
   Slidell, C. J.

Eor the reason assigned in case under same title, No. 3243 of the docket of this Court, a similar judgment is rendered in this case.

It is therefore ordered that the judgment of the District Court be reversed, and the adjudication to G. BurTce, tutor, be annulled — the ccsts of the rule in both Courts to be paid by the insolvent estate.


author: Voorhies, J.

text:
    John Hagenberger v. John Wild.
    "Where the claim for damages is fictitious, and made for the purpose of giving the Supreme Court jurisdiction, the appeal will be dismissed.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Schmidt, for plaintiff and appellant. Collins, for defendant.
   Voorhies, J.

In this case, the plaintiff sought the nullity of a judgment rendered against him in favor of the defendant, for the sum of $170 10, on the ground that it had been obtained through fraud; and,.moreover, prayed for $350 damages for the illegal proceedings thereon, and for an injunction, which was granted.

The District Court gave judgment in favor of the defendant, dismissing the plaintiff’s demand on the injunction, and the latter appealed.

The dismissal of the appeal is prayed for on several grounds. But it is necessary to notice only one of them, which we deem sufficient — that to the jurisdiction of this Court. The matter in dispute as to the nullity of the judgment, does not exceed the sum of $300. It is 'clear that this Court would not have jurisdiction of that alone. Prom the nature of the matter in litigation, and the absence of any allegation or proof of specific damages, we are satisfied that the claim for damages is fictitious, and made for the purpose of giving jurisdiction to this Court. It has been repeatedly held, that such a claim cannot give jurisdiction to this Court. In the case of the R. R. Company v. Williams, 16 L. R. 182, Judge Morphy, as the organ of the Court, remarked: “We readily avail ourselves of this opportunity, which has appeared to us a fit one for the purpose of declaring that we are by no means disposed to suffer fictitious and imaginary claims to bo tacked on a real one, for the sole purpose of bringing up suits before this Court, in violation of the Constitution, and in derogation to the respect due to the Courts of justice.” See also the case in 17th L. R. 104.

It is therefore ordered, adjudged and decreed that the appeal be dismissed at the appellant’s costs.


author: Slidell, 0. J. Buchanan, J., Ogden, J.,

text:
    F. Seignouret & Co. v. C. Gardanne and Wife.
    The wife is not personally bound for the price of furniture sold to her husband, although she, as a member of his family, may have had the use of it.
    The vendor can not exercise his privilege on goods sold to the husband, after they have been purchased by the wife under a seizure and sale against the husband to satisfy her dowry. O. 0. S184,„No. 7., 3194.
    Where the wife’s judgment against her husband has been ratified by a dation m paiemmt, the settlement cannot afterwards be set aside by them, and the judgment revived to the prejudice of the claims of the husband’s creditors. Bueha/tiMi, X, dissenting.
    Considering the relation between husband and wife, and that their possession is a joint one of all the objects belonging to the community, no adverse title, during the marriage, can ever be set up in the wife to defeat the vendor’s privilege on an object purchased by the community and unpaid for. Ogd&íiy J., dissenting.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Ml-lieul, for plaintiffs. Miles Taylor and H. H. Taylor, for defendants and appellants.
   Slidell, 0. J.

This suit is brought upon two notes, dated in August 1851, made by G. Gardanne to the order of the plaintiff, and payable one year after date. The prayer is for a judgment against the husband and wife in solido.. The ground upon which the petition asks judgment against the wife is, that the notes were given in payment of certain articles of household furniture sold to the husband and used in his house by his wife and family, who are bene-fitted by their use, and that although Mrs. Gardanne did not sign the notes, she is bound to contribute to the expenses of her household, and share the debts of her husband contracted for such purpose. The petition also asked judgment recognizing the vendor’s privilege upon the furniture, of which a list was annexed. There was judgment according to the prayer of the petition, and Mrs. Gardanne has appealed.

