author: Edstis, C. J.

text:
    Municipality Number Three v. James S. Hart.
    (Taxes imposed by political corporations, to whom a portion of the powers of the government are delegated for the purposes of government and police, are not liable to seizure on executions against those corporations; nor are funds collected on judgments for tatfes liable to such seizure. But sums due to municipal corporations for paving, oi“ on bonds tafeeii for paving, are liable to seizure.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      C. De Blanc, Jr., for plaintiff.

      C, de Choiseuh for defendant,
    contended as follows : This is an injunction.-taken out by plaintiffs to arrest certain seizures against its property, under judgment obtained by defendant. There was no contest as to the correctness of the judgment under which the execution issued ; the plaintiff merely contending that the property seized was not liable to' seizure. The injunction was dissolved in the lower court, with damages. On the merits, the only question in controversy is, whether the effects seized are liable to seizure.
    The petition of the plaintiff classes them all under the name of revenues of Municipality Number Three. But it is contended, that this is by far too broad a term to bring them all, if any, under the scope of the decision of this court, in the case of Egerton v. Municipality Number Three, reported in 1st Ann. To simplify the enquiry, we will divide them in three classes, according to the distinctions made in the petition of plaintiffs, and argue each in its turn. And 1st. The petition names “a certain twelve months’ bond given to Municipality Number Three, for the sum of dollars, at a certain sale made of certain property belonging to the succession of Qormley, under a judgment obtained against said succession for banquets made by this petitioner. The case of Egerton v. Municipality Number Three, taken in its broadest construction, only decides that taxes of the municipality could not be seized by its creditors. The bond seized was clearly not obtained for a tax. The judgment was obtained against said succession for banquets made.”
    This court has decided that assessments for paving, ordered to be done by an ordinance of a city corporation made in the exercise of its legal authority, are not taxes. 4th Ann. 1. In New York, churches are exempt from taxation. A religious corporation claimed exemption from certain assessments, under the law in that city, similar to ours, relating to opening of streets, asserting that the bur-then thus imposed was a species of tax ; the Supreme Court held differently. 4th Ann. 2. Matter of the mayor of New York, 11 John, 80. An impost, tax or duty, is an exaction to fill the public coffers, for the payment of the debts aud general welfare of the country. An assessment provided to pay the expense of constructing bridges on causeways, etc., to bo paid only by those who enjoy the advantages resulting from such expense, is neither an impost, tax nor duty. 11 John. R. 11 M. R. 325, 333, 335. It was therefore a mere debt due to the municipality, which had, moreover, assumed a still more transferable form, in the shape of a bond given in paymentof the property of the succession of Gormley, sold under the judgment. It even appears, from the testimony of the treasurer of the municipality, that the plaintiff did consider it as a negotiable instrument, as it had once transferred it to some other of its creditors, though it subsequently returned to the possession of the municipality.
    2d. From the testimony on record, it appears that one of the judgments seized, was for a fine. This is admitted by the plaintiffs; and it therefore stands in the same position as the seizure above mentioned, a mere debt due to the municipality.
    3d. The other seizures are admitted to be judgments rendered for taxes due the municipality. The aggregate amount of them is small, and it is in evidence on the record, by the sheriff, that he has never collected a dollar under them ; in fiiet, he states that the only money in his hands, (and for which this contest was began) is the amount of the bond first mentioned. But even these last, we contend, do not fall under the decision first quoted, which is merely against the seizure of taxes. In that case, the plaintiff had, under his execution, garnisheed several lax payers of the municipality : the court, in substance, decided that he could not assume the right of sovereignty belonging to the municipality, of collecting its taxes; that it was an infringement of the franchise which it alone could exercise.
    When those taxes have been collected and put into another shape, no one will contend that they do not stand in the same situation as any other property of the municipality. A novation has taken place, and they have become transferable rights, the same as a negotiable instrument. The municipality could not have sold its right of taxation and collection, but it can undoubtedly sell any judgments which it may have obtained. This is, in fact, a transaction of every day’s occurrence. Were the municipality to invest its funds in building houses or buying slaves, they would undoubtedly be liable to seizure, although the proceeds of taxes. To argue otherwise, would be at once to say, that no property of the municipality is liable for its debts ; for it is all the proceeds of taxes, fines, or contracts, as in the first instance. If none of its property is liable to seizure, then every judgment given against it is a mockery, for there is no mode of enforcing the judgment of the court, except by a writ of distringas. The sentence of tho court would bo contemptible without the power to enforce. Black., vol. 1, c. 7, p. 242.
    Under all these views of the case, we think we are clearly entitled to an affirmation of the judgment of the lower court, with the damages therein given, according to .the 3d section of the act of March 25th, 1831, p. 102. Dorsey v. Vaughan, 5th Ann. 155.
    We wish, however, to call the attention of the court to the fact, that the main contest, in reality, is, for the bond given in payment for property sold under the judgment against the succession of Gormley; and that its amount is all the money that has ever, or probably ever will, come into the hands of the sheriff; that amount, however, being nearly sufficient to pay the whole judgment of defendant against Municipality Number Three. Our case not coming at all, as we believe, in conflict with the decision in Egerlon v. Municipality Number Three, we would bo willing to rest it hero.
    But such dangerous latitude has of late been given to this decision, such utter faithlessness and bold disregard of its obligations has been displayed by Municipality Number Three, by the extension and perversion of the original meaning, that we deem it a duty we .owe to the public, to this court, and to ourselves, to seize the opportunity we now have of putting the whole matter before the court, that it may review tho decision and restrain it within its original bounds; and we cannot do so more fully than by giving the reasons for his judgment, given by the judge of the lower court. “In the case of Egerton v. The Third Municipality, 1st Ann. 440, the learned judge who delivered the opinion of the court, said in the conclusion, ‘On first view of this question, there is something very repugnant to the moral sense in the idea, that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors.’ Such is the impression made on the mind, and notwithstanding I have read that decree over and over again, my first impressions remain, and I cannot bring myself to render a judgment sustaining an injunction against an honest debt of the municipality established by a judgment; it is a dishonest and immoral act on the part of tho corporation, and no reasoning can justify it.”
    The sovereign is not suable. Black., vol. 1, bk. 1, chap. 7, p. 242, says : “ The law ascribes to the king the attribute of sovereignty or preSminence;” and further, “ Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him, for all jurisdiction implies superiority of power and authority; to try, would be vain and idle, without an authority to redress ; and the sentence of a court would be contemptible, unless that court has power to command the execution of it; but who, says Finch, shall command the king?”
    This principle is recognized in our own Constitution. Under the Constitution, as first adopted, a clause in it was supposed to give'the courts of the United States jurisdiction in a suit between a State and citizens of another State ; such was the decision in the case of Chisholm v. The State of Georgia, 2 Dali. 437. But the States, alarmed for their sovereignty, obtained an amendment which settled this question. The general government of the United States is sovereign; the State of Louisiana is sovereign; but the Third Municipality is not sovereign, nor the city of Lafayette, nor Donaldsonville, nor Baton Rouge, nor the town of Covington, nor is the governor sovereign, nor the Legislature, nor the Supreme Court, although their salaries cannot be seized. The sovereign in this country, is the people, represented by the government they have created and constituted, as their agent, for that purpose. The whole government, and not a.ny separate department. Sovereignty is from its nature, undivided ; it cannot be split and separated. There begins and ends this difficulty. The sovereign cannot be coerced; all others are subject to the law, which is for that reason, by a figure of speech, often termed sovereign. “It is obligatory on all the inhabitants of the State; the foreigner whilst residing there, and his property within its limits, ai’e subject to it.” C. C. "art. 9. “Corporations legally established are substituted for persons.” C. C. 424. “ They may make valid contracts, obligate others and obligate themselves.” At common law, they are called civil persons, in opposition to natural persons, of which they are comprised. They are treated of, in the code, under the title of persons. Bk. 1st. “They may make valid contracts, obligate others, and obligate themselves.” And art. 248 declares, “its creditor can seize no other effects, but such as belong to the corporation.” From which, it strikes mo, a very strong inference is to be drawn, that such effects are liable.
    To my mind it is inconceivable, that whilst the Legislature were thus defining the capacities and incapacities of corporations, including “the corporations of cities,’ in,a code which, as above, subjected all the inhabitants and it to the law, which law declared the property of the debtor, the common pledge of his creditors; (they had not used the word citizen or inhabitant, nor man, nor individual, but they used the word debtor, large enough to cover all persons treated of in this code, and not expressly excepted ;) I say, it is incomprehensible to me, that the Legislature could have overlooked so prominent a principle, if they had intended to sanction so extraordinary a pretension ; and it is extraordinary, that they again overlooked it, when exempting the salaries of officers from seizure. So far from believing in such an intention, it is my belief, that if such a measure were proposed in that body, it would be scouted.
    It is said, that the Legislature intended to give the municipality the means of preserving it, and undoubtedly it is so; and as, undoubtedly, I think they did, so they gave it the power of self government and an unlimited power of taxation ; let it use that power and pay its debts, or let it use a more rare, but much less expensive article, prudence in going into debt; and I think it will be found, the Legislature has afforded to them, not only the means of sustaining itself, but ample and liberal means.
    The Creator made the natural man with the means of sustaining himself; but if, by extravagance and debauchery, he ruins his constitution, his punishments follow, and his means of sustaining life are impaired or destroyed ; and so is it with the corporation, to which abundant power and means have been given, and abused. It may, however, be said, that the right is not claimed to exempt the corporation from suit, or from seizure of its other property; it is only the uncollected taxes which are exempt. Let the reader look back to the quotation from Blackstone: “The sentence of the court would be contemptible, without the power to redress.” The power of even the Supreme Court may be made contemptible by such means ; its power to coerce a corporation, is by the proper writ of distringas, which directs the sheriff to seize their estate, to receive the rents, issues and profits ; if not so, they are above the law. The learned judge "Wilson, in the case of Chisholm v. The State of Georgia, remarked : “A State, like a merchant, makes a contract; a dishonest State, like a dishonest merchant, wilfully refuses to discharge it. The latter is amenable to a court of justice; shall the former be permitted to assume a new appearance, and insult him aud justice, by declaring: T am a sovereign State?’ Surely not; before a claim so contrary to the general principles of right and equity be sustained, the person, natural or artificial, should be well known and authenticated.” Judge "Wilson was one of the most accomplished lawyers of that day, and a man of distinguished moral worth.
    The modern doctrine is, that the powers of corporations are to be strictly construed. Head v. The Provincial Insurance Company. 2 Cranch, 127. 4 Wh. 636. 4 Peters, 152. In the case of Dartmouth College, Chief Justice Marshall said; “Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or incidental to its very existence.”
    It is contended, that the exemption from seizure is thus necessary, and it is precisely here, as I conceive, the fallacy exists. The power of raising the funds necessary for its support is essential to its existence, but when these funds have been improvidently squandered, it is not necessary the course of justice should be stopped or impeded. If the Legislature had passed such a law, it strikes me, it would be unconstitutional, it would impair the obligation of contracts. But whether this be so or not, I am of opinion, that when an unrestricted power of taxation is given, the Legislature is clearly acquitted of the charge of not giving it the means necessary to its existence. Let them use that power, but don’t mock the public, by telling them that it is necessary to the existence of the Third Municipality, that the administration of justice should be suspended as to them, and the decrees of our courts made powerless. It were far better the municipality ceased to exist.
   The judgment of the court was pronounced by

