author: Lea, J'.

text:
    State of Louisiana v. James Costello.
    It is good ground of challenge in a capital case that the juror has conscientious scruples against capital punishment.
    The court has a right to discharge the jury in a capital case, when such discharge is of evident necessity ; and by necessity is not meant that which is physical only, but it has application to cases of moral necessity, as where the ends of justice would of necessity be frustrated, or where it arises from the impossibility of proceeding with the case, without producing evils which ought not to be sustained.
    The jury empannelled and sworn to try the prisoner on an indictment for murder, before the indictment was heard or evidence received, was, on the suggestion of prisoner’s counsel, and with the written consent of the prisoner, allowed to separate — the District Attorney reserving his right, with the consent of prisoner’s counsel, of making his objection the next day, should he think it important to do so, and to move for the discharge of the jury. On the next day the District Attorney, considering the separation of the jury illegal, moved for the discharge of the jury, which was accordingly ordered. Another jury was subsequently empannelled for the trial of the prisoner, when his counsel filed a plea in bar, alleging that having been once put in jeopardy of his life, he could not be tried by a different and distinct jury. There was a verdict of guilty. On appeal—

      Held: the separation of the jury, under the jurisprudence of this State, would have vitiated the verdict they might have rendered. The motion to discharge the jury was made in good faith; the discharge of the jury was without prejudice to the prisoner’s rights; the prisoner stood before the second jury with every advantage he enjoyed when the first jury was empannelled. The conviction was valid.
    PPEAL from the First District Court of New Orleans, Robertson, J.

      Morse, Attorney General, and Tappan, District Attorney. Field and M. A. Frazer, for appellant.
   Lea, J'.

James Costello having been convicted of the murder of John Dunn by the verdict of a jury,, without qualification, is appellant from a sentence of death rendered in accordance therewith.

The grounds upon which the appellant claims a reversal of the judgment are embodied partly in two bills of exceptions, from the first of whicli it appears that “after the jury had been empannelled and sworn, and at a late hour in the afternoon, and before any testimony had been offered, and before the jury had heard the indictment read to them, and by the written consent of the defendant, given in open court, as well as the consent of their counsel, given in open court at the same time, the jury were discharged until the next morning, at 10 o’clock, and were permitted to separate; and on the next morning, after the jury had appeared1 in court and answered to their names, the District Attorney moved the court to discharge the jury from the further consideration of the cause, upon the ground and for the reason that the separation of the jury, after they were sworn, was error, and that any verdict they might fender against the defendant would be a nullity, which motion of the District Attorney the court sustained and discharged the jury from the further consideration of the case, and ordered another jury to be called to try the defendant,” to which action of the court the defendant, by his counsel, reserved his bill of exceptions, which was signed, the court, however, adding that “when the motion was made to allow the jury to separate for the night, the District Attorney stated that while he did not wish to object, he had his doubts as to the legality of the separation, hut would consent to it, reserving to himself the right to recede from his position, and to require the discharge of the jury when brought into court the next day, in case he should, upon further investigation, find lhat the separation was illegal and would invalidate the verdict. One of the counsel representing the accused stated that there would be no objection to such a course — at least he was so understood by the court.”

By the second bill of exceptions it appears that three jurors were set aside and excluded from the jury upon the challenge of the District Attorney, on the ground that they had conscientious scruples against finding a verdict accompanied with capital punishment. This last ground of defence was abandoned in the argument of the appellant’s counsel, and has been too recently decided to be untenable, in the ease of the State v. Melvin, to require move than a reference to the decision in that ease.

Upon the empannelling of a second jury on the ensuing day, the 30th May, a plea in bar to the prosecution was filed on his behalf by his counsel, setting forth that on the 29th May a jury was duly empannelled and sworn to try the ;issue joined between him and the State, before which jury, so empannelled and selected by himself, he was ready and willing to defend himself, and averring •that said jury so empannelled was discharged (although duly qualified and com-ipetent to try the cause/) against iiis oonsent, and without any necessity for so • doing, therefore he avers that having-once been placed in jeopardy of his life, he ds not liable to be tried by a different and-distinct jury.

The matters of defence set up in this plea present the same legal question as .are contained in the .first bill of exceptions:

1st. Did the court-err-in discharging thesfirst jury ?

2d. If there was no error in discharging the first jury, have the rights of the .prisoner been prejudiced>in any manner by the action of the court?

It is scarcely necessary to discuss -the question whether, upon the mere em-pannelling of a jury, a prisoner can be said to have been put in jeopardy of life or limb, before a word of testimony has been heard against him, and before the jury have received any information concerning the charge made against him by a reading of the indictment.

It may be conceded that in criminal proceedings nothing should be done within the discretion of the court t© the prejudice of the prisoner, and that if in the dismissal of a jury without the consent of the prisoner, he has been deprived of any legal right, or error has been committed to -his prejudice, so that he cannot stand before a second jury -.with every legal advantage »he possessed when the first Jury was dismissed, then it will be considered that such dismissal is equivalent ito an acquittal, and that the accused cannot be called upon to answer to the charge before another jury; but we cannot /recognize the doctrine that it is an .absolute right of the prisoner to be tried'by the firstjury which is empannelled. IHis right certainly is that he shall be tried by a jury legally empannelled, and “'when the jury have been -charged with the trial of a case, the absolute right of the Attorney General to -.enter a nolle prosequi is suspended, or at least qualified, /and cannot be exercised against the Consent of the court, which will in no case grant it if the defence appears ample, or if the motion appears not to be in good Ifaith, or to promote the ends-of justice.” See the State v. Hornsby, 8 R. 589. ’

Itwas formerly ¡held in England that a jury sworn andcharged by the court in cases affecting life or member could not ¡be discharged, .and this doctrine appears to have received the sanction of Mr. Justice Blackstone to this extent, that -“when the evidence on both sides is closed, and indeed when any evidence hath ¡been given, the j-uny .eannot -be discharged, unless in-cases -of evident necessity, dill they (have given in their verdict.” See-4 Black. 361. And in former times the jury were kept without meat or drink, fire or candle, until they should agree upon a verdict, a coercion with reference to which it has been justly remarked, that though effectual in securing a verdict, “ it may he doubted whether a verdict so obtained would do any honor to the administration of justice.”

These doctrines have received a thorough re-examination as applicable to the criminal jurisprudence of this country, and though there has been some conflict of opinion, we think the weight of reason and.authority is in favor of the right of the court to discharge a jury in eases of evident necessity; and by necessity is not meant that which is physical only, but it has application to cases of moral necessity, as where the ends of justice would of necessity be frustrated “or where it arises from the impossibility of proceeding with the case without producing evils which ought not to be sustained.” Wheaton’s American Criminal Law, p. 210.