The following fact appeared at the trial: the notes arc in renewal of notes for a larger sum given in the name of the husband in 1848, for furniture purchased of the plaintiffs in 1846 and 1847. A witness in the employ of plaintiffs says, the goods were sold to the defendants; that both defendants came into the shop and bought the goods mentioned in the bill, Mrs. Gardanne examining and selecting the furniture. It appears, however, by a written admission made at the trial, as well as by the petition, that the goods were sold to Mr. Gar-danne, and that the original, as well as the renewal notes, were given in his name. The furniture has always been used in the family, and is now in the possession of Mrs. Gardanne. At the time of the purchase, a community of goods existed between the husband and wife, which was dissolved by judgment in 1851. By the same decree, she had judgment against her husband for $50,000, the amount of her dowry. Upon fieri facias, she seized the furniture and bought it at sheriff’s sale, crediting the price upon her claim.

We think the wife is not personally bound for the price of the furniture, because it was sold to the husband; the credit was given to him, and to the community which then existed, and of which he was the head and master. It was moreover the sale of a thing which the husband was bound to furnish, and he had at the time the enjoyment of the income of her dower. O. O. 2329, 2371, 2372.

With regard to the vendor’s privilege, we think the plaintiffs lost it by not exercising it before the wife’s seizure and sale. 0. O. 3184, No. 7, 3194.

It is therefore decreed, that the judgment condeming the wife and granting a vendor’s privilege, be reversed, and that there be judgment in favor of the defendant, Mrs. Gardanne \ the costs of the suit against her in both courts, to be paid by the plaintiffs.

Campbell, J., and VoorMes, J., concurring.

Buchanan, J.,

dissenting. I am of opinion that the privilege of the vendor has not been lost, in this case, for the reasons given in the dissenting opinion of Mr. Justice Ogden, and for the further reason, that it is shown by the record that Mrs. Gardanne obtained a judgment of separation of property, and for a large amount of dotal and paraphernal rights against her husband, which judgment was satisfied by a dation en paiement. This dation en paiement was after-wards set aside, by consent of parties, and execution issued upon the judgment, under which execution the movables, sold by plaintiffs to the husband, were seized by the sheriff, and purchased at sheriff’s sale by Mrs. Ga/rdanne. It is my opinion, that the satisfaction of Mrs. Gtmlanne’s judgment fixed her rights as regarded the creditors of her husband, and that the husband and wife could not legally, thereafter, place these creditors in duriori easu by subsequent conventions, reviving the judgment of the wife when once extinguished.

Ogden, J.,

dissenting. The plaintiff was not, according to my view of the law, deprived of his vendor’s privilege, by the sale of the furniture to the wife. The purchase of the furniture by defendant, was made for the benefit of the community; the price constituted a debt due by the community, and although the wife might exonerate herself from liability for the debt, by renouncing the community, I think she cannot be permitted, at the same time, to retain the furniture bought by her husband for their joint benefit, without paying for it, although she has an unsatisfied claim against her husband for her dotal or paraphernal rights. To permit one creditor to be paid out of the proceeds of the sale of an object, the price of which is yet due to another creditor, is jR itself a violation of the principle of natural justice, that no one should be permitted to enrich himself at another’s expense. To prevent it, the law has accorded a privilege ,to the vendor as long as the property remains in the possession of the vendee. I do not think this privilege can be defeated, in the case of purchase of movables by the husband during the community, by his transfer of the property to the wife in payment of her dotal right. The actual possession continues as before in both of them, and their liability for the debt is the same. Nothing but the title has changed, and their acts in that respect ought not to be permitted to destroy the fair and just claim of the vendor to be paid for his property. The transfer having been effected by the form of a judicial sale, does not render it different from a elation en paiement, which the parties might have resorted to, if they had chosen. Considering the relation between husband and wife, and that their possession is a joint one of all the objects belonging to the community, I consider that no adverse title, during the marriage, can ever be set up in the wife to defeat the vendor’s privilege on an object purchased by the community and unpaid for. There should be judgment, in my opinion, against the husband, with privilege on the furniture sold.


author: Campbell, J.

text:
    John Alexander v. Seccomb, Brooke & Adams.
    The plea in compensation is in the nature of a demand, and should set forth as explicitly the manner in which the party, who claims-the benefit, acquired his right, with every circumstance of time, place, &c., as if the matters offered in compensation, were the subject of a direct action.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      J. B. Britton, for plaintiff and appellant.
   Campbell, J.