Edstis, C. J.

This appeal is taken by the Third Municipality, from a judgment of the Court of the Fourth District of New Orleans, dissolving an injunction obtained against the defendant’s proceedings, under an execution on a judgment he had recovered against the municipality, and amercing the plaintiff in injunction in ten per cent interest, and twenty per cent damages, on the amount of the judgment enjoined.

The ground upon which the injunction was 'asked for is, that the property-seized in execution is not liable to seizure under the writ.

The objects seized appear to be: 1st, a bond, in favor of the municipality, received from the succession of Gormley, in satisfaction of a judgment against the succession for side-walks made in front of the property of the succession; 2d, a judgment against Lacroix, for a fine; 3d, certain judgments recovered for taxes; and 4th, monoy in the hands of a constable, received by him under judgments for taxes.

In the case of Egerton v. The Third Municipality, 1st Ann. 435, we held, that the taxes due to the municipality could not be seized under execution on a judgment against the corporation. By far the greater portion of the sovereign power of the State is, under our Constitution and laws, exercised by political corporations, which have for their object the administration of the different civil divisions of the territory of the State, to whom part of the powers of government are delegated to that effect. The taxes imposed by those municipal bodies, for the purposes of government and police, with which they are charged, are not liable to seizure, for the same reasons that the taxes imposed by the State are not. This decision was rendered in 1846, and has, on more than one occasion, been referred to, and acted upon by this court. The reasons on which it was based are given at length in the opinion: a repetition of them would be out of place; and we only feel ourselves called upon to state, that there is nothing in the written opinion of the learned judge of the district court, against the decision in Egerton’s case, which was not fully presented and considered before that decision was made.

We think, therefore, that the sums of money in the hands of the constable, being the proceeds of taxes in transit to the treasury, and the judgments for taxes, are not liable to be seized under the defendant’s execution.

This case has been brought before us without any proper preparation of the evidence, on the part of the municipality; and it fails to show, that the bond can be distinguished from any ordinary debt due by Gormley’s succession to the municipality. It is, therefore, not exempt from seizure, under the rule in Egerion’s case. That rule, we think, applies to the judgment for the fine incurred by Lacroix, for the violation of a municipal ordinance. The reasons for the exemption from seizure of the fine for the violation of a municipal ordinance, enacted in furtherance of a law of the State, are identical with those which establish the exemption for taxes. Domat, Droit Public, lib. 1, tit. 5, sec. 1, no. 5 and 6. Doraat’s Civil Law, lib. 4, tit. 2, sec. 2, no. 5 and 7: Translation, 2299, 2301. .

The judgment of the district court, dissolving the injunction, is affirmed, so far as it relates to the seizure and sale of the Gormley bond, or the proceeds thereof, amounting to $334; and in other respects, amended, so that the defendant, James S. Hart, recover from the municipality and P. S. Wiltz, the surety, in solido, ten per cent interest thereon from the 25th of March, 1850, and twenty per cent damages; the plaintiff paying the costs below, and the defendant those of this appeal.


source: Caselaw Access Project

author: Preston, J. Slidell, J.,

license: Public Domain

text:
    C. Dussuau v. Municipality Number One.
    The commissioners appointed to assess the benefits and damages of opening a street in New Orleans, filed their tableaux; which,was homologated. One of the owners of property took a devolutive appeal. The city authorities proceeded to open the street. The judgment was reversed, on the appeal. The party whohad appealed then brought suit against the municipality, as a trespasser, for damages caused to his property by opening the street through it. Held: That the municipality, acting under a judgment of the court, was not a trespasser; but as the plaintiff’s property had been taken without giving him compensation, as required by the Constitution, he was entitled to recover such damage as he actually sustained.
    from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiff.

      R. Preaux, for defendants.
   The judgment of the court was pronounced by

Preston, J.

In 1845, the municipality took legal proceedings, under the act of 1832, for the purpose of opening Exchange alley from Customhouse to Bienville street, with a view to have an uninterrupted continuation of the same from the St. Louis Exchange to Canal street. A report was made by the commissioners appointed to assess the damages and benefits of the improvement to the adjacent proprietors. It was opposed by the plaintiff and others; and on the 24th of April, was referred back to the commissioners, to make a new report. In consequence of their delay in doing so, beyond the time fixed, some of the opponents applied to dismiss the proceedings; which was done. The case, however, was reinstated, and further time allowed to make the report.

The commissioners again failed to make their report, within the time prescribed ; and a second application was made to dismiss the proceedings. But before it was done, some of the opponents had compromised, and the amended report was filed and homologated by the judgment of the court, on the 24th of June, 1847.

The present plaintiff took an appeal, without staying the execution of the judgment; and in January, 1849, it was reversed, on the ground that it was an ex parle judgment, as to him, he having no notice of the proceedings subsequent to the second reference to the commissioners; and that the delays and defaults of the commissioners were unreasonable. The case was remanded for further proceedings according to law. In the meantime, the judgment had been executed, by opening the alley. In doing so, the municipality took three feet and eight and a half inches front on Bienville street, by one hundred and twenty feet in depth, of the plaintiff’s lot, and cut off so much from his three-story house erected on his property.

The plaintiff has brought this suit for damages, alleging that the municipality were trespassers, in taking his ground, and cutting down a part of his house; and claims the value of the ground taken, the whole house, and the loss of rent, as the measure of his damages. The defendants excepted to the petition, on the ground that the matters in controversy were pending in the proceedings of the municipality, fol‘ opening the alley; and that the 'plaintiff could have, under those proceedings, a full opportunity to secure his rights, without commencing a new litigation. The exception Was overruled, on the ground that the plaintiff’s property was not taken under the law for opening streets, but by a trespass; and that he was no longer bound by that law.

The cas0 was tried on its merits, and judgment rendered for $5000, the value of the house : $1000, the value of the ground taken; and $1080, the loss of one year’s rent; amounting to $7080. The record of the proceeding for opening the alley was referred to, in support of the exception, and given in evidence, on tho merits; and it was agreed, that the transcript already in this court should be used, in case of appeal. The municipality cannot be considered trespassers; having taken the plaintiff’s ground, and part of his house, in pursuance of a judgment of court. Tho plaintiff was a party to the proceedings, and appealed from the judgment in the case. It was as binding upon him as upon any other party to the proceedings, until reversed or annulled. As he did not take a suspensive appeal, the other parties had a right to the execution of the judgment. The enjoyment of a great public and private interest, under a judgment, could not be delayed and sacrificed by an appeal, which did not stay execution. On the appeal, this court thought justice required that the plaintiff should have a further opportunity to establish greater damages than were allowed him, and to diminish the benefits with which he was charged; and remanded the case for further proceedings, with that view. The plaintiff did not choose to pursue his remedy in that case, but instituted the present suit. In this suit, the parties have done everything which they could have done, if the plaintiff's claim had been filed as a supplemental opposition to tire report of the commissioners, in the proceedings for opening the alley. It is immaterial, therefore, whether the exception of the defendants should have been sustained or not. The whole merits of the case are before us; and expedit respubliem, ut sit finis litium. The reports are before us, as evidence; their correctness testified to, as the opinions of skillful men, selected on account of their skill, for the very purpose of assessing the damages to be suffered by the plaintiff, in making the improvement.