Mr. Justice Kent lays down the proposition, as borrowed from Sir W. Poster, “ that it is impossible to fix upon any single rule which can be made to govern the infinite variety of cases that may come under the general question touching the power of the court to discharge juries sworn and charged in criminal cases.” “Every question of this kind,” says the same writer, “must rest with the court under all the particular or peculiar circumstances of the case. There is no alternative. Either the court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are once sworn and charged, no other jury can, in any event, be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that momenta door is opened to the discretion of the court to judge of that necessity and to determine what combination of circumstances will create one.” See The People v. Olcott, 2 Johnson’s Cases, 300.

Mr. Justice Story affirms the same doctrine in the following language: “We think that in all eases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of publie justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it'proper to interfere.” See United States v. Percy, 9 Wheaton.

The jurisprudence of our own State is in conformity with these views. See State v. Brown, State v. Hornsby, and State v. Ferguson, 8th Rob. In the last named case, as in the case at bar, it was urged in behalf of the prisoner that though the right of the court to discharge a jury might be conceded in certain excepted cases, yet that right was to be confined and restricted to cases of absolute necessity. “This concession,” savs the court, “reduces the matter to the simple question, necessitas vel non. Of the existence of the necessity the court must necessarily be the judge; an authority to be exercised in all, particularly in capital cases, within the limits of a sound legal discretion.” “ The amount of fancied evils, flowing as is alleged from the concession of such power to courts of jnstice, would be more than compensated by the possible, probable, nay positive infliction of wrong upon the unhappy class of persons themselves for whose benefit and protection the rejection of the power is now invoked.”

We deem it unnecessary further to illustrate this question by a reference to authorities. We think the only question to be determined is, whether under the peculiar circumstances of the case there was a proper exercise of the discretion of the court in discharging the first jury ? Whether the ends of public justice required it; whether the prisoner was prejudiced thereby, or was deprived of any legal advantage by their discharge ?

It is to be observed that the separation of the jury on the evening of the 29th May was granted upon the suggestion, and on the motion to that effect, of the counsel for the accused, who, for the purpose of giving it effect, filed the written consent of the accused thereto with that of his counsel. It appears that the District Attorney suggested his doubts as to the legality of the proceeding, and reserved his right to make his objections on the following day, in which course the counsel for the accused, as they were understood by the court, expressed their concurrence. It is manifest, therefore, that the act which appears to have been considered as an impediment to further proceedings before the first jury, was not one over which the defendant had no control, or which he could not prevent ; on the contrary, it was one which was adopted' at his suggestion, upon his own motion, and granted under reservation of legal objections, to be urged if it should be considered necessary on the part of the State.

The jury having separated, as above stated, the next question is, whether it was a proper exercise of the discretion of the court, under the circumstances, before the trial began, before the jury were charged with the ease, and before the indictment was read or any testimony was heard, to discharge the jury and cause a new one to be sworn in. As the case then stood, equal justice could not be done between the State and the prisoner. Under the jurisprudence of the State, it was a settled rule of practice in criminal' cases, “-that the separation of a jury, after being sworn, without being in charge of a sworn officer, is fatal to the regularity of the proceedings in a capital case.”

We concur in the opinion of Mr. Justice Preston in the case of the State v. Desmond et al. That we should greatly doubt the propriety of such a rule of practice, were the question an original one in our courts, “but a court organized for the very purpose of establishing uniform principles and practice in criminal matters have so decided.” See the Slate v. Hornsby, 8 Rob.

Whatever may be the practice, therefore, in other States, we must consider that in this State it is established in accordance with the ruling in the two cases above quoted. It was idle, under the circumstances, to proceed with the case before the first jury, for ail the purposes of a criminal prosecution. It was proper, therefore, for the District Attorney to suggest that a new jury should be sworn, as the tribunal which was about to try the prisoner could not bring in an effectual verdict of conviction. It is evident, then, that “the motion was made in good faith, to promote the ends of justice,” and without the intention of op. pressing the prisoner; and it has not been shown that the defendant did not stand before the second jury with every advantage which he enjoyed when the first jury was emjrannelled.

The discharge of the first jury, therefore, was without prejudice to his rights. We think, under the circumstance of the case, that it was the duty of the court to discharge the jury. This conclusion disposes of the plea in bar, which is based exclusively upon the alleged error in discharging the first jury. It was properly treated by the court as presenting a question of law exclusively.

Our attention has been directed by the arguments of counsel to the alleged refusal of the court to charge the jury: “That although drunkenness is no excuse for crime, yet if in the consideration of all the circumstances of the case, they believed that the defendant was so much intoxicated as to make himself incapable of reasoning, and committed the act in the heat of passion, they had the right to reduce the killing to manslaughter.”

It appears that the Judge did charge the jury that if they considered that the act had been committed in the heat of passion, they might so reduce their verdict, but it is alleged that he refused to charge them that his being incapable of reasoning, in consequence of intoxication, was sufficient cause for such reduction.

This fact is not made to appear by a bill of exceptions taken to the charge of the court, and we -are therefore relieved from the necessity of enquiring into its correctness.

It is ordered that the judgment'be affirmed.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Jeannette Moch, wife of A. Rose, v. Garthwaite, Giffin & Co.
    Where a plaintiff is seeking to recover from a defendant-anum of money, or to enforce from him the recognition of some right, or the performance of some obligation, a trial had in the absence of the plaintiff will entitle defendant merely to a judgment of non-suit as against the plaintiff. But this rule is strictly applicable to cases where the position of the party sued is purely defensive, and it cannot be extended to cases where the defendant is himself obstructed in the recognition or enforcement of his own rights, or counter claims against the plaintiff.
    In an injunction suit, where the issues have onGe been properly presented to the oourt upon pleadings involving issues upon the merits, a judgment dissolving the injunction, unless appealed from, will be conclusive between the parties,-where the same grounds are again set up to enjoin a second seizure for the same debt, or of the same property.
    APPEAL from the Sixth District Oourt of New Orleans, Ootton, J,

      G. & G. M Schmidt, for plaintiff and appellant. Morse, for defendants.
   Lea, J.

Garthwaite, Giffen & Go. having obtained a judgment in the 2d District Court of New Orleans, against A. Rose, caused property to be seized in execution, which the plaintiff claimed as her property, and for the purpose of vindicating her right as owner, she sued out a writ of injunction. Upon issues regularly made up, the case was tried. The plaintiff being absent and her counsel not appearing, the court, after hearing evidence, rendered a judgment “ in favor of the defendants Garthwaite, Giffen & Go. and M. Marigny, Sheriff, and against the plaintiff Jeannette Moch, wife of A. Rose, decreeing that the injunction therein issued be dissolved, and that the defendants recover damages, &c.” From this judgment no appeal has been taken.