This suit was brought by John Alexander against the late firm of Seccomb, Broolce & Adams, on their promissory note for fifteen hundred dollars, dated January 1st, 1818, payable to the order of W. Martin & Go. and by them endorsed, without recourse.

Seccomb only was cited, and answered for himself alone. Admitting the signature of the note, he avers that it was originally given to W. Martin & Go., the payees and endorsers; that at its maturity, and while it was still in the hands of payees and owned by them, the respondent, as liquidating partner of the firm of Seccomb, Broolce & Adams, held and owned a check drawn by TP". Martin & Go. in New York, for one thousand dollars, and protested for non-payment; that compensation took place for so much of the note sued on as said draft amounted to; that subsequently, respondent was induced to believe, by the representations of W. Man-tin & Go., that they had transferred said note to the Canal Bank, and, acting under their fraudulent representations, he, in error, accepted a dividend of thirty per cent, on the draft drawn by Martin & Go. As a further defence, • respondent avers that, about the 2d of February, 1850, he made a full settlement with the Canal Bank of all claims held by them against the firm of Seccomb, Broolce & Adams: that the note sued on was then in the possession of the bank, was embraced in the settlement and thereby extinguished.

Judgment was rendered in favor of the plaintiff for $827 54, being the amount claimed, less the demand of defendants in compensation, which was allowed. From this judgment, after an ineffectual attempt to obtain a new trial, plaintiff has appealed.

Our attention has been directed to a hill of exceptions to the opinion of the judge, overruling the objections of plaintiff to the testimony of M. Lindo, a witness called to testify in relation to a draft drawn by Warrick Mcvrtin & Go. The testimony of this witness was objected to On the grounds, that the dates and the names of the parties to the assignment offered in compensation, were not set forth in the answer; that the answer was too vague and uncertain; and that testimony could not be introduced in relation to a draft, when a check was declared upon.

We think the court erred. It has been repeatedly held that a plea in compensation, being in the nature of a demand, should be accompanied with a specification of the particular amount expected to be compensated, of the manner in which the party who claims the benefit, acquired his right, with every circumstance of time, place, &c., which ought to be given in other demands, as fully and explicitly as if the matters offered in compensation were the subject of a direct action; otherwise, no ’ evidence will be admissible under it. The plea filed by defendant is deficient in most of these essentials. The name of the drawer is given, and the amount; but we have no specification of the time when drawn or payable, or the name of the drawer or payee, nor of notice of protest to the drawers; or an averment that notice of non-payment was given to the drawer.

The plea, we think, was two vague and uncertain, and the defendant should not have been permitted to offer evidence under it. See O. P. 3C7. McMasters v. Palmer, 4 A. 381. White v. Moreno, 17 La. 372. Smith v. Scott, 3 R. 258. Wilcox v. His Creditors, 11 R. 347. Beall v. Allen, 2 An. 932.

We are further of opinion, that the court erred in overruling the objection of plaintiff to the introduction on the part of defendants, of the insolvent proceedings in the matter of Brooke v. His Creditors, to prove that Brooke had been discharged from the payment of the note sued on. The answer contains no such allegation. Conceding next the discharge was granted, non constat, that the defendant did not assent thereto. A party cannot be thus surprised by the proof of what is not alleged, or of which no notice has been given.

Respondent has failed to establish his plea, that the note sued on was extinguished by settlement made with the Canal Bank. Indeed, it is conclusively proved that the note was not included in the settlement with Voorhies.