Leaumont, one of the commissioners, was sworn as a witness in this cause. He is a real estate broker by profession, and knows the value of property. He testifies, that taking every thing into consideration, the plaintiff would have been fully compensated by the damages allowed him on the tableaux. He states, that the valuation made by him, was not a speculative one; but was based upon calculations made by him as commissioner, and on a serious examination of the premises.

Legendre, another commissioner, gives substantially the same testimony, and it was admitted, in order to expedite the trial, that if Cliaigniau or Correjolles, the other commissioners, were in court, they would testify in the same manner. Surgi, a surveyor of the city, and a witness of great experience, considers that the opening of the alley doubled the value of property fronting upon it. The plaintiff’s witnesses represent his property as greatly enhanced in value, by the improvement. Even his agent, examined as a witness, gives the opinion that it was increased in value twenty per cent. This rate, calculated on the value of the lot and new house, amounts to more than half the value of the old house taken down, leaving less than half its value as the plaintiff’s actual damages.

It cannot be otherwise. The plaintiff, by the improvement, obtained a corner on Bienville sheet and Exchange alley, and a front on the latter of one hundred and twenty feet, the whole depth of his lot. He took down the old building, because, as a witness states, however much repaired, it would still be an old building. He erected new buildings, better adapted to the new character of his property, converted into a corner well suited for a coffee-house. It is true, the new buildings cost liim $7000; but then his rents have been nearly trebled. The house taken down was a good, but old building, suited only for a dwelling house and store, in the middle of a square, and rented at $1080 a year. The new buildings, stimulated by the improvement, it was proved on the trial, rented for upwards of three thousand dollars.

The removal of the customhouse to the vicinity, no doubt contributed to this increased rent. It probably would not have contributed much to the rent of the original buildings. It is very possible, too, that the opening of an alley between the St. Louis Exchange and the postoffice and Canal street, may have been a motive for moving the customhouse temporarily to that place.

We have every reason to believe, that the great increase of the plaintiff’s revenue, was mainly owing to the opening of the alley; and think, that he should not have interposed, unreasonably, his property and oppositions to the like increase of the revenues of other proprietors in the vicinity.

The municipality, however, under the Constitution, had no right to destroy his house until they paid his damages; and so far as the judgment allows him a year’s rent, amounting to $1080, it is approved. Considering, too, that the property was taken without previously paying an adequate compensation, notwithstanding the explicit provision of the Constitution to that effect, and that the plaintiff has been deprived, for a length of time, of the expenditures incurred by him in re-building his house, without interest, we think five hundred dollars may reasonably be added to the damages allowed him by the commissioners.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that the plaintiff recover from the defendants, the sum of three thousand three hundred and seventy dollars, with interest from this date; the costs of the district court to be paid by the defendants; those of the appeal, by the appellee.

Slidell, J.,

dissenting. I would have been willing to make some reduction from the amount awarded by the district court, but I have doubts as to the extent of reduction proposed by my brethren. A good deal of the enhancement of value of the plaintiff’s land, which enhancement exists for the time being at least, seems to me attributable to the temporary establishment of the customhouse in the immediate neighborhood. I think, also, there was some hardship, (perhaps not intentional,) in the course pursued towards the plaintiff.


author: Prestoíy, J.

text:
    John Cannell v. Pierre Michel.
    To support an action for a malicious prosecution, both the want of probable cause, and malice, must be proved; but the malice may be inferred from the entire want of probable cause.
    The wanton and causeless injury of an individual is ia itself a malicious act.
    APPEAL from the District Court of Jefferson, Clark, J.

      P. S. Warfield, for plaintiff.

      Stockton and Steele, for defendant.
   The judgment of the court was pronounced by

Prestoíy, J.

One McMillen contracted with the defendant to build him a house in the city of Lafayette. The work was to be paid for in five installments. A cistern was to be furnished, as part of the work to be done, to entitle the builder to payment of the fourth installment.

McMillen engaged Cannell to make and put up the cistern for fifty dollars. He was to receive an order from McMillen, the builder, on Michel, the owner of the property, for the price of the cistern; and it is proved by McMillen, that it was agreed that if the order was not paid, he was entitled to take back the cistern.

He executed the work. The order was not paid by Michel, and he took down and carried away the cistern. Michel prosecuted him for larceny. He was discharged from the accusation, by the justice of the peace, and brings this suit for damages, alleging, that the charge was false and malicious.

We think he is entitled to damages. The house had not been finished or delivered by McMillen, the contractor. No part of the work was yet in the possession of Michel. The cistern was a distinct job, which the plaintiff contracted to execute, in consideration of being paid on its delivery to McMillen. He did not insist on detaining or taking away the cistern, if paid for. Neither Michel nor McMillen had any right to detain, except on payment of the order given for its price. The order on the defendant, for the price of the cistern, indicated that its delivery and the payment of the price was to be simultaneous. The non-payment of the order, the failure of McMillen, and his consent, rendered it reasonable that the plaintiff should take away the cistern, in pursuance of his agreement with McMillen, and not subject himself to a partial payment after a law-suit. He informed the defendant, that it was his intention to do so, if the order was not paid. There was nothing in the conduct of the plaintiff which 'indicated the felonious intention with which he was charged. The defendant saw, and knew, that the plaintiff claimed the cistern as his own property, and as a matter of right, until it was paid for. And in this he was right. The vessel belonged to him, in law and by contract, until it was paid for. There was no pretence, that the property belonged to Michel. It was to become his only on condition of his paying for it. The plaintiff did not file with him an attested account, for the purpose of obtaining payment, if possible, out of the building contract; but an order on him for the payment.

1'If the defendant really believed he had any claim tp the cistern, he could as easily have sued for and sequestered it, as to have caused the arrest of the plaintiff for a larceny, of which the case did not present a single feature. The use of criminal -process to enforce a civil claim, is an intolerable abuse, even when the claim exists. But if the claim is unfounded, it shows a recklessness of the rights and character of .others which amounts to malice.

It is true, as contended, that to support an action for damages for a malicious prosecution, both the want of probable cause for the prosecution, and malice, must be proved. But the malice may be inferred from the entire want of probable cause. The wanton and causeless injury of an individual is in itself a malicious act.

The criminal proceedings instituted by the defendant against the plaintiff, were so entirely without cause that they were malicious.

The judgment of the district court is therefore affirmed, with costs.


author: Preston, J.

text:
    R. Y. Northern v. Williams, Phillips & Co.
    A delivery of merchandise on the levee, under proper circumstances, with notice to the consignee, is a good delivery, and discharges the vessel from all liability.

      APPEAL from the Fourth District Court of New Orleans, Slrawhridge, J.

      Bonford and Britton, for plaintiff,

      Elmore and King, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the defendants for $250, being the freight of two hundred bales of cotton shipped at Nashville, on board the steamboat Old Hickory, consigned to the defendants, and delivered at New Orleans in January, 1850.

The defendants plead, that the cotton was shipped in good order and condition, that the plaintiff obligated himself to deliver it in like good order, and having failed to do so, no freight is due. They allege, that they suffered damage by the failure of the plaintiff to do so, to the amount of $594, which they claim by reconvention. The claim of the defendants was allowed by the district court, the freight deducted, and judgment rendered in their favor for the balance, against the plaintiff.

Although sufficient negligence is proved against plaintiff", to justify the forfeiture of his freight, we have not been able to concur with the district court in the opinion, that the whole damage to the cotton was caused by the plaintiff, and that the whole loss claimed should be borne by him. The rule of law laid down by the district judge, that a delivery on the levee, under proper circumstances, with notice to the consignees, is a good delivery and dischai'ges the vessel, is the correct rule, and by which the decision of this case is to be governed. Abbot, 378. Kohn v. Packard, 3 L. R. 225. The only difficulty is in its application to the evidence.

It is not alleged in tlxe answer or reconvention, that defendants had no notice of the arrival of the vessel and the cotton consigned to them ; and the plaintiff was not required by the pleadings, nor any thing which occurred during the trial, to prove that he gave notice to the defendants, of the arrival of the cotton. They probably got their bills of lading before the vessel commenced discharging her cargo, and saw her arrival announced in the gazettes, which always give full imports of the steamboats which ai'rive, and of the consignments and consignees. Mr. Shortridge, the witness of the defendants, to whose pi’ess the cotton was to be sent, saw the arrival of the vessel announced the morning after she arrived. Mr. Prendergrass and other witnesses prove, that her arrival was reported and known. We ax-e not permitted to believe the defendants less vigilant than other commission merchants. I have no doubt, from the whole evidence, that they did know of the arrival of the cotton consigned to them, soon after it took place ; although the report in the papex-s would not be conclusive. The bill of lading shows that the cotton was shipped in good ox’der; and it is admitted by the defendants, that the two witnesses, Langley and Murphy, would prove that “it was delivered to defendants in good order; and that the freight sued for was duly earned.” These two witnesses were not impeached; and it was incumbent on the defendants to destroy, by testimony, the effect of the admission.