After the judgment had been rendered, upon the attempt of the defendants to proceed with their execution by the seizure and sale of the same property, she filed another petition for an injunction, in the Second District Oourt, setting forth the same facts, but alleging that the former injunction had been set aside through the negligence of her counsel in defending her interests. This petition was accompanied with a rule upon the defendants to show cause why the injunction should not be granted as prayed for. Upon a trial had, the rule was dismissed, and from the judgment refusing the order of injunction, the plaintiff has appealed. While the appeal was yet pending, and within three days after it had been granted, the plaintiff, by her counsel, filed another application for an injunction, in the Sixth District Oourt of New Orleans, alleging her ownership of the property seized, as in the two previous petitions, but omitting all mention of the two previous applications and of the judgments thereon. Upon a rule taken for that purpose, the court set aside the injunction granted upon this last application, with 20 per cent, damages, and from this judgment also an appeal has been taken.

The grounds of the rule were : 1st. That the same matters had been twice decided by the Judge of the Second District Court, in which the original proceedings were had, and that the previous action of the court had become res judicata; and, 2d. That the court was without jurisdiction to enquire into the validity of proceedings had in the execution of a judgment rendered by a court of concurrent jurisdiction.

It will be necessary to examine only the first of these points.

Where a plaintiff is seeking to recover from a defendant a sum of money, or to enforce from him the recognition of some right, or the performance of some obligation, a trial had in his absence will entitle the defendant merely to a judgment of non-suit as against the plaintiff; but this rule is strictly applicable to cases where the position of the party sued is purely defensive, and cannot be extended to cases where the defendant is himself obstructed in the recognition or enforcement of his own rights or counter-claims against the plaintiff. Thus, a “ plaintiff cannot, by discontinuing or submitting to a non-suit, prevent a defendant from trying his claim in reconvention. The claim of a defendant in an injunction for interest and damages, is so analogous, that the same rule will be applied to both.” See 5th An., 298. The same remark will apply to the demand of the defendant, that he be permitted to proceed in the execution of his judgment, and that the legal barrier which has been interposed to the enforcement of his rights by the writ of injunction, be set aside and dissolved.

So far as this issue is presented by the pleadings, it involves a demand made by the defendant against the plaintiff, upon which the latter cannot deprive the defendant of his right to the judgment of the court by absenting himself from the court-room on the day of the trial.

It would be in the power of a judgment debtor at his caprice, and for any length of time to defeat the enforcement of the recognized rights of his creditor, if he could be permitted successively and alternately to renew the same issues, and at his pleasure to deprive the judgment creditor of an adjudication upon them. We think, therefore, that where in an injunction suit the issues home been once ‘properly presented to the court upon pleadings involving issues upon the merits that the judgment dissolving the injunction, unless appealed from, will be “ conclusive between the parties where the same grounds are again set up to enjoin a second seizure for the same debt or of the same property.” See Florance v. Wilcox, 14th L. R., p. 58; 2d An., p. 494; 1st Hennen’s Digest, 803, No. 15.

It is ordered, that the judgment be affirmed.

      Merrick, C. J., not having heard the argument, took no part in the decision of this case.

      No. 4406 was another suit between the same parties, in which, for the same reasons as in this case, the same judgment was rendered.


author: Buchanan, J.

text:
    Edmond M. Gould v. Gardner, Sager & Co.
    The following charge to the Jury held to be strictly correct.
    In order to maintain an action for damages for a malicious arrest, the plaintiff must prove malice in fact, and that the arrest complained of was made, or procured to be made by the defendants from malicious motives, and without probable cause.
    If it appears from the evidence, that the defendants in making or procuring the arrest, acted under the advice of counsel given in good faith; that they had a good cause of action against the defendant in said action, and a legal right to hold him to bail therefor — then the defendants are not liable in damages to plaintiff, and the action cannot be maintained against them.
    The verdict and judgment rendered in the District Court and confirmed in the Supreme Court, in the case of the present defendants against O'Gormel & Gould, in which the plaintiff was arrested and held to bail, and which arrest is the cause of action in this ease, is conclusive evidence of a good cause of action in that suit, and cannot now be contradicted by parol or other evidence.
    Although the firm of O'Cormel & Gould had been dissolved before the commencement of the action instituted by the defendants against plaintiff, yet all the partners of the firm of O’Gonnel <& Gould were bound in solido for all the debts of the firm, and liable to be sued for them.
    The evidence of the existence of malice on the part of the defendants, in making the arrest of the plaintiff, is not sufficient to maintain this action, if there was a good, or probable cause of action at the time, and an apparent legal right to hold to bail.
    jCTL PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    jCTL JETunton & Bradford, for plaintiff. Roselius and Rustís, for defendants and appellants.
   Buchanan, J.

(Lea, J., dissenting.) This is a suit for damages for a malicious arrest in an action of debt: and has been already remanded by this court, upon a bill of exceptions to the refusal of the District Judge to charge the jury, that to maintain this action, it was necessary for the plaintiff to prove malice and the want of probable cause for the arrest.

See the decision in 8th An., p. 11.

Upon the second trial, the Judge gave the following charge to the jury, without any objection on the part of plaintiff:

“1st. That in order to enable the plaintiff to maintain this action against the defendants, it is necessary for the plaintiff to prove malice in fact, and that the arrest complained of, was made or procured to be made by the defendants from-malicious motives, and without any probable cause.

2d. That if it appears from the evidence, that the defendants, in making or procuring said arrest, acted under the advice of counsel, given in good faith, that they had a good cause of action against the defendant in said action, and a legal right to hold him to bail therefor, that the defendants are not liable in damages to plaintiff, and this action cannot be maintained against them.

3d. That the verdict and judgment rendered thereon in this court, and confirmed in the Supreme Court, in the case of Gardner, Sager & Co. v. O'Connel & Gould, No. 3322 of the docket, of this court, in which the plaintiff was arrested and held to hail, which arrest is the cause of action set forth in the plaintiff’s petition, is conclusive evidence of a good cause of action in that suit, and cannot now be contradicted by parol or other evidence.

4th. That although the firm of O' Gonnell & Gould had been dissolved before the commencement of the action instituted by the defendants against plaintiff as aforesaid, yet that all the partners of the firm of O'Gonnell & Gould were bound in solido for all the debts of the firm, and liable to be sued for them.

5th. That the existence of malice on the part of the defendants in making the arrest of the plaintiff, is not sufficient to maintain this action, if there was a good or probable cause of action at the time, and an apparent legal right to hold him to bail.”

’The jury retired with this charge, and returned into court with a verdict against defendants for ten thousand dollars damages, being rather more than double the amount of the judgment which the defendants had recovered of plaintiff in the suit which has given rise to the present action.

This verdict was in direct contradiction to the charge of the court: and that charge was strictly in accordance with the principles of law governing this kind of action, as enunciated in the decision of the Supremo Court remanding 'this cause. Besides the numerous cases upon which that opinion of onr predecessors was based, there are two decisions of a later date, Hall v. Aolclen, 9 An., 219, and Talbot v. Stone, decided at Monroe last summer, and not yet reported, in which the same principles have been reiterated by the present ‘bench.