The conclusion to which wo have arrived, renders it unnecessary to examine the bills of exception taken by defendant. The signature to the note sued on is admitted, and the defences set up have failed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed. And it is further ordered, adjudged and decreed, that plaintiff, John Alexander, do recover from the defendant, E. Seccomb, a member of the late firm of Seccomb, Brooke & Adams, the sum of fifteen hundred dollars, with interest thereon from January 1st, 1848, and costs in both courts. And it is further adjudged and decreed, that the demand in compensation be dismissed without prejudice.


text:
    Bank of Augusta v. Samuel Jaudon, Jr.
    Irregularities in the proceedings in attachment, anterior to judgment, except an entire want of citation, must be corrected by some direct proceeding before the court in which the attachment issued, or by appeal: they cannot be drawn into question collaterally.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Thomas Munton, and Mdise & W. M. Rwndol/ph, for plaintiff. E. L. Goold, for defendant. Lamb and George Eustis, Jr., for Sturtevant & Go., one of the attaching creditors and appellant.
   Slidell, C. J.

The Bank of Augusta and L. Stnvrtevmt were both attaching creditors of defendants, and the present controversy arises on a.rule.taken by the Bank of Augusta on Sturtevant. & Go., to show cause why the bank should not be paid by preference out of the property attached.

The defendants in rule allege, that they should have the preference, on two grounds: First, because, they say, the attachment in their case was served before that of the Bank of Augusta; and, secondly, because the agent who made the affidavit and signed the attachment bond in the bank’s case, had no authority to do so.

The first ground involves merely a question of fact, which was decided by the district judge in favor of the plaintiff. An examination of the evidence has not satisfied us that his conclusion was erroneous.

As to the second ground, there is no evidence to establish or impeach the authority of the agent, and the plaintiff relies upon the ruling in Gibson v. Foster, 2 An. 507, where it was held that in cases of attachment, irregularities in the proceedings anterior to the judgment, except an entire want of citation, are to be corrected by some direct proceeding before the same court to set them aside, or by appeal; and that their validity cannot be drawn into question collaterally. We think that authority conclusive in the present case; and that the plaintiff could rest on his judgment maintaining the attachment, and was not required to prove the agency.

Judgment affirmed, with costs.


author: Ogden, J.

text:
    Fearn, Donegan & Co. v. L. Maltby & Co.
    Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator. 0. 0. 2448. But where the buyer’s agent places the thing purchased in an exposed condition and it is damaged, the purchaser cannot recover.
    APPEL from the Fourth District Court of New Orleans, Reynolds, J.

      Mott and Frayser, for plaintiffs. Mamner and Mays, for defendants and appellants.
   Ogden, J.

The defendants purchased from the plaintiffs a crop of sugar, to be delivered at the plantation of Dr. Webb, the owner, on the Bayou Lafourche. They sent their clerk to the plantation to have the sugar weighed, and instructed him not to have more of the sugar taken out of the warehouse than could be covered, as they did not wish it to get wot, and were uncertain when a boat could be sent for it. The sugar was weighed; a receipt given for it; and the whole lot was hauled from the sugar-house to the side of the bayou, where part of it was stored in a warehouse, and there not being room enough for all, a portion was left on the river bank, where it was injured by exposure to the rain; and the question is, upon whom the loss should fall. The seller was bound to guard the sugar as a faithful administrator until its delivery (Art. 2443 of the Civil Code); and it would have been his duty to keep the sugar housed until the delivery to the steamboat, if the defendant’s agent had not undertaken himself to have it removed to the river bank. To excuse himself for the violation of his principal’s instructions, and justify his leaving the sugar in that condition, the agent says that Dr. Webb told him he did not believe there was any danger of rains, and that he wanted to get the sugar out of the sugar-house, and would protect it from the weather if necessary. On the other hand, Dr. Webb's overseer testifies that it was proposed to the defendant’s agent to have all the sugar that could not be stored at the river bank, either left in the sugar-house or hauled to a work-shop near, but that the agent preferred having it placed on the levee to be ready for the boat. The boat did not call for it for four or five days, and there being much rain in the mean time, the sugar was necessarily exposed to the loss and damage suffered. It having been placed in this exposed condition by the act of the agent of defendants, to whom it belonged and upon whom it depended how long it should remain there, the injury must be considered as arising from the want of due care and precaution on the part of their agent, who, without sufficient reason, departed from his instructions. We are not satisfied from the evidence, that there was any such gross neglect on the part of the vendor as to render him liable for the loss; he may have supposed there would be no rain, and advised that it would be safe to leave the sugar oh the bank, but did not take the risk on himself. In the conflict of testimony, it is uncertain what advice may have been given by the seller to defendant’s agent, but it is certain that the defendant’s agent was not required or forced to take the sugar from the sugar-house until a boat could be sent for it, and that his voluntarily doing so, gave rise to the loss. We cannot, therefore, consider the damage to the sugar imputable to want of care of the vendor.