The vessel arrived on Fx'iday night, commenced disclxai-ging on Saturday morning, finished, and left this port, probably with some return freight, on Tuesday morning. It appears, by the testimony of Mr. Smith, for the plaintiff, and also of Mr. Tharter, for the defendants, that dx-ays were not sent to the levee to haul away defendants’ cotton, until Wednesday morning. It therefore lay all day on Tuesday, probably on Monday, and part of it on Saturday and Sunday, on our levee. It was in the very middle of winter-, when our levees, in this damp and rainy climate, are in the worst possible condition. It is px-oved, that it rained on Saturday, and again on Monday; that the weather was vexy unfavorable; and all-the witnesses concur, that the levee was wet and muddy. It was crowded with produce, and thronged with mules and drays carrying it off. We know that the place of landing the boat was under the direction of the harbor master, and not the plaintiff; and it is not probable, that the plaintiff could select the highest places on the levee, on which to pile this particular lot of cotton, on account of t*R© great quantities of produce in port. He, however, fortunately got moorings at the head of Poydras street, the very centre of the lauding for all western produce; and yet it is proved, that some of the bales stood in mud and water, six inches deep. There is no reason to believe he would have landed and left them in a low place, if it could have been avoided. It is more probable, that he would have put them with the other bales on the high parís of the levee, if the drays and mules, horses and carts, and produce already landed, had permitted. Considering the testimony of Mr. Shortridge, we incline to think, he had no choice of place left.

We do not think, the steamboats which pay enormous sums for good landings, and which can be exacted by the city authorities, only on the ground, that the money is appropriated for that purpose, and to afford all other conveniences for landing and re-shipments, are answerable for damages, caused by such a horrid state of the levee as the testimony exhibits, or even by low places and boles at the very head of Poydras street.

By the bill of lading and harbor regulations, the boat, under the circumstances, was forced to land the cotton in a bog; and since the boats pay so much for good landings and all conveniences, we are not prepared to say, that the plaintiff should pay damages for not fully complying with tho custom insisted upon, which would have obliged him to carry dunnage, and raise the cotton out of the mire in which he was obliged to land it. It would probably soon be insisted, that tho masters should leave their tarpaulins to protect the produce from the inclemency of the weather, until it should suit the convenience of the consignees to haul it to the warehouses. We cannot justify the defendants, in leaving their property-two or three days in its exposed situation, and then calling upon the plaintiffs to pay the damage. They should more promptly have put their own shoulders to the wheel, to prevent the damage to property, raised and prepared and brought to market with so much care, toil and expense; and called upon the plaintiff, only for the damage which they themselves could not have prevented.

It appears, that sixty-one bales of the cotton was, by mistake, hauled away with a quantity consigned to Messrs. Me Gregor, Broten ¿y* Co., to the Louisiana, instead of the Alabama press, and remained there for ton or twelve days wet and muddy, and no doubt spoiling, before it was hauled to the press to which it was destined, and properly taken care of. It was marked (F) in a diamond ; the consignment to Messrs. Me Gregor, Broten Sf Co. was also marked (F) in a diamond, and the two consignments were only distinguished by not very striking counter-marks. The clerk of the boat made tip the manifest from the bills of lading, without the counter-marks, and the draymen and agents of the consignees and presses did not discover them on the levee. There was probably fault on behalf of the shippers, in not distinguishing the different lots of cotton by more striking marks, and in not putting all the marks in the bills of lading; negligence in the clerk of tho boat, in not more carefully separating tho cotton on the levee, if there was room; carelessness in the consignees, in not ascertaining certainly what was consigned to them respectively; and carelessness especially on the part of the defendants, in leaving the wet and muddy cotton to rot and spoil ten or twelve days in the Louisiana press ; and we do not think that actions of one against the other, on account of this mistake, should be sustained. It appears, that the damaged bales were sent to a cotton pickery, against the remonstrances of the agent of the boat, who wished the cotton sold at auction, to ascertain the loss ; and that it is the custom of the cotton pickers, to pick from the bales what they consider damaged cotton, and to retain that as their own, in addition to their charges. We think with the district judge, that such a custom conflicts .too much with that state for which we should daily pray, “Lord, lead us not into temptation; ” and that it is a custom which would be more honored in the breach than in the observance.

We do not think, that either the plaintiff or defendants have exercised that diligence and care, with this shipment of cotton, which should be taken of such valuable property, and that the testimony presents a picture of reproach to both parties, as well as to our city authorities, all bound to justify, by ceaseless care, their charge of a commerce of mighty magnitude, which our position commands. We by no means wish to render a decision tending to relax the almost superhuman efforts which we constantly witness on behalf of the officers and crews of steamboats, in contending night and day with rain and mud, on the steep banks of the Mississippi, in shipping or landing the enormous bales and hogsheads in which the produce of its valley is put up; but the efforts of the defendants themselves, in this case, wears too much the aspect of the husband, lately reported, who stood on the decks of the vessel, and reproached the mate and men for not buffeting more lustily the surges of the sea, to save his wife and child who had fallen overboard, to induce us to impose the whole loss on the boat. We do not think, that either the plaintiff or the defendants have exercised that diligence and care with this cotton, which should be taken of such valuable property, and are of opinion, that neither party is entitled to recover his claims from the other.

It is therefore decreed, that the judgment of the district court be reversed, and that the suit of the plaintiff be dismissed, at his costs; that the>claim in reconvention, by the defendants, be dismissed, at their costs, and that they pay the costs of this appeal.


author: Eustis, C. J. Eustis, C. J.

text:
    R. C. Stockton v. R. C. Downey.
    To constitute a valid seizure of tangible property, under an attachment, the sheriff must ■ seize and take into actual possession, the property seized. The return of the writ must show the manner in which it has been executed. It is not sufficient, for the sheriff to return, that he has attached according to law.
    The recordation of an attachment, in the office of recorder of mortgages, has no legal effect.
    Judicial sales ought not to he annulled, unless at the instance of a party who has a right to sue for their rescission, and who can show an injury resulting to him from the sales; and without a previous proffer of full indemnity to the bona fide parties, whose interests are to he affected by the judgment.
    APPEAL from the Fourth District Court of New Orleans, Straiobridge, J.

      A. Steele, for plaintiff.

      Benjamin and Micou, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 6th day of July, 1849, Stockton sued Downey, claiming certain lots of land described in the petition, to be sold by the sheriff, to satisfy a writ offieri facias in the case of Stockton v. Craddick.

He alleged, as the ground of action, that on the 12th and 19lh days of January, 1841, he had brought two suits against Craddick, in the Commercial Court of New Orleans; and had attached, as Craddick’s property,, the lots in question, with other lots; that he recorded the attachments and sheriff’s returns in the mortgage office, on the said days; that said two suits were consolidated by order of the court; that, after due proceedings had therein, he had obtained judgment against Craddick, with privilege upon the property in question, for $13,416 67, with interest from the date of attachment, and costs; that under a fieri facias, issued in said suit, he had caused all the property which had been attached therein, except the lots now claimed to be sold, which produced only $3700, leaving a large balance still unpaid, the amount of which is definitely set forth; and that, during the litigation between Stockton and Craddick, Downey had illegally possessed himself of the property : he prays, that the lots be ordered to be surrendered, to satisfy the balance of said debt and judgment.

Downey filed his' answer, admitting’"possession, and alleging that he held as tenant from Samuel C. Harrison. Harrison answered and alleged, that the lots claimed by Stockton once belonged to Joshua J. Hall; that on the 12th April, 1839, they were mortgaged by Hall, to the Firemen’s Insurance Company, with a clause prohibiting the alienation of the properly; that Hall, having failed to pay the mortgage debt, the insurance company took out executory process from the Parish Court of New Orleans ; under which the lots in question' were sold, on the 13th October, 1841, to Sarah Connelly, on tweve months’ credit; that, after the bond of Sarah Connelly fell due, execution was taken out thereon, and the property again sold, on the 12th December, 1842, to Edward Biggs, who sold the same to defendant.

Upon the trial, the plaintiff traced the titles to the lots in controversy from J. J. Hall (from whom both parties claim) to Craddick, by means of the following conveyances, all by notarial act, and duly recorded at the time of their several dates: 1st. Act from Joshua J. Hall to C. C. Hall, dated July 25th, 1839; 2d. Act from C. C. Hall to Robert Mott, dated November 21st, 1839; 3d. Act from Robert Mott to Craddick, dated July 14th, 1840. Each of these acts conveys the property in controversy. Plaintiff then offered in evidence parts of the record in the case of Stockton v. Craddick, by which he attempted to show that the lots in controversy were attached on the 12th and 19th days of January, 1841; that upon the said attachments a judgment was rendered against the property, for $13,416 67, with interest from 12th and 19th January, 1841, and costs, with privilege on the property attached; that all the other property attached, except the lots now sued for, were sold, and brought at sheriff’s sale, only $3700. The admission of defendant showed, that the attachments were recorded in the mortgage office.

The defendant, Harrison, then offered in evidence, the copy of the record of a suit, by executory process, in the parish court, wherein the Firemen’s Insurance Company were plaintiffs, and J. J. Hall was defendant. By this record it appears, that a petition was presented to the late Parish Court of New Orleans, by the Firemen’s Insurance Company, praying for an order of seizure and salo against the lots in controversy, as the property of J. J. Hall. With this petition, were also presented the note and protest and mortgage made by J. J. Hall to the Firemen’s Insurance Company. The mortgage contains the clause de non alienando; but that clause is not contained in the abstract recorded in the mortgage office.

Under an order for executory process, issued on this petition, a writ of seizure and sale was issued from the parish court; and under this writ, the lots in disputo were sold by the sheriff, and passed to the defendant, under the several conveyances mentioned in his answer. In the court of the first instance, this case was tried on the conflicting claims of the plaintiff, and under his writs of attachment; and the defendant, under his titles, as stated. The district judge determined in favor of the validity of the latter, and gave judgment for the defendant. The plaintiff has appealed.