It seems to have been supposed that this cause was remanded by our predecessors for the purpose of having it decided by the verdict of a jury, whether the arrest of plaintiff was made without probable cause. But there is no ground ‘for'that supposition. Our predecessors not only decided that the action could not be maintained without proof of malice, as well as a want of probable cause for the arrest of plaintiff: but they declared .in the most emphatic language that those elements were wanting to the present case. — “It appears,” •said Judge Dunbar, the organ of the unanimous opinion of the court, “that ¡the defendants in this case were not without probable cause for the arrest of Gould. They acted by the advice of eminent and learned counsel, whose opinion was formed upon a decision of that distinguished jurist, the late Judge .'Martin,'in 'the 'case of Abat v. Robitaille, 4th Louisiana Reports, 226, which ¡for twenty years had been considered as the proper construction of the law of arrest, uritil overruled by a decision of this court in this very case of the arrest of'the plaintiff Gould, reported in 5th An., 553, Gardner, Sager & Co. v. O’Connell & Gould, upon which hhis'action is based. Although we still adhere to our decree in this last mentioned cause, yet there can be no doubt, under the circumstances and previous decisions, that the defendants had, in their action, probable cause for the arrest of Gould.”

And farther down, the court says : “ The question in the present case is not whether the defendants had a probable cause of action-; that has been placed 'beyond doubt by the judgment obtained in their favor against Gould, for the 'whole-of their demand against him ; but whether they had probable cause for the arrest, and we have already said-that they had'.”

In'the face'of these decisive expressions, it is impossible to consider that it was the intention of our predecessors to leave'thismatterof the probable cause for the arrest of plaintiff, an open question. They remanded the cause, because the District Judge had committed a> mistake in the legal .principles which govern such an action as the present, and had thereby>misled the jury which first tried the cause. Our predecessors could only have intended, that this very case should be the-vehicle for. conveying theisound doctrine upon this important subject, to juries in the court of the first instance. For that Supreme Court had, as this one has, full control of the facts as well as the law of civil cases submitted to their revision, and as we have seen, expressed an opinion upon the facts as well as upon the law. But the second jury disregarded this exposition of the legal principles applicable to the facts of the cause thus presented to them with the authority of the Supreme Court, as well as that of the District Court. By their verdict, they are supposed to have told us that Gardner, Sager & Go. had no probable cause for the arrest of Gould. This is, at best, but matter of inference, for the jury have given (and were obliged to give) no reasons for their decision. But the Supremé Court has told us, most distinctly, that Gardner, Sager & Go. had probable cause for the arrest of Gould. Now, whom shall we follow, the Supreme Court or the jury, upon this question of law ? For it is purely a question of law, upon the following state of facts. Gould, the debtor of Gardner, Sager & Go., heretofore a resident of a foreign country, when the debt was contracted, arrives for the first time in New Orleans, a man without family, and seeks employment as clerk in a commercial house, declaring to his acquaintances that it is his intention to establish himself permanently in this city.

A few weeks after Gould's arrival in New Orleans, his creditors, Gardner, Sager <& Go., acting upon the best legal advice, based upon a decision of the Supreme Court in a case presenting identically the same facts, and upon the uniform practice for twenty years as settled by that decision, procure the arrest of Gould for their debt. This arrest is afterwards set aside by the Supreme Court, by a'judgment professedly overruling the cases previously adjudged,, and establishing a new rule of practice. The question of probable cause for-the arrest, is identical with the question of the legal right to arrest; and that legal right is to be determined by the law as it stood at the time the arrest was sued out, not as it stands now. The legal advisers of Gardiner, Sager & Oo\, although of the first eminence in the profession, could not be expected to foresee that the law would be changed in this very case. One of them. (.Mr. Hose-Ivus) has given his evidence very fully upon this point. All that those learned gentlemen could look to, in giving their advice to their clients, was, the decisions of the Supreme Court in pari materia. “ The decisions of the Supreme Court are evidence of what the law is,” said Judge Porter,, in the- case of Breedlove v. Turner, 9th Martin, 367.

That was a suit against a lawyer for damages, for having given his client advice which was not in conformity to a case adjudged by the Supreme Court; by means whereof an attachment had been set aside.

The doctrine advanced by counsel on that occasion,, that lawyers practicing in this State are not obliged to notice judgments given by the Supreme Court, was held to be inadmissible.

Tested by this rule, it is unquestionable, legally speaking,, that there was probable cause for the arrest of plaintiff, at the suit of defendants. See case of Walter v. Sample, decided in the Supreme Court of Pennsylvania, January, 1856. Am. Law Register, vol. 4th, p. 384.

It will be observed that the indebtedness of Gould to Gardner,. Sager & Go., is taken for granted in this opinion. That indebtedness is res judicata, by the final judgment in the first suit; although it was questioned before the jury in the present case, as evidently appears by the call for certain documents by which plaintiff swore he expected to prove that an award of referrees, made before the institution of the suit of Gardner,. Sager <& Co., had established a balance due by the latter to him. The defendants correctly excepted to this evidence. Not only was the inquiry closed by the judgment irf Gardner, Sager & Co. v. O'Connell & Gould, as was said by our predecessors ; but an inspection of that record, (which is in evidence,) shows that the present plaintiff took out a commission in that case, to prove the very same fact.

The judgment of the District Court is therefore reversed and judgment is rendered for defendants, with costs in both courts.


author: Merrick, C. J.

text:
    Alexander Hill v. The New Orleans, Opelousas and Great Western Railroad Company.
    Action for damages for injury done plaintiff by being thrown from the cars. A bill of exceptions was taken to the admission in evidence of the declarations of the Superintendent as to the conduct of the engineer.

      JBy the Court: It is clear that the Board of Directors alone had the power to make admissions in regard to the controversy which would bind the company, and that no ordinary agent of the company would possess the power unless expressly granted.
    In order to enable the plaintiff to recover it must appear that there was no want of care, and no imprudence on the part of the plaintiff, by which the injury was in any manner directly brought about, and that the injury was occasioned by the negligence of the company, or its officers, either in not having provided the necessary apparatus and fixtures to the locomotive or train by which the accident might have been guarded against, or by the carelessness or malfeasance of its agents. If it appear that the injury would have equally happened with or without such guards to the locomotive or train, then the want of them will not increase the responsibility of the company.
    In actions of this kind vindictive damages cannot be given, although the negligence is clearly proven. Vindictive damages are sometimes allowed in the case of wilful or malicious injuries.
    In estimating damages the jury may consider the painful nature of the wound, as well as the length of time the plaintiff may have been kept from his employment, and the permanent character of the injury. The jury should allow such reasonable sum as will compensate the plaintiff, and no more. The company in such cases is not to be punished for the negligence or carelessness of its agents as a crime.
    ÁPPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Livingston, for plaintiff. Cohen, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover damages from the company for injuries occasioned the plaintiff by being thrown, as alleged, from the railroad cars.

It appears that the cars ran over a blind horse, and that the defendant, a passenger upon them, was either thrown or jumped from the cars, wherebjr he was seriously injured. None of the other passengers were harmed, all of them except one other having kept their seats.