Judgment of the court below is therefore affirmed, with costs.


text:
    Eulalie and her Children v. Long & Mabry.
    A slave may acquire a prescriptive title to his liberty under Article 8510 of the Civil Code. An exception that petition shows no ground of action, admits the truth of all the allegations of the petition; but if the exception be overruled, the defendant will have leave to answer over.
    PPEAL from the First District Court of New Orleans, Lm'ue, J.

      W. Beatty and 8. L. Johnson, for plaintiffs and appellants. B. U. Ma/rr, for defendants.
   Ogden, J.

The’ petitioner sets forth that she is a free negro woman, over sixty-five years of age, and the mother of some and grandmother of others of the plaintiffs named in the petition, sixteen in number, who all join in the Proseoution of this suit; that for the last forty-five years she has been in the er,j°ymont ^el’ freedom, in the Parish of Pointe Ooupée, as also her said children and grandchildren, until about the close of the year 1852, when they were forcibly taken from their homes in said parish, at night, by certain armed persons to them unknown, and transferred to the custody of the defendants, who retain them, thus deprived of their liberty, averring that they are slaves and belong to them as such.

The defendants rely on an exception, that the matters and things alleged and stated in the manner and form as they are set forth in the petition, exhibit no cause of .action against them, and no right on the part of the plaintiffs to be free, or to be declared free.

On those pleadings, a judgment has been rendered by the court below, sus" taining the exceptions and dismissing the petition of the plaintiffs; from which judgment the present appeal is taken.

The exception taken, admits the truth of all the allegations in the petition, and its legal effect is not weakened or impaired in any manner by the protestation contained in the plea, that the defendants are ignorant and innocent of any act of violence towards the plaintiffs. The question then presented is, whether a woman who was once a slave, but for forty-five years has, with her children and grandchildren, lived in the peaceable and quiet enjoyment of liberty, can, by violence and force, be reduced to the condition of slavery, without the right of questioning the title of one who assumes to be the owner. The affirmation of this proposition, go repugnant to the natural dictates of reason and humanity, is supposed to be the consequence of the peculiar legislation of the State, proscribing certain rules for the emancipation of slaves ; and it has been argued that a slave cannot, by our laws, acquire a prescriptive title to his liberty, notwithstanding Article 8510 of the Civil Code, which declares, “ if a master suffer a slave to enjoy his liberty for ten years, during his residence in the State, or for twenty years while out of it, he shall lose all right of action to recover the possession of the slave, unless the slave be a runaway or fugitive.” This provision of the Code, we are told by counsel, is merely idle, without meaning or applicability, and can in no way affect the right of the master to reduce his slave into actual possession at any time. We would not feel ourselves at liberty, under any circumstance, to disregard such a clear expression of the legislative will as is contained in that article, and we see nothing in the relation subsisting between master and slave, or in the laws which undertake to regulate the status of the slave in reference to his rights and privileges as a freeman, incompatible with the prescriptive title to freedom which he may acquire under that law.