The defendant stands before us as a bond fide purchaser, without notice, unless he can be held to constructive notice, resulting from the plaintiff’s attachment. An objection has been made, that there was no attachment of the lots; and that this is apparent from the sheriff’s return; which is the only evidence, except the judgments in the suits, on which the legality and validity of the attachments can be tested.

The judgments, to the satisfaction of which the plaintiff seeks to subject the property in dispute, are rendered against Craddick, “ with privilege on the property attached.” The copies offered in evidence do not give their date; nor is there any evidence to fix the day on which they were rendered. The plaintiff has not shown, that the judgments were rendered previous to the sheriff’s sale to Sarah Connelly, which was made on the 13th of October, 1841; which he was bound to do, to enable himself to derive any advantage from the judgments adversely to the defendant. An examination of the originals has relieved us from any consequences resulting from this view of the facts; they both bear date the 7th of February, 1842. So that the plaintiff’s case rests solely on the effect of the attachments, as established by the return of the sheriff. The defendant, and those under whom he claims, were neither parties nor privies to the judgments.

By the writs of attachment, the sheriff is commanded to seize and attach according to law, and to take into his possession, the goods and chattels, lands and tenements, rights, monies, effects and credits of the said Joseph N. Craddick, etc.; and to make return of these writs, and to endorse thereon the manner he Will have executed them. The only compliance with this precept appears by the sheriff's return. On each writ he states, that he received the writs, and attached the following described properly pointed out by the plaintiff; to wit, a certain lot of ground, etc. The lots in dispute are included among those described; and the return concludes : “ Served notice of this attachment on P, Landreaux, Esq., recorder of mortgages, and as herein stated; the defendant residing out of the State of Louisiana. I posted citation and attachment to the door of the church of St. Louis, of New Orleans, in New Orleans, and to that of the room in which this court is held; and executed this writ in all things as the law directs. Returned 15th February, 1841.”

It does not appear, that the lots in dispute were vacant and unimproved; on the contrary, the return states that they were attached, with the buildings and improvements thereon; and it appears, that they were pointed out to the sheriff, by the plaintiff; and from the whole complexion of the return, it does not appear to have been made unadvisedly, nor that its defects were matters of mere neglect on the part of the officer. Why was notice of the attachment served on the recorder of mortgages? So unusual a mode of serving an attachment could only have been under the orders of a vigilant superintendence. In this return, we find a complete omission to comply with the requisitions of the writ, so far as relates to the property attached; alid it has every appearance of an attempt to avoid the responsibility of a disturbance of the possession of the defendant, the consequences of -which would be thrown on the plaintiff and his security on the attachment bond.

By the return, it does not' appear that any seizure of the lots was made, or that any change of possession, real or symbolic, was even attempted. No notice was given lo the tenants to attorn; no act of possession or custody .was done in relation to the property by the sheriff, or any one for him. Under this state of facts, and previous to the rendition of the judgments, the sale to Sarah Connelly was made, under which the defendant holds; and the question is presented, whether there was, in fact, any attachment of the lots in dispute at the time of this sale.

It clearly results from our attachment laws, that, incases in which there is no garnishment, the actual seizure of the property of the debtor is alone the basis of the attachment, and of the jurisdiction of the court. C. P. art. 239, et seq., 256, 257. The sheriff must not only take charge of, and keep possession of, the property attached, but he must make his return in writing, stating the manner in which he has executed the writ of attachment. If the attachment be wrongfully obtainod, the debtor is to be indemnified for the unlawful seizure of his property, in the bond given by the plaintiff. The requisition of the bond, by the law, presupposes the injury to the debtor, by the seizure of his property; and provides for his indemnity against it. The return does notstate the manner in which the writ was executed; which the writ itself, as well as the law, commanded the sheriff to state. The use of the word attach in the return, is no compliance with this requisition. It was the duty of the sheriff, in his return, to give his doings under the writ; so that the court could judge of their sufficiency, and whether they created a valid attachment, on which the court was authorized to proceed to judgment in the case. The conclusion of the sheriff; that he attached, is not to be heeded; as he is not the judge of the fact.

The return is defined to be nothing else than the answer of the sheriff, touching that which he is commanded to do by the writ; and its object is, to inform the court of the truth of the thing. Dalton, who gives this definition in his work on Sheriffs, p. 162, remarks, that the return is the most difficult thing belonging to the sheriff’s office; for the sheriff must be very careful and circumspect in making these returns according to law, both for substance and form ; otherwise, he shall not only endanger himself to be amerced and sued for the same, but he shall ondamage the parties, and may hazard the suit itself.

Every return ought to answer the point of the writ, and the whole writ. It ought to be certain to every intent according to a reasonable intendment and construction. It must state the facts truly, and must not be argumentative. Gwinne on Sheriffs, 453. Sewell on Sheriffs, 386. A return on which the sheriff stated his opinion of the law of a constructive custody, was quashed and not allowed to be amended. Sewell on Sheriffs, 386.

We do not think, that the conclusion to tho returns, “ and executed this writ in all things as the law directs,” remedies the defects in the body of the return. It gives the opinion of the sheriff in general terms on his own acts, and is liable to all the objections made to all the other parts of the return.

We have held in several cases, that to make a valid seizure of tangible property under a fieri facias, the thing levied upon must be taken possession of by the officers. Fluker v. Bullard, 2d Ann. 338. Galbraith v. Snyder, Ib. 492. Offat v. Monguit, Ib. 785. Taylor v. Stone, Ib. 910. Gaines v. Merchants’ Bank, 4th Ann. 371. We therefore conclude, that the proceedings under the writ of attachment in relation to these lots, constituted no impediment whatever to their being sold at the instance of the mortgage creditor, and that the plaintiff has no right, by reason of the attachments, to call in question the validity of the title under which the defendant claims.

We have always held the proceedings under our foreign attachment laws, as matters stricti juris. We think the action of our courts can only be based on the presence of property of the debtor within their jurisdiction, subjected to its process by garnishment, or a real taking into possession ; and that it would not be proper or lawful, to admit a mere fictitious and constructive seizure of the property of the absentee, to be the foundation of judicial proceedings against him. We do not think it necessary to inquire into the regularity of the proceedings of the Parish Court of New Orleans, under which the sale,of the lots was made. Supposing that the plaintiff is a creditor, and even a judgment creditor of Craddick, on the case before us, he has no right to disturb this sale. The mortgage debt has been paid, and the debtor acquiesces in the payment. The amount due on the mortgage debt was paid by the defendant himself, who purchased at the sheriff’s sale for account of another person. After satisfying the debt, the balance of the purchase money was paid over to the debtor Craddick, who was the defendant in the suit. On what principle this sale can be disturbed by the plaintiff, we cannot understand. Such a result, in a- court of justice, would seem to be mere wantonness. The reality of the mortgage debt is not questioned; it has been paid, the debtor consenting thereto. Where is the injury to the plaintiff', resulting from this payment? Why rip up all these affairs, when there is no evidence before us which shows that, even if the plaintiff had any right to insist on their being annulled, the least benefit could result to him thereby ? Suppose, on a re-sale, the property were not to bring the amount of the debt, who is to make good the loss to the mortgage creditor? We do not think that judicial sales ought to be disturbed, unless at the instance of a party who has a right to sue for their rescission or nullity, and who can show an injury resulting to him from the sale, as well as an interest in the result of the suit, and without a previous proffer of full indemnity to the bond fide parties, • whose interests are to be affected by the judgment. Coiron v. Millaudon, 3d Ann. 668. Seawell v. Payne, 5th Ann. 260. Chretien v. Richardson, Ib.

The judgment of the district court is therefore affirmed, with costs.

Same Case — On a Re-Hearing.

THE judgment of the court, on a re-hearing, was pronounced by

Eustis, C. J.

There is an error of fact in the opinion of the court, whicll the counsel for the plaintiff has pointed out, which requires correction. Towards the end of the opinion it is stated, that “ after satisfying the debt, the balance of the purchase money was paid over to the debtor Craddick, who was the defendant in the suit.” The return states, the balance to have been paid over to the defendant. The defendant alluded to, was not Craddick, the original defendant in the suit, but Sarah Connelly, one of the defendants in the execution, which was issued on a twelve months’ bond against said Connelly and John Duggan» This mistake does not, in the slightest manner, affect the principles on which the opinion is based,'and is not material, so far as relates to the result. But we deem it proper to have it corrected. Re-hearing refused.


author: Rost, J.

text:
    Lewis F. Heres v. B. W. Powell.
    The tax of five dollars upon negro traders, for every slave they sell, imposed by the act of 3d of May, 1847, is not unconstitutional. The article 107 of the Constitution gives the Legislature the power of taxing occupations and professions.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Isaac Johnson, Attorney General, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit, by a collector of State taxes, to recover, for the use of .the State, from the defendant, who is a dealer in slaves and keeps a slave-yard in this city, five dollars a head on one hundred and fourteen slaves, placed and kept in his yard for side, during the year 1848. The action is based upon a portion of the sixth paragraph of the third article of the act to provide a revenue for the support of the government of this State, approved the 3d of May, 1847, by which this imposition is created.

The defendant has taken no exception to the form of the action. His answer, besides a plea of the general issue, is, that the claim of the plaintiff is for a tax, and that the law, imposing it, is contrary to the Constitution of the United States and of this State, and an evasion of vested rights. There was judgment against him, and he appealed.