The jury gave a verdict of nine thousand dollars in favor of the plaintiff, and •the defendant appealed.

There are two bills of exception in this ease which require our notice. The first is taken to the admisssion in evidence of the declarations of Payne, the Superintendent of the road, made in the presence of the witness Dunbar in a conversation with Hill after the injury. The substance of the statement of Payne was that the engineer had been guilty of the most gross carelessness, and that he had requested Mr. Gibbs, the Chief Engineer, to discharge him, and that he would discharge him as soon as he got control, and that he (the engineer who ran the locomotive) told him (Payne) that he thought the horse off as soon as the engine touched him. would jump '

The testimony of Dunbar as to the declarations of Payne was on the ground jlhat:Payne could not bind the defendants by any remarks, because he could be summoned as a witness, and at the time of making his declarations he was not under oath, and the defendants had no opportunity of a cross-examination. objected to

It is evident that this testimony was calculated to exert a great influence upon the minds of the jury, it being the opinion of one of the officers of the company upon the cause of the accident. Aside from the liability of the loose conversations of the numerous agents of a large company to be misunderstood, it becomes important to knowhow far the declarations of such officers are binding and affect the company in regard to past transactions.

The declaration or admission of an agent is evidence against the principal only on the supposition that the agent repx-esents the principal. But the agent only represents his principal within the scope of the authority delegated. If the agent •is authorized to make a contract for the company, his declarations and admissions in regard to that contract are the acts of the company, and are admissible in evidence as forming a part of the res gesta; But so soon as the transaction is ended the agency in the affair terminates, and the agent has no longer authority to speak of it so as to bind the company.

It is the duty of the engineer to run the locomotive, and keep it in running order. It is not in the scope of his authority to make admissions for the company, or settle controversies on its behalf. So of the Superintendent: it is his duty, we suppose, to superintend, through proper agents, the running of the cars, the receipt and delivery of freight, the transportation of passengers, the expenses and receipts of the road and the keeping of the books. Any contract within the scope of the authority delegated, made by him, would hind the company, but he has no authority to bind it by any admission in regard to business not delegated to him, and which he is without authority to settle.

As the declaration of the engineer to the Superintendent, and fhe declaration of what the engineer said to the Superintendent was retailed by him to the plaintiff in the presencé of the witness after the affair had occurred, it is not important to decide whether the declarations of an agent at the time of the alleged commission of an act of malfeasance is or is not admissible in evidence against the principal.

It is clear that the Board of Directors alone had the power to make admissions in regard to the controversy which would bind the company, and that no ordinary agent of the company would possess the power, uniese expressly delegated. 2 Stark. Ev., 43; Greenleaf, 113,114; Story on Agency, 137.

The court, therefore,erred in permitting the declarations of Payne, in the conversation between him and the plaintiff, to go to the jury.

As the. real question presented by the pleadings is whether the negligence of the defendant’s agents occasioned the injury to the plaintiff, and as the term locomotive is sometimes used as a figurative expression for the train, and as the plaintiff himself had offered testimony tending to show in what manner the horse was run over by the locomotive and the cars, we think the defendat should have been permitted to interrogate the witness Octave Villette, and others, and to show the real manner in which the horse was brought in contact with the cars, and the injury occasioned.

It is apparent,in order to recover, it must appear: 1st. That there was no want of care or imprudence on the part of the plaintiff, by which the injury was in any manner directly brought upon himself; and, 2d. That the injury was occasioned by the negligence of the company or its officers, either in not having provided the necessary apparatus or fixtures to the locomotive or train,by which the accident might have been guarded against, or by the carelessness or malfeasance of its agents.

If it appear that the injury would have equally happened with or without such guards to the locomotive or train, then the want thereof will not increase the responsibility of the company.

This ease must be remanded to the lower court for a new trial. We are the more willing to do so because we are not satisfied with the verdict. It appears to us to be much higher than the testimony as it stands will justify, even if the testimony of defendant’s witnesses be disregarded. In actions of this kind it is not within the province of the jury, although the negligence is clearly proven, to give vindictive damages, as is sometimes allowed in Cases of wilful or malicious injuries. It is true that in estimating the damages where a case is made out, the jury may consider the painful nature of the wound as well as the length of time the plaintiff has been kept from his employment, and the permanent character of the injury; but in assessing the damages the jury should give such reasonable sum as will really compensate the plaintiff, and no more. The company in such case is not to be punished for the negligence or carelessness of its agents as a crime.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court for a new trial, with instructions to the court, in receiving and rejecting testimony to be governed by the views herein expressed, and in other respects to proceed according to law; and it is further ordered, that the plaintiff pay the costs of the appeal.


text:
    Succession of John Wilson.—Heirs of Gardner and G. Burke & Co., Opponents.
    Article 2156 of the Code requires that in conventional subrogations an actual subrogation should "be expressed m\d made at the same time as the payment. It cannot be made in anticipation of the payment, for the payment is the essential basis of the subrogation.
    Nor can a subrogation be validly made after the payment.
    APPEAL from the District Court, Fourth District, Parish of Ascension, Waller-son, J., presiding.

      Illsley, for opponents and appellants. C. A. Johnson, for administrator.
   Buchanan, J.

We are of opinion there is no subrogation to Lalande's judgment and mortgage in favor of Sheafe, as.against Gardner's heirs.

Wilson purchased of Gardner a tract of land on which Lalande had a mortgage resulting from the registry of a judgment against Gardner.

In part payment of the price, Wilson undertook to discharge Lalande’s mortgage, and for that purpose furnished a draft, in favor of Lalande, on Sheafe, at ninety days’ date, (due 3d April, 1848,) which draft was received by the vendor as cash.

Sheafe paid the draft at maturity; hut before paying it, called on the payee and holder, Lalande, to know whether, as a condition of the payment, Lalande would transfer to him (Sheafe) his judgment against Gardner, being the same judgment, the registry of which created the mortgage which the draft was given to satisfy.

A month after the maturity and payment of the draft, a written transfer and subrogation was made by Lalande to Sheafe.

Some stress seems to be laid upon the assumed fact that an agreement for a subrogation was made by the parties previous to the payment. But we regard that as immaterial.. The Code requires (Article 2156) that an actual subrogation should be expressed and made at the same time as the payment. It cannot be made in anticipation of the payment, for the payment is the essential basis of the subrogation. The same obligation cannot exist in favor of two distinct parties, each to the exclusion of the other, at the samb time. Neither can a subro-gation be validly made after the payment. Toullier says (vol. 7, No. 116): “Des l’instant oü le paiement est fait, le créancier est sans pouvoir pour trans-mettre ou céder des droits qu’il n’a plus. Le moindre intervalle entre le paiement et la subrogation la rend nulle et sans effet; car il ne peut plus ceder des droits qui n’existent plus.”