The law recognizes this as one of the modes in which a slave may acquire his right to freedom, for if the master is denied a right of action to recover possession, after suffering his slave to enjoy his liberty for a certain length of time, there is no principle on which a resort to violence, in order to reduce him again to slaveiy, could be justified or tolerated by any one. The State is interested in disposing of such persons after they have acquired their right to freedom, and, by several laws, the right of the slave to his liberty, even when ho has gained the consent of his owner, has been qualified with a view to the interests of society at large; but, although ever since the formation of the government, the power of emancipating his slaves, either by act inter vivos or by testament, has been conferred by law on the master, there 'has never been any statute passed, declaring that the slave shall forfeit the right to his freedom so acquired, and revert to his former owner, until the Act of one thousand eight hundred and fifty-two, which prescribes a mode for perfecting the emancipation of slaves, where it has remained incomplete by reason of the failure to comply with all the requisites of law. This statute makes it the duty of the judge of the district to appoint an agent to hire out such slaves until they have earned a sufficient sum to defray the expense of their removal to Liberia, and provides that, in case any slave or slaves, after having been so emancipated, should not be sent to Liberia within one year after being liberated, or should return again after being sent, said slaves shall forfeit their freedom and become slaves, and revert to their former owners. The State has an absolute control by its legislation over that class of persons, and when the right of the owner to the slave as his property has ceased by virtue of the emancipation, it is for the State, and not for individuals, to regulate the disposition which shall be made of them.

From the argument and authorities adduced by defendants’ counsel, we have concluded the defendants have a right to answer over on their exception being overruled.

It is therefore ordered, adjudged and decreed, that the judgment of the court be reversed and annulled; that the exception filed by defendants be overruled,- and the cause remanded to the court below to be proceeded in according to law; the defendants to pay the costs of this appeal.


text:
    Mrs. Mills, Wife of J. P. McMillen, v. Thomas Jones.
    Suit was brought on a lost note — there was judgment for the plaintiff, but previous to issuing execution, he was required to give security to defendant against loss in consequence of the reappearance of the note. The bond furnished was received by the judge, who refused to set it aside. Held : That defendant could not resort to an injunction on the ground of the insufficiency of the bond. "Where the judgment bears the highest rate of conventional interest, no additional interest will be allowed on the dissolution of the injunction.
    APPEAL from the Third Judicial District, Olw'lee, J.

      T. 8. MaOcty, for plaintiff in injunction and appellant. Pu/rvis & Dugui, for defendant in injunction.
   Ogden, J.

There was no sufficient grounds for the injunction obtained by the defendant, to restrain the plaintiff’s execution. The terms of the judgment requiring the plaintiff to give security to the defendant to indemnity him against any loss he might suffer from the reappearance of the lost notes, were complied with by the plaintiff previous to issuing the execution. .The bond furnished was received by the judge, and after the defendant had made an ineffectual attempt to set it aside by rule, ho had no right to resort to an injunction on the ground of the insufficiency of the bond.

The plaintiff has asked for an amendment of the judgment by allowing her ten per cent interest on the amount of the judgment, and one hundred dollars special damages for counsel fees. As the judgment bears eight per cent, interest, no more can be allowed, as has been repeatedly held by our predecessors, and there is no evidence in the record of any special damage, occasioned by payment of counsel foes.

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


author: Buchanan, J.

text:
    Mrs. Jane Cowand, Wife of Akin, v. Mrs. Josephine Pulley, Widow Cowand.
    Article 126 of the Civil Code which provides, that if the husband refuses to empower his wife to appear in court the judge may give such authority, must be construed with reference to those articles of the Code of Practice which declare in what cases a married woman may sue and be sued.
    The general rule is, that a married woman cannot sue or be sued. Where, therefore, a married woman brings an action, she must show, by proper averments, that she is within the exception to the rule.
    Article 10T of the Code of Practice, must be taken in the restricted sense which results from the French text.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      G. W. OhHsty, for plaintiff. L. 0. & G. B. Duncan, for defendant and appellant.
   Buchanan, J.