A bill of exceptions was taken to the opinion of the court, admitting Ileres as a witness; but as the facts he proved are admitted of record, it is unnecessary to pass upon it.

Art. 107 of the Constitution of this State provides, that the Legislature shall have power to tax all persons pursuing any occupation, trade or profession. The third article of the act of 1847, in which the provision relied upon by the plaintiff is found, is headed: Persons, trades, professions and occupations, subject to taxation. The different paragraphs of that article establish taxes on trades, professions and occupations, which they specify; and the sixth paragraph provides, that every person who keeps slaves for sale, shall pay five dollar's for every slave thus kept for sale, which shall be paid when the slave is placed ata public depot, or other place for the sale of slaves.

It is clear to our minds, that this tax was imposed under the power granted by the 107th article of the Constitution, and that it is a license tax imposed upon persons keeping slaves for sale. Had it been a tax upon property, it would have been classed differently in the act.

The tax is uniform in this sense, that it does not discriminate, and applies to all persons keeping slaves for sale, whether or not the slaves have previously been introduced from the other States. It is not an attempt to regulate commerce, or to lay a duty on imports, but a simple internal regulation in a matter of taxation, where the power of a State is undoubted.

There is, therefore, nothing in the enactment which conflicts with the Constitution of the United States; it imposes a tax upon a class of traders, the amount of which is in proportion to the number of slaves they sell, exchange or hire; it would be very difficult to say, that such a tax is unequal, within any reasonable meaning of the 107th article of the State Constitution, which requires taxes to be equal and uniform; but even if it was, that requirement is only to be enforced upon taxes laid after the year 1848, and as the tax claimed accrued during that year, this constitutional provision is not applicable to it.

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


text:
    Charles Judson v. C. C. Lathrop.
    The late bankrupt law of the United States allowed partnership effects to be surrendered by one of the partners who had become bankrupt.
    Where a person, at the sale of a bankrupt’s effects, became the purchaser of a debt due the bankrupt by a third person, the debt cannot be compensated by a debt due from the bank» rupt to such third person, which was acquired after the bankruptcy.
    The prescription of two years, for actions by or against assignees in bankruptcy, as pro, vided by the late bankrupt law of the United States, does not apply to cases where one has become the purohaser, at the sale of the bankrupt’s effects, of debts due by third persons.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Halsey and Hoffman, for plaintiff.

      T. A. Clarice, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims of the defendant, the amount of a certain book debt which he purchased at the sale of the assets of the bankrupt estate of Mills' Judson §• Co. The case was tried before a jury, who gave him only a portion of the debt; and he has taken this appeal. He claims a reversal of the judgment disallowing a portion of his debt; and the defendant has also joined in the appeal, praying for a judgment absolutely in his favor.

The defendant contends, that the plaintiff has not, by his purchase, acquired the bankrupt’s rights against him, and that the rights of the firm of Judson Co. did not pass to the assignee by the decree of bankruptcy, on the ground that the bankrupt proceedings were at the instance of one of the partners only, and that his individual interest in the partnership assets was alone affected by such proceedings. The answer to this objection is found in the fourteenth section of the late bankrupt act, which provides that partnership assets may be surrendered in bankruptcy at the instance of one or more of the partners. We find no objection to the validity of the title of the plaintiff to the debt, as it belonged to the bankrupts.

We understand the verdict of the jury to have allowed the sum of $1280 63, in compensation of the demand. This allowance is attempted to be supported, first, by a certain note held by the defendant for 81069 80; and, second, by a claim for damages, and for the value of services rendered.

In relation to the note, it is only necessary to observe, that we do not think that the evidence shows that the plaintiff was the owner of the nóte at the time of the decree in bankruptcy. In relation to the claim for damages and services, we have come to the conclusion, on examining the evidence, that the partnership ' of Mills Judson Co. was not liable for the amount, whatever claim the defendant may hare had against M. Judson personally. The judgment, therefore, will have to be amended accordingly.

We do not think, that the informal proof of the defendant’s claim in the bankruptcy affects, in any manner, the rights of the plaintiff under his purchase, ft was not in conformity with the rules in the bankrupt court, nor was it sufficient in law to constitute proof of debt under the bankrupt act.

The prescription of two years, pleaded by the defendant, is no bar to this action. It relates to actions by and against assignees, and not to those for the recovery of debts disposed of as the bankrupt’s assets. Bankrupt Act of 1841, § 8.

It is ordered, adjudged and decreed, that the judgment of the court below bo reversed; and that the plaintiff recover from the defendant, the sum of $1810 50, with interest thereon at the rate of five per cent per annum, from the date pf judicial demand until paid, and costs in both oourts.


author: Preston, J, SniDEim, J.

text:
    Succession of Jean Bozant.
    The father had sold out his business to his son, who attended to the settlement of the father's business. The son was in possession of various receipts taken for money paid, which, on their face, expressed to have been paid by the father. Held: That the son ought to bo permitted to prove, by parol proof, that the payments had been in fact made by him, and that such evidence did not contradict the written receipts.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Livingston and Reynolds, for appellant.

      Lewis and Bermudez, M. Grivot, and Race and Foster, for appellees.
   The judgment of the court was pronounced by

Preston, J,

Auguste Bozant claims a large sum of money from the executor of his father, Jean Bozant, His claim is resisted by the executor and his co-heirs.

The deceased was an inspector of pork, which appears to have been a profitable business, and he amassed a considerable fortune. In the fall of 1844, he resigned the office, and his son was appointed in his place. He sold his stock in trade to his son, who took charge of his books and the collection of his outstanding claims, and had the winding up of his father’s business. He did not open new books, but continued his accounts in his father’s books. Pie even continued his father’s and his own account with the Mechanics and Traders’ Bank, indiscriminately, in the same bank book. The greatest confidence existed between them, until the death of the father, in 1849. The son was in the habit of sending the father twenty dollars a week, for his personal expenses, until his death, as proved by three or four witnesses.

An account was kept with the father, which exhibited a balance of $3519 against him. Pías this account been sufficiently proved by the evidence in the case? Ferris, who was the clerk of the father and continued by his son, kept the account, and swears positively to its correctness. Pie proves the payment of most of the items to his personal knowledge. He was cashier in keeping and paying out the money which passed through his hands; and he entered the items with particularily in the books. By a long and harassing cross-examination, a few errors were discovered, amounting to as much in favor of the son as against him. He proves, that Jean Bozant had free and constant access to the books; was in the office every day, for a long period after he resigned, and several times examined his account. An account was rendered to him, to which Jje made no objection.

Tlie testimony of this witness is corroborated by Lyttle, who was in the employment of the fathor and the son, from 1841 to 1846. In the slimmer 1845, during the temporary absence of Ferris, he kept the books. He says, the deceased, Jean Bozant, “used the money of Auguste Bozant, as if it was his own. He means, that he used money very freely. Auguste Bozant kept a regular account with his father. He kept a regular set of books. The entries were made first in the day book; they were then posted into other books, to show the state of the accounts. Mr. Jean Bozant was very frequently in the office of his son, and had access to the books. He knows of his having examined his account in the books on one occasion, which he recollects from the fact, that lie asked him to explain one of the entries.” He proves, that Auguste Bozant was in the habit of paying the bills against his father, when approved by him.

Jean Bozant conversed with Riviere, a friend of forty years, and his endorser often and shortly before his death, concerning his affairs, and said he owed his son a large sum of money; that he could not pay him, and would have to sell a house for that purpose.

Correjolles attended to some business of Bozant shortly before his death, and was a friend and acquaintance for upwards of forty years. Two or three months before his death, he conversed with the witness about his affairs-; said he owed his son money, and that he would be obliged to sell a house to pay his debts.

The account of the executor, showing but a small indebtedness of the deceased, as well as the positive testimony, induces us to think, it must have been the debt to his son, to which he referred as rendering it necessary for him to sell a house for its discharge.

I/yttle testifies, that he owed the deceased money, which he pressed him to pay, giving as a reason, that he did not wish to go to his son for money, as he was so largely in his debt. There are many other circumstances proved, tending to the same conclusion, that the father died indebted to his son.

A most rigorous cross-examination was resorted to, for the purpose of discrediting these witnesses or destroying the effect of their testimony. Two of them were the oldest and most confidential friends of the deceased, and the other two had been in his employment while in business, enjoyed his confidence, and, in consequence of that confidence, was continued in the employment of his son in winding up his business. Their combined testimony tends strongly to prove, that the deceased owed his son three thousand five hundred and nineteen dollars.

The latter has endeavored to establish a much larger indebtedness, and has taken many bills of exception to the exclusion of testimony which he offered in support of his claim. We think the court was too stringent in its rulings upon some points of evidence; and that some of the testimony offered and excluded, should have been received. Thus, the opponent had in his possession, and offered as evidence, accounts made out against Jean Bozant, and 2-eceipted by those to whom they were due. He offered to prove, that he had paid them for his father. The testimony was rejected, on the ground that it contradicted the i-ecelpts, and was inadmissible under article 2256 of the Code.

To have proved that the money had not been paid, would have contradicted the receipt; but testimony that it was paid by A. Bozant, though collateral to, did not contradict, the receipt, which was consistent with and supported by the proof. The testimony was peculiarly consistent with the business the son undertook, under the direction of Jean Bozant, — to wind up his affairs, to collect his dues, and pay his debts; a business which would necessarily result in a balance for or against him, to be supported by the vouchers for all monies paid by him, an(j wel.e i1¡g) while in his possession, in whatever form made out. Considering this agency, the testimony did not contradict, but explained and supported the receipts.