If we look at Lalande's deposition we find that he says: “Before paying it Sheafe called on me to know whether, as a condition of the payment by him, I would transfer to him the judgment above mentioned.” This appears to be substantially all the evidence of the assumed previous agreement; and we do not regard it as evidence of an agreement to subrogate to a mortgage against the property sold by Gardner to Wilson. It is in terms an agreement to transfer a judgment. Now the Article 2156 not only requires that the subrogation should be made at the time of payment, but that it should be expressed, not inferred from an agreement to transfer or deliver the credit or title in satisfaction of which the payment is made. Compare these expressions with those proved in Harrison v. Bisland, 5 Rob., and we think the doctrine of that case will be conclusive of this. The agreement in terms to transfer the mortgage has a later date than the payment.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the opposition of Mrs. Gardner, tutrix of her minor children, and administratrix, and of Glendy Burke & Co., be maintained; and that the account of administration of the estate of John N. Wilson be amended by placing thereon the said opponents, with privilege of vendor, and first mortgage upon the proceeds of sale of the Manehac land, the costs of the opposition and of the appeal to be borne by the appellee.


author: Spofford, J.

text:
    Succession of G. M. Lucas.—P. J. Dubos and Wife, Intervenors.
    Foreign judgments have no executory force in this State until they acquire it by the judgment and fiat of our own tribunals. To procure such a fiat a personal action must be brought upon the judgment — an action, the prescription of which is governed by Article 3508 of the Code.
    The prescription of actions is regulated by the law of the forum.
    Ai-PPEAL from the Second District Court of New Orleans, Lea J.

      Griffon, for intervenors and appellants. Strawbridge, for curator.
   Spofford, J.

On the 5th June, 1831, Bazin & Gamier obtained a judgment for upward of 11,000 francs against Gabriel Marie Lucas before the “ Tribunal de Premiére Instance ” of Pointe a Pitre in the island of Guadaloupe.

In the same year Lucas removed from Guadaloupe to the city of New Orleans, where he engaged in commerce and continued to reside, until his death, in 1851.

Cavaroc was appointed curator of his succession, and in due time filed an account which was homologated, except so far as opposed by one Glausmadec, who claimed to be a creditor for a very large amount, but who discontinued his opposition after evidence was taken tending ts rebut it.

On the 20th April, 1853, the present appellants, Dubos, Mieltes and wife filed what is called an intervention, in which they claim to be creditors of the deceased as subrogees of Bazin <& Gamier by virtue of the Guadaloupe judgment rendered against Lucas in 1831.

A general plea of prescription was filed by the curator in the District Court, which has been made more specific in this court — the prescription of ten and twenty years, under Article 3508 of the Civil Code, being relied on.

The plea must prevail. Foreign judgments are evidences of debt, of high authenticity, but they have no executory force in this State until they acquire it by the judgment and fiat of our own tribunals. To procure such afiat a personal action must be brought upon the judgment — an action the prescription of which is governed by the Article 3508 of the Code. Succession of Tilghman, 7 Rob. 392; Surget v. Stanton, 10 An. 318; Shackleford v. Robinson, 583.

It matters not that the judgment here sued upon was not prescribed by the law of France prevailing in Guadaloupe, as contended by the appellants; for the prescription of actions is regulated by the law of the forum only. More than twenty years had elapsed since Lucas became a resident of Louisiana, before any proceeding was instituted here upon the judgment in question.

Judgment affirmed.


text:
    Succession of Marie S. Viaud, deceased wife of Louis C. Faurie—Charles Faurie et al. v. Louis E. Faurie.
    The omission(to inventory the community property, will not annul or suspend the usufruct established in favor of the surviving spouse, by the Act of 25th of March, 1844.
    The community is entitled to the enjoyment of the property and effects belonging to the husband at the time of the marriage, and owes no recompense for the diminution in value of such effects by reason of such enjoyment.
    Furniture and other movables brought into marriage, if they still exist m specie, may be taken out at the dissolution of the community by the husband who brought them, but he is not entitled to credit for their value at the date of the marriage. If they have perished, the husband must bear the loss. If they have been alienated, upon showing that the proceeds went into the community, the husband can charge the sum to the community.
    C. C. 536, 550, 559, 2871.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. & E. Bermudez, for plaintiffs and appellants. Dxtfour, for defendant.
   Spofford, J.

The plaintiffs are children of the defendant, by his wife, Marie Segonde Viaud, who died in New Orl eans on the 13th of March, 1852.

The defendant, who was common in property with his deceased wife, did not open her succession, or cause any inventory to be made, but continued to enjoy the entire estate which the spouses formerly possessed, and nearly all of which belonged to the community, and none of which belonged to the wife, either as dotal or extra-dotal property.

In September, 1854, the plaintiffs, setting forth some of these facts, prayed that a public inventory be taken of the property of their deceased mother. An inventory of the community was taken and homologated. The plaintiffs then, alleging that their father had administered their mother’s estate since her decease, as negotiorum gestor, and dilapidated the same, prayed that he be ruled to file an account of his administration, so as to show the exact amount of the succession fallen to th em from their mother.

Under an order of court, the defendant filed an account which the plaintiffs opposed on numerous grounds. This appeal was taken by them from a judgment overruling their opposition.

1. They complain that in his account, the defendant did not charge himself with the revenues, or rents and income of the common property, since the death of his wife. To this he answers, that by the Act of March 25, 1844, (p. 99,) “relative to community property,” he was the legal usufructuary of his wife’s share in the community, from the moment of her death, and, as such, he had a right to reap the revenues and is not bound to account for them to her heirs, the children of their marriage. And such is the law. 0. 0. 536. “ The right of the survivor to the usufruct of the inheritance, attaches at the same moment that the right of property accrues in favor of the heirs.” Succession of Bringer, 4 Ann. 395.

It seems to be contended in this court, although such a ground was not laid in the opposition under this head, that inasmuch as the usufruct established by the Act of March 25, 1844, must be governed by the rules of the Code relative to usufructs in general, the neglect of the defendant to have an inventory made of the property comprised in. the usufruct, should entail upon him the loss of the revenues, as a penaltjr. Article 550 of the Code requires an inventory as a preliminary step to obtaining possession of the property subject to the usufruct. -But here the defendant was already in possession of right, and this possession continued after the death of his wife. Until a partition, he had a right to remain in possession. The inheritance of the, plaintiffs was only of an undivided half of the community estate after all its debts were paid. It is'true, an inventory should have been-taken. But we have been referred to no law which declares that the omission of this formality shall'annul or suspend.the usufruct established in favor of the surviving spouse, by the Act of March 25. 1844:. We cannot declare such a penalty. “ Ainsi, la loi n’ayant prononeé-aucune peine, les tribunaux n’ont pas Io droit d’en creer une: e’est au nu-propriétaire de s’opposer á la jouissance de l’usufruitier, tant que les formalités -voulues ne sont pas remplies.” 2 Marcadé, p. 481.