This is a suit instituted by a married woman with the authorization of the Fourth District Court of New Orleans, her husband having refused to empower his wife to appear in court and institute the same.

The defendant pleaded several exceptions, which were overruled; and judgment being rendered against her on the merits for the amount claimed, she has appealed.

The first exception of defendant is as follows: “ That plaintiff is a married woman, and hath averred no facts in her petition, which in law authorize her to stand in judgment without the aid of her husband.”

The suit is instituted upon a due bill, dated New Orleans, April 8tb, 1848, made by A 7dn & Gowand, in favor of Mrs. Jane AMn or order, on demand, for the sum of four hundred and sixty-four dollars and twenty cents, for value received in borrowed money. The petition alleges that this due bill was given to plaintiff by her husband and one Joseph 0. Gowand,, who were associated together in business; that it has not been paid, notwithstanding repeated demands of payment made of the drawers and also of the defendant, (who is the widow of Gowand,, one of the drawers,) since the death of her husband.

Upon the face of this petition, there is certainly no showing of a separate title in the plaintiff to the due bill sued on. It appears to be an obligation for the payment of money, in her favor indeed, hut created during her marriage, and therefore, prima facie, the property of the community. O. 0. 2871. The due hill professes to be given for borrowed money; hut there is no allegation in the petition that the money borrowed was the separate estate of the plaintiff. ■ The plaintiff relies upon the article 126 of the Civil Code, which provides, that if the husband refuse to empower his wife to appear in court, the judge may give such authority. But this article must be construed with reference to those articles of the Code of Practice, which declare in what cases a married •woman may sue, or be sued. For those cases are exceptional, the general rule being, that a married woman cannot sue or be sued. But when the exceptional case arises, the disqualification disappears; the appearance of the married woman in court becomes essential, and should the husband refuse his authorization, the 126th Article of the Code allows her to appeal from his refusal to the tribunals of the country. Whether this may be done expm'te, whether the wife may legally obtain the order of court without notice to her husband, as has been done in the present instance, we do not consider it necessary now to decide, although this point is raised by another exception filed by defendant — for the reason, that we do not think the case of the plaintiff, as set forth in her petition, is one of those in which our law allows a married woman to sue.

The Code of Practice, Article 107, declares, that all personal actions of the wife are under the control of the husband; and, therefore, that husbands may sue in their own name for the recovery of debts due to their wives, these being under their administration. It is true that this court, in the case of Dugat v. Markham, gave a restricted sense to the last clause of this article, italicised above, in accordance with the French text, which is as follows : qui tombent sous leur administration. Judge Matthews says: “According to the whole context of this article, we think that it relates solely to those claims and rights of action belonging to a wife, of which the husband has the sole management, arising either out of matters appertaining to the dotal or paraphernal property which he administers, either by express or tacit consent on her part. In situations where separation of goods exists, as in the present, the fair presumption is, that each one of the married persons administers his or her separate property.” We concur with our predecessors, that the Article 107 should be taken in the restricted sense which results from the French text.

It is a matter of notoriety in the profession, and has been frequently recognized by this court, that the Code of Practice was originally written in French, by the learned jurists charged with its compilation, andthat the English translation was very negligently executed; the consequence of which has been many gross faults of translation, and perversions of the meaning of the legislator, in the English text.

The case of Dugat v. Markham may be considered then, as having established the doctrine, that the husband has not the control of the personal actions of his wife, when he has not the administration of her property. In that particular case, the petition set forth the marriage contract, by which it was expressly stipulated that no community of goods should exist; that each spouse should administer his or her own effects, separately and independently of the other; and that the wife, in consideration of her having the sole administration of her property, was to support the entire charges of matrimony. There are no similar allegations in the pleadings in the present case, to sustain the claim of the plaintiff 'to maintain in her own name, a suit for the collection of a debt contracted during marriage. This is considered by us a radical vice in the proceedings, and we conclude, that the District Court erred in overruling the first exception of defendant.