Considering that this was a probate case, without the intervention of a jury, we think the ruling of the court might have allowed more latitude on several points of evidence. In consequence of the executor and abook-keeper employed by him, having thoroughly examined the accounts of the father and son, as kept by the latter, and having been examined much in relation to them; and having even stated several things which they contained, and especially the balance of $3519; we would have been glad to have had the material extracts from those accounts before us, although they could not have been given in evidence by the opponent, unless, perhaps, as rebutting evidence.

On the account before us, wo have spent much time in endeavoring to ascertain of what items that balance was composed, and what items of the continuous account in the record do not appear in the account resulting in the balance in the books, so as to reduce the balance of the account sued upon to the same amount or less; but we have been unsuccessful, and fear that the opponent has greatly endangered a just claim, by unjustly claiming more than is due to him.

For these reasons, we consider that the account of the executor should be homologated and be discharged, upon distributing the funds of the estate according to the account. But we are of opinion, that the opponent should not be prejudiced thereby, in an ordinary suit against his co-heirs, for their shares of the true balance of the account; and we would recommend the reference of the accounts to auditors, for the purpose of stating and simplifying them.

With this understanding, that the opposition is dismissed as in case of a non-suit, the judgment of the district court is affirmed, with costs.

SniDEim, J.

I concur in the decree prepared by Mr. Justice Preston, but wish to be considered as not expressing an opinion upon the probable merits of the case, as they are, in all likelihood, to be the subject of future investigation.


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    S. Gillett & Co. v. Elizabeth Deranco and Husband.
    Where the dowry of the wife has not been paid in the presence of the notary, she must prove, as against third persons, that it was actually received. The receipt of the husband is not to be entirely disregarded, but is not proof of the fact, unless supported by other circumstances.
    Where the existence of paraphernal property has been shown, a roceipt for it, given by the husband, in the absence of all interested or reasonable motive to misrepresent the facts, will be entitled to full faith.
    Where the administration of the wife's paraphernal estate is entrusted to the husband, he is responsible for the value, if it should be alionated during the marriage, unless it bo shown that it was applied to her benefit; and it will be presumed, that the husband administered the paraphernal property, unless the contrary be showm.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Benjamin and Micou, for plaintiffs.

      L. Castera, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege, that being judgment creditors of Charles Beranco, they caused a lot of ground, in which he had a seven-eighth interest, to be seized under execution and advertised for sale; and that it was appraised at the sum of $1500; but that it could not be sold, on account of the mortgages I'ecorded against Deranco, in favor of his wife, the defendant in this suit, upon which she claims a balance of about $1850. They aver, that these mortgages, which are particularly described in the petition, have no existence; and pray, that they may be canceled from the records of the office of mortgages, and that the property seized be decreed to be sold free from them.

The defendant pleaded the general issue, alleged this proceeding to be malicious and libelous, and asked damages in reconvention.

On the first trial in the district court, there was judgment dismissing the petition and the claim in reconvention. On appeal, the case was remanded, for the purpose of having the obscurity, which resulted from there being in the record only abstracts of notarial acts, removed.

On the second trial, the district j udge took uncommon pains to examine the originals; and, with a thorough knowledge of the facts, rendered the same judgment. The plaintiffs have appealed.

The defendant claims a legal mortgage to the amount of $1850. The plaintiffs concede, that she has such a mortgage for $369 83; it is, therefore, only necessary to inquire, whether the balance of $1499 17, claimed by her, is due on any of the contested mortgages. The oldest of these mortgages is one for $1551 15, which, if due, more than covers this diffei’ence. The origin of this mortgage is stated as follows, by the plaintiffs’ counsel, in his brief: The succession of Christopher Nagel, of which Mrs. Deranco was one of the heirs, was sold at public auction, for a partition. Charles Deranco, the husband of the defendant, purchased lots and slaves to the amount of $30,710. His wife was an heir for one-eighth of the estate. It was considered illegal that her interest should pass to her husband, and he consequently settled with the other heirs for their seven-eighths, she retaining her one-eighth interest as owner. This settlement appears by an act of partition, bearing date the 16th May, 1835. On the 4th of November, 1835, Deranco and wife sold to Madame Veuve Nagel all the property which Deranco had purchased at the succession sale, and for precisely the same price. In the act of sale, Deranco acknowledged to have received from the purchaser $2588 75, for his wife’s share in the property. This is the origin of the mortgage claimed, the amount of which was reduced to the sum of $1551 25, by an act bearing date the 23d May, 1838, in which Mrs. Nagel re-transferred to the vendors the property seized by the plaintiffs: and Mrs. Deranco agreed to take back her one-eighth interest in the property, instead of the price.

It is urged, on behalf of the plaintiffs, that the mere acknowledgment of the husband, of the receipt of money belonging to his wife, does not make proof against creditors; and the case of Dimitry v. Pollock, 12 L. R. 296, is relied on in support of that position. The case of Dimitry was decided on the authority of Buisson v. Thompson, 7 N. S. 460. Both had exclusive reference to the evidence required to establish the receipt of the dower by the husband, adversely to creditors ; and Judge Martin, who delivered both opinions, took care not to extend the rule beyond cases of dowry. The authority from the Spanish law, on which he relied in Buisson’s case, went no further. Febrero, lib. 3, c. 3, parag. 2, No. 158. In the case of Buisson, the wife had settled the dowry upon herself; and the husband had acknowledged the receipt of it, out of the presence of the notary, in the marriage contract. Neither in this nor in the case of Dimitry, was the origin of the dowry proved. These decisions were undoubtedly correct. The dowry has no previous existence. The settlement of it may be considered as a donation made to the husband, on certain conditions, and for specific purposes; and where it has not been paid in presence of the notary, the wife should be made to prove that it was actually received. But even in cases of dowry, the receipt of the husband is not entirely disrpgarded. The true principle settled in Buisson's case, as recognized in Beard v. Bijeaux, 8 N. S. 463, is, that the receipt from the husband to the wife, admitting the receipts of money, do not make evidence against third persons not parties to them, unless supported by other circumstances.

If it was shown, for instance, that the husband had no means at the time of his marriage; and that, immediately after the celebration of it, he had invested, in real estate, a sum of money equal to that which he had acknowledged to have received as the dower of his wife, his receipt in the marriage contract, supported by that circumstance, would amount to conclusive proof. Many other circumstances might occur, which would verify the receipt of the husband for the dower; but it must be observed, that there are, in relation to paraphernal property, elements of truth and certainty, which seldom exist with respect to the dot. Paraphernal property has a distinct existence, before it comes to the possession of the husband; and when its existence is once established in the hands of a third person, the extreme improbability that the husband would acknowledge to have received it, when he had not, and the absence of all interested or reasonable motive to do so, entitle his receipt to full faith.

The receipt, in this case, was signed by Deranco and his wife; and Deranco acknowledged therein, that he held the amount, and was responsible for it. This declaration was not even necessary to charge him. In the case of Degruy v. S. Pe's Creditors. 4 N. S. 408, the husband and wife had joined in a sale of paraphernal property, and had acknowledged the receipt of the price together. After the failure of the husband, the wife claimed the price thus received, as a mortgage creditor, on the ground, that if the husband and wife join in selling paraphernal property, the price is presumed to have been received by the husband. The court, in that case, held, under another principle of the Spanish law, limiting the rule upon which the plaintiffs’ counsel relies, that where the administration of the wife’s paraphernal estate is entrusted to the husband, he is responsible for the value, if it should be alienated during marriage, unless it be shown that the price was applied to her benefit; that the presumption was, that the husband had received the price; and that the burden of proving, that the wife administered her paraphernal estate, was thrown upon the creditors who claimed adversely to her.

We are not aware, that the codo has made any change in the law; and under the belief that it had not, we applied the same principle, in the case of Vitrac v. Rey, Curator, 2d Ann. 821.

The origin and amount of the defendant’s claim ate abundantly shown. The receipt of her husband was given, not to herself, but to her mother, who had purchased her share in the succession of her father. It is not shown, that the defendant had the administration of her paraphernal estate, or that the sum named in the receipt has been applied to her benefit for things which her husband was not bound to furnish her. Under that state of facts, the evidence is, in our opinion, conclusive.

It has been urged, that the sale from Deranco and wife to Mrs. Nagel, Was not a serious contract. But on this point, as on the sufficiency of the proof of the defendant’s claim, the district judge considered the case too plain for an appeal; and we cannot say that he erred. The evidence in the record is totally insufficient to prove the simulation alleged; nor have proper parties been made for such an issue.

The defendant having shown mortgage claims to the full amount alleged by her, it is clear that this action cannot be maintained.

The judgment is therefore affirmed, with costs.


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    The State v. Jackson, a Slave.
    In the trial of a slave under the act of 1st of June, 1846, the law does not require that he should be tried in the ward in which the offence was committed. It is sufficient, if the trial takes place in the parish in which the offence was committed.
    Where ten jurors are summoned under the act of 1st of June, 1846, to try a slave, and one of them is excused upon his own request, upon the ground he did not understand the English language; this does not vitiate the proceedings, because by the act, nine jurymen constitute a quorum.
    The act of 29th of May, 1846, authorizing juries to qualify their verdict in capital cases, by adding “without capital punishment,” applies only to free persons ; but where that qualification has been added to the conviction of a slave, it is not for him to complain of the modification of the sentence in his favor.
    Where the jury had found a slave guilty of arson, without capital punishment, and the justices sentenced him to imprisonment for life, in the penitentiary; Held.- the sentence was legal, and carried out the manifest intention of the jury.
    The Supreme Court will not revise upon a writ of error, in a criminal case, the decision of the court of the first instance, upon refusing a new trial, upon grounds which rested on the exercise of the discretion of the judge of that court.
    APPEAL from the Justice Court of the Parish of East Baton Rouge, P. A. Walker and T. R. Dufrocq, Justices.