2. The opposition founded upon the adjudication of certain movables of the community to the defendant, at the price estimated in the inventory, was abandoned on the-oral argument in this court.

3. The attorney’s and notary’s fees occasioned by the opening of the succession of Marie iSegonde •Viaud, at the instance of her heirs, were properly chargeable to that succession.

4. There was error, as contended by the appellant, in overruling the opposition of plaintiffs, to the item of $605 02, charged by the defendant against the community for certain blacksmith’s tools and household furniture, which were his separate goods.at.tho date of the marriage, about thirty years since, but which have disappeared, having been alienated, lost, or worn out by use. The community is entitled to the enjoyment of the property and effects belonging to the husband at the time of the marriage. See C. 0. 2371. The communitjr owes no recompense-for the diminution in value of such effects by reason of said enjoyment. .Furniture and other movables brought into marriage, if they still exist in specie, may be taken out at the dissolution of the community, hy the husband who brought them ; but he is not entitled to credit for their value at the date of the marriage. Depas v. Riez, 2 An. 44. If they have perished, the husband must be the loser; for res peril domino. If they have been alienated, upon showing that their proceeds went into the community, the husband can charge that sum to the community. But there is no evidence.to authorize such a charge in the present case.

In this particular, the. judgmentimust be-amended.

5. We concur with the .District Judge in the opinion, that a forfeiture of the usufruct granted.to the defendant by the Act of March 25, 1844, has not been established, ilf he could be required to give bond in favor of his children, (upon which point it is not necessary now to express an opinion,) still the delay to do so does not deprive him of the profits which have been due to him from the moment the usufruct accrued. 0. 0. 559. An inventory has now been made according to law, and the effect of a delay in this formality, has already been considered. The allegation of waste has not been proved. And the fact that the defendant has been guilty of living with a concubine, however reprehensible it may be, has not been declared by the Legislature to be a ground for arresting.the usufruct created by the Act of March 25, 1844.

It is therefore ordered and decreed, that the judgment of the District Court be so amended, as to strike from the defendant’s account, the item of $605 05, (to wit, $239 05, for outils de forge, and $366, for meubles meublans,) charged as a debt of the community lately existing between the defendant and his wife, Marie Segonde Viaud. And it is further ordered and decreed, that in other respects the said judgment be affirmed; the defendant and appellee paying the costs of the opposition in both courts.


text:
    H. George v. Moses Greenwood & Co.
    In a suit to rescind the sale of a slave, it is no defence that a tender has not been made, where the tender is impossible.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Elmore & King, for plaintiff. Semmes & Edwards, for defendants and appellants.
   Buchanan, J.

The plaintiff having purchased, a slave upon the warranty of defendants, which slave runaway a short time after the sale, and w-as lost to plaintiff, notwithstanding every effort made’ to get him back, this-suit is brought for the price, and for expenses incurred in pursuit of the runaway.

In this court, the defendants urge the necessity of a tender of the slave. But the case of Richardson v. Johnson, 1 An. 880, upon which they rely, was that of a plaintiff who alleged himself to be in possession of the same. Here the evidence as well as the pleadings, show the tender to be impracticable. Castillano v. Peillon, 2 N. S. 471. The slave appears to be in the Indian territory, and beyond the reach of any civil process. A resort to force, under the circumstances, would have been dangerous, and, in all probability, unavailing.

The power given to the Indian agent by the Act of Congress of 1834, chapter 161, section 10, relates to a different class of -persons from runaway slaves, namely, unlicensed trader%.trappers, settlers on Indian lands, and foreigners unprovided with passports,'all of whom are declared by law to be intruders in the Indian territory, and liable to be removed by .military force.

Neither does it appear, that the jurisdiction given to the courts of the United States for the districts of Arkansas and Missouri, of crimes committed in the Indian territory, by the Act of Congress of 1844,. chapter 103, would have reached this case, or enabled plaintiff to have.obtained process for the arrest •of his runaway slave from those courts.

The judgment of the District Court appears to have done justice, and is affirmed, with costs..


author: Vooriiies, J.

text:
    Henry Gobet v. Municipality No. One and City of New Orleans.
    where the violation of a contract is passive, the putting in default is a prerequisite to the recovery of damages.

      Á violation is said to be passive, by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated, or implied from the nature of the contract.
    It is a sufficient bar to an action for recovery of damages for the passive violation of a contract, that the defendant was not put in default by the plaintiff pi'evious to the expiration of the time within which the plaintiff stipulated to perform his part of the contract.
    ■Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach, in the absence of any fraud or bad faith, are the amount of the loss he has sustained and the profits of which he has been deprived; and only for such damages as may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. Damages for supposed profits based on the speculative opinions of witnesses, are clearly inadmissable.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Iioselius and Buisson, for plaintiff. Livingston, City Attorney, for defendant and appellant.
   Vooriiies, J.

This is an action for the recovery of damages for the breach of a contract. The plaintiff alleges in substance, that he and one Victor Amiel stipulated, in solido, by authentic act, dated the 24th of July, 1847, with Municipality No. One, to build new wharves and to repair old ones; that under the contract, extensive wharves were built by them, for which they were paid; that be was prevented from executing the contract bn his part, by the neglect of the defendant to furnish the necessary materials in accordance with its stipulations, whereby a larger number of workmen employed for that purpose were forced to remain idle to his great damage ; that his partner having died on the 25th of October, 1847, previous to the completion of said wharves, he proceeded to do the work as the materials were furnished, and completed the same; that the wharves thus built, yielded him very little profit, if any; and as they were more costly than the others, which remained to be constructed and repaired, ho expected to be remunerated for his trouble and labor by the construction of the latter; that the defendant was put in default by authentic act, dated the 20th of May, 1848; and that the contract was also violated by the defendant, by giving the same job to other persons.

The defendant pleaded the general issue.

The cause was tried by two successive juries, whose verdicts were given in favor of the plaintiff The verdict of the first was set aside, and a new trial granted, on the ground that the defendant had not been put in delay; and in regard to the other, a similar motion, founded on the same ground, was overruled, the Judge a guo remarking, that “after two verdicts in the same case for plaintiff, the Supreme Court was the only pow’er which could bestow any efficient relief to defendant, and do justice finally to his case.” The defendant is appellant from a judgment rendered on this verdict.

According to the terms of the contract, the plaintiff was bound to complete the wharves on or before the 31st of October, 1847.

Where the violation of a contract is passive, it is clear that the putting in default is a prerequisite to the recovery of damages. A violation is said to be passive, by not doing what was convenan ted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the contract. O. 0. 1906, 1927, 1925. There are three different wajrs by which the debtor may be put in default; by the terms of the contract, by the act of the creditor, or by the operation of law. It is not pretended here that the defendant was put in mora, either by the terms of the contract or the operation of law. 0. 0. 1905.