Judgment reversed and judgment of nonsuit; plaintiff to pay costs in both courts.


author: Buchanan. J.

text:
    The State of Louisiana v. The Judge of the Sixth District Court of New Orleans, Praying for a Mandamus.
    Article 583 of the Code of Practice does not make it imperative, in all cases, upon the judge who grants an appeal, to make it returnable at the next term of the appellate court. It provides that if there be not sufficient time to admit of the citation of the appellee to appear before the Oourt of Appeal at its next term, owing to the distance of his domicil from the place where the court is held, he shall be cited to appear before the Court of Appeal at the subsequent term.
    "Where an appeal is applied for at the close of the month, or where the pressure of business renders it impracticable to make out the transcript in time to be filed in the next month in the Supreme Court, it is not.unusual for the District Courts of New Orleans to fix the return day of the appeal the month after the next.
    Article 883 of the Code of Practice, gives the Supreme Court the right to extend the time for bi’ing. ing up the appeal, beyond that fixed by the court of the first instance; but it is not necessary that the district judge should refer the appellant to the Supreme Court for an extension of time, for bringing up his appeal when the impossibility of doing so at the next monthly term may be known before the appeal is granted.
    It is an extremely delicate matter for the Supreme Court to interfere with the discretionary powers of the inferior tribunals.
    APPEAL from the Sixth District Oourt of Now Orleans, Oolton, J.

      Labatt, for the petitioner and appellant.
   Buchanan. J.

The relator having filed a petition of appeal in the Sixth District Oourt of New Orleans, on the 21st December, 1863, an order of appeal was thereupon granted by the Judge of that Oourt, and the return day of the appeal was fixed in the order, for the second Monday of February, 1854.

The relator complains of this as a denial of justice, alleging that, by law, the appeal should have been made returnable at the next term of the Appellate Oourt, to wit, in January. He prays for the process of mandamus to compel the District Judge to alter his order, and to make the appeal returnable on the fourth Monday of January instant. The petition particularly charges, that there was ample time to cite the appellee for the January term.

■ The Article 583 of the Code of Practice, does not make it imperative, in all cases, upon the judge who grants an appeal, to make it returnable at the next term of the appellate court. It provides, that if there be not sufficient time to admit of the citation of the appellee to appear before the Oourt of Appeal at its next term, owing to the distance of his domicil from the place where the court is held, he shall be cited to appear before the court of appeal at the subsequent term.

It thus appears that there is a discretion vested by law in the judge, depending upon the fact of the domicil of the appellee. We arc not disposed to inquire into the state of facts upon which that discretion has been exercised in the present instance, although an issue of fact seems to be presented by this petition. It is an extremely delicate matter to interfere with the discretionary powers of the inferior tribunals. That discretion must be governed by the circumstances of each particular caso; circumstances which can scarcely ever be perfectly known to an appellate court.

Neither are we prepared to say, that there are no other cases than that of the domicil of the appellee being at a distance from the Court of Appeal, in which the judge of the first instance may extend the return day of the appeal beyond the next term. The instances are not unusual in the practice of the district courts of New Orleans, when an appeal is applied for in the close of a month, of the return day being fixed in the month after the next. The pros-sure of the business in those courts is frequently such, as to render it impracticable to make out the transcript in time to be filed in the next month in the Supreme Court. It is not perceived that the interests of justice imperatively require that the District Judge should refer the appellant to the Supreme Court for an extension of time for bringing' up his appeal, when the impossibility of doing so at the next monthly term may be known before the order of appeal granted.

Article 883 of the Code of Practice, gives this court the right to extend the time for bringing up the appeal beyond that fixed by the court of the first instance. No article has conferred, in express terms, the power of restricting it to a shorter period. Did we perceive a necessity of interfereing, for the purpose of protecting the appellate jurisdiction of the court, the writ of mandamus is the proper means of effecting that object. But the circumstances of this case, as detailed in the petition of relator, do not disclose such necessity.

It is therefore ordered, adjudged and decreed, that the application for a writ of mandamus in this case, be refused at the applicant’s cost.