      Isaac Johnson, Attorney General, for the State.

      G. S. Lacey-mA. Loucks, for the appellants.
    This case was appealed upon the following assignment of errors : “ 1st. That it does not appear from the record, that the trial of the accused was had in the ward in which the justice resided, before whom the complaint was made; but on the contrary, aud so is the fact, it was had in a different ward. 2d. That Leon Bonnecaze, who had been summoned as a juror, was set aside without legal excuse. 3d. It appears from the record, that but nine jurors were sworn, to constitute said tribunal, whilst the statute requires ten. 4th. That the jury was unauthorized to find any other verdict than, either, one of guilty, not guilty, or for the infliction of corporeal punishment; and that np sentence can be rendered by the court upon the present finding. 5th. That no judgment can now be entered up against the accused, the tribunal being dissolved, and the justice or justices having failed to sign a sentence to be put in execution, by and with the concurrence of the jurors assisting at the trial. 6th. Upon the ground of newly discovered evidence, as set forth in the following affidavit, to wit:
    “ George S. Lacey, agent for the owner of, and attorney and counsel for, the accused, being duly sworn, doth depose and say: that since the trial of this cause, this deponent has discovered evidence important to the accused, of which, at the time of the trial, he was ignorant, and which he could not with due diligence,' have obtained before. That this deponent expects to prove by Richard Loucks, Andrew Lesage and John R. Dufrocq and others, that the slave Eliza, the principal witness against the accused, had been previously tried and convicted for an assault upon the person of a white woman. He also expects to prove, by Alexander Shaw and by others, that the said Eliza had been severely threatened and whipped until she made the disclosure, that the accused had committed the crime whereof he has been convicted. This expectation being grounded upon the statement of said Shaw, made to Charles La Noue and others, and the said newly discovered evidence this deponent intending to offer, for the purpose of showing the manner in which she was originally induced to fix the crime upon the accused; for the further purpose of showing that she swore falsely in the previous trial, when she stated, as she did, that no force had been used ; and lastly, to be offered for all legal purposes. Furthermore, this deponent expects to prove, by Wm. Taylor, and by other competent witnesses, the bad, vicious, 'and immoral character of the said Eliza; and furthermore, by a slave said to belong to Dwplantier, that the said Eliza had made threats against the accused; and that he expects to prove, by Andrew Lesage and others, that the character of the accused is so bad, vicious, and wanton, as to have compelled her mistress to have her tried and confined for days at a time. And this deponent further says, that this affidavit is not made for the purpose of delay, but to secure substantial justice for the accused; and that this deponent has good reason to believe, and does believe, that upon a subsequent trial of this cause, the accused will be enabled to make a substantial defence upon the merits.”
   The judgment of the court was pronounced by

Preston, J.

Jackson, a slave belonging to Mrs. Newcomb, was accused of having, on the night of the 13th of September, 1850, set fire to the dwelling-house of Mrs. Shaw; was tried and convicted of the crime, and sentenced to imprisonment for life in the penitentiary. From the sentence, he has appealed.

In support of his appeal, he alleges that the second section of an act, approved on the 1st of June, 1846, relative to the trial of slaves, requires, that whenever it shall be necessary to try a slave accused of a capital offence, the justice of the peace before whom complaint is brought, shall notify a justice, resident in an adjoining ward, and shall require such justice to attend at his office the day after, for the purpose of choosing ten persons, owners of slaves, to assist at the trial of the accused. It is said, it appears from the record, that the trial was had in an adjoining ward from that in which the justice held jurisdiction, before whom the complaint was brought. 1. That does not appear by the record. Perhaps it might, by the police jury laws of the parish of East Baton Rouge, establishing the boundaries of wards, which are cited, but not brought before us. 2. The law does not expressly require, that the trial should take place in the ward in which the complaint was made, but only that the magistrate, before whom the complaint is made, should require the attendance of a magistrate from an adjoining ward, at his office, to select ten owners of slaves to assist in trying the accused. It would be more conformable to principle, to try the slave in the Ward in which the offence was committed, than in that of the magistrate before whom the complaint is made, if they be different. But, if he is tried in the parish, he has all the advantages of a trial in the vicinage, which is accorded by law to free white persons, and cannot reasonably complain. Publicity in trials is the greatest protection of innocence, and security to the community that crimes should not go unwhipt of justice. The accused was tried in the office of the mayor of Baton Rouge; probably, taking the year through, the most public place in the parish.

Leon Bonnecaze, one of the persons chosen and summoned to assist at the trial of the accused, was excused, at his own request,' from sitting on the tribunal, “on account of his incompotency to understand the English language, to judge of the evidence as it was given;” not, as urged by the defendant, because he was decided by the court to be an incompetent juror. The law confided to the two justices of the peace, to choose the jurors to compose the tribunal. They exercised a wise discretion in excusing Mr. Bonnecaze, for the reasons assigned, and which would have been highly advantageous to the accused, if he had been innocent.

It is next contended, that an express provision of the act of 184G, providing for the trial of slaves, was violated by empanneling nine, instead of ten, slaveholders, for the trial. The third section of the act required the magistrates to select and summon, within three days if possible, ten owners of slaves, residents of the parish, for the purpose of forming the tribunal. This was done, and the jurors appeared at the time and placed fixed for the trial. Mr. Bonnecaze was then excused for sufficient cause; it was more proper to excuse him before, than after being sworn. By the fifteenth section of the act, the nine remaining jurors constituted a quorum for the trial. The law thus established a tribunal of ten jurors, but declared nine a quorum of the tribunal. From whatever cause one failed to sit upon the trial, the remaining nine constituted a quorum, and formed, with the magistrates, the tribunal required by law.

It is urged, that the tribunal, under the ninth section of the act of 1846, could only inflict corporeal punishment, and not imprisonment for life. This court decided the contrary, in the case of The State v. Lewis, a slave, after a careful comparison of the seventh section of the act of 1843, “ to amend the Black Code,” with the ninth section of the act of 1846, ‘ ‘ relative to the trial of slaves. ” We have attentively weighed the arguments in the present case, and reconsidered the reasons given for the former opinion of the court, and are satisfied the decision was correct.

In the opinion given by this court, in the case of The State v. Lewis, the court referred to the act of the 29th of May, 1846, authorizing jurors to qualify their verdict in capital cases, by adding, “ without capital punishment,” and upon the verdict thus rendered, requiring the court to sentence the convict to hard labor for life in the penitentiary. That act was intended for the government of free persons alone, and the tribunal, in the present case, may have been misled, by the reference to it, into an error in the form of their verdict, of “guilty, without capital punishment.” But their intention is palpable to punish the convict with perpetual imprisonment, and it is not for the slave to complain that they extended to him the leniency expressly provided for free persons, and in the same form. The fourteenth section of the act, relative to the trial of slaves, then, expressly applies to the case: “No proceedings had in accordance with this act, shall be annulled or impeded by any error in form.” And for this reason, the fifth ground relied upon by the counsel of the accused, for the reversal of the judgment, is untenable.

It is urged, that no judgment should have been entered up against the accused, — the tribunal having dissolved without concurring in, and signing, the sentence afterwards signed by the justices, to bo put in execution. A decree, or sentence, was unanimously pronounced and signed by the jurors and magistrates composing the tribunal, which was intended to subject the accused to imprisonment for life; and which, as to free persons, could mean nothing else. Being informal, and not express to that effect, the magistrates afterwards put the sentence into legal form, expressing what we know was intended, and signed it, We should disregard the law just quoted, if we permitted an immaterial infor¿ality to prevail over a substantial ’conviction and sentence of a slave, to a very * mild punishment for an enormous crime.

Lastly, it is contended, that a new trial should have been granted by the magistrates, upon the affidavit, that material evidence had been discovered after the conviction. The reasons given by the magistrates for refusing it, are satisfactory, even if this court could revise the exercise of their discretion on this subject, by a writ of error. This court has held, in the case of The State v. Hunt, and in other cases, that it has no power to do so.

The attention of the court is further called to the fact, that T). D. Arden, who sat upon the tribunal, was not an owner of slaves, as required by the second section of the act of 1846, relative to the trial of slaves. The fact was ascertained before he was sworn. He was neither challenged, nor a bill of exceptions taken to the decision, that he was a competent juror. The accused took the chance of a favorable verdict from him, and cannot now complain. Besides, upon the authorities cited in the case of The State v.--, just decided, we are of opinion, that neither a new trial can be granted, nor the arrest of judgment ordered after verdict, on the ground that a juror, who sat upon the trial, was incompetent. This view of the point renders it unnecessary for us to examine the question, whether Arden was not a competent juror, inasmuch as his wife was an owner of slaves, the revenue from whose labor belonged to him, rendering him as deeply interested in the proper trial of slaves, as if the title to a slave were in him.

The judgment of the district court is therefore affirmed, with costs.