The question then recurs, has the defendant been put in default by the act of the plaintiff? The evidence, in our opinion, is insufficient to authorize the solution of this question in the affirmative. The letter of the plaintiff of the 10th of January, 1848, written upwards of two months after the expiration of the term within which he was bound to complete the work, cannot be regarded, it appears to us, as a putting in delay; indeed, the main object of the plaintiff, it would seem from it, was to give notice to the defendant of the dissolution of his partnership by the death of his .partner, on the 26th of October, 1847. It is true, his letter concludes with the following paragraph :

“ Je me trouve maintenant a'rrété dans mes travaux par le manque de mate-riaux suffisans. II me manque pour terminer et livrer les wharves (which he describes) encore 400 ranees. J’ai jusqu’á présent employe tout ce que j’ai pu faire servir, mais la quantité de ranees que je demande m’est indispensable pour compléter mon travail. Je vous prie, messieurs, de vouloir bien donner les ordres pour que cela me soit livré dans le plus court délai possible, afin que tout l’espace du port ci-dessus mentionné puisse étre livré au commerce sans encombre.” But it was evidently not intended as a demand in writing, to put the defendant in default, for there is not a word of complaint in it that he had been retarded or prevented from completing the work by the neglect of the defendant to furnish the necessary materials. On the contrary, we think it may be fairly inferred from it, that no such interruption had previously taken place. “ Je pie trouve maintenant arrété dans mes travaux,” &c. This clearly excludes the idea of any previous interruption.

The next evidence on which the plaintiff relies, is a demand, by protest, on the defendant, made by the notary public, on the 26th of May, 1848. This must also be regarded as unseasonable. Even had the defendant been seasonably put in default, we doubt much, from the circumstances disclosed by the record, whether the plaintiff would have been able to execute his contract within the term stipulated. But, be this as it may, we consider it as a sufficient bar to the action, that the defendant had not been put minora by the plaintiff previous to the expiration of the term within which the latter stipulated to complete said wharves. The contract was then at an end. It is besides shown, that the plaintiff has received payment for all the work which was done by him for the municipality, previous and subsequent to the 31st of October, 1847.

It is unnecessary for us to express any opinion as to the quantum of damages assessed by the jury in this case. It may be proper, however, to add, that in cases of damages arising from the inexecution of contracts, there is no discretion left to the Judge or jury. Where the object of the contract is anything but the payment of money, in the absence of any fraud or bad faith, the law lays down the rule in explicit terms, that the damages due to the creditor for its breach, are the amount of the loss he has sustained, and the profits of which he has been deprived, and only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. Damages for supposed profits, based upon the speculative opinions of witnesses, arc clearly inadmissible. 3 An. 285.

It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed, and that there be judgment in favor of the defendant ; the plaintiff to pay the costs in both courts.


author: Ruchaban, J. Buchanan, J.

text:
    William Whitehead v. Paul Tulane and C. M. Guiramand.
    In «an injunction suit, where there is judgment of nonsuit on the plaintiff’s being called and not appearing, the injunction bond is forfeited.
    A party who enjoins an execution, on the ground of ownership in himself of the property seized, and who, pending the injunction suit, makes a notarial conveyance of the same property to a third person, cannot be allowed to call such third person in warranty.
    It is too late, on an application for a rehearing, to take advantage of the neglect of appellant to file his brief within two days after the cause was set for trial. The appellee should have moved for a continuance when the cause was called for argument.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Roselius and.Hahn, for plaintiff and appellant. L. G. & G. B. Duncan, for defendants.
   Ruchaban, J.

Two questions of law are presented by this record:

1st. Whether a judgment of nonsuit (the plaintiff being called and not appearing) in an injunction suit forfeits the injunction bond?

2d. Whether a party who enjoins an execution on the ground of ownership in himself of the property which has been seized, and who, pending the injunction suit, makes n notarial conveyance of the same property to a third person, can he allowed to call such third party in warranty? The first of these questions was decided in the ease of Penniman v. Richardson, 3 L. R. 103, when Judge Porter said: “The plaintiff in the suit voluntary abandoned it, and by so doing became, with his surety, responsible for all damages which the plaintiff in execution sustained,” etc.

The second question is no less clear. The warranty contended for by defendants, belongs to neither of the kinds mentioned in Article 379 of the Code of Practice. Neither does the conveyance in question contain any such stipulation of warranty. Indeed, as the Judge below remarks, it is quite a reversal of the ordinary course of things, to suppose a warranty of the vendee towards the vendor. The facts, as disclosed by the evidence, are that the defendant, Tulane, having a judgment against one Conner, seized Conner's household furniture in 1842, under a fieri facias, and hid the same off at Sheriff's sale, through a friend, whose evidence is in the record. The property was left in Conner's possession after this sale, and so remained to the year 1847, five years afterwards, when it was again seized by the present plaintiff in execution of a judgment against Conner.

Tulane, who had never exercised any ownership or control since his apparent purchase, then came forward and enjoined plaintiff’s execution, claiming the pro-property. Pending the injunction suit Tulane made a conveyance to Robert R. Barrow of his interest in the property seized, for the consideration of Barrow's note, payable three years after date, with an express renunciation of all warranty .on the part of the vendor. Some time after this conveyance, the injunction suit being assigned for trial, and the plaintiff in injunction, 'Tulane, being called and not appearing, a judgment of nonsuit was entered against him. It is proved that fruitless efforts have been since made by the Sheriff to satisfy the writ against Conner, or to regain possession of the property, the sale of which was enjoined by Tulane in 1847. The value of that property, is proved to be eight hundred dollars, the amount of the injunction bond.

These facts make out a case against the defendants of damages to the full extent of the injunction bond signed by them. .The legal presumption arising from this continued possession in Conner is that', the purchase of Conner’s property by Tulane at Sheriff’s sale was a simulation. The anomalous sale, pending the injunction suit, to Barrow, (who is shown by the record to have claimed other property seized at the same time with this furniture, and under the same execution,) coupled with the equally anomalous call in warranty of Barrow by his vendor, are facts which corroborate this legal presumption.

Perhaps it is even unnecessary to advert to these circumstances, inasmuch as the voluntary abandonment of the injunction suit, in the language of the case cited, has fixed the responsibility of the principal and surety in the injunction bond. We allow interest from the date of the judicial demand.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as between plaintiff and defendants, be reversed; that plaintiff recover of Paul Tulane and C. Morel Guiramand, in solido, eight hundred dollars, with legal interest from the 16th February, 1853, until paid, and costs in both courts; and that, as between the defendants and the warrantor, Robert R. Barrow, the judgment dismissing the call in warranty be affirmed.

ON A REHEARING.

On an application for a rehearing the court rendered the following judgment:

Buchanan, J.

The suggestion in the petition for rehearing, that the appellant’s brief was filed more than two days after the cause was fixed for trial, comes too late. Parties are bound to take notice of the fixing of causes for trial; and the appellee should have appeared in court, when the cause'was called for argument, and moved for a continuance, if he were entitled under the rule of court to do so.

Rehearing refused.