text:
    William C. Squier v. R. C. Stockton.
    The purchaser cauuofc refuse to pay the price upon the ground of an apprehended eviction, when a bond of indemnity is tendered him in conformity with G. G. 2535.
    Where the wife claims property as paraphernal, which was purchased in her name during the existence of the community, she may show the fact, although the notarial act of purchase is silent upon the subject.
    Property purchased by the wife in her own right and name, and paid for out of her paternal inheritance, is paraphernal property.. It is not changed to community property by the circumstance that the heirs, in oi*der to affect a partition, agreed to a sale of all the property, each one being allowed to substitute notes for their purchases at the sale, with the understanding that those notes were to be deducted from the share coming to the heir.
    A person against whom the sheriff holds two executions to satisfy which he cannot find property, is not a sufficient surety on an appeal bond. The fact that he is named as surety in the order of appeal, does not prevent the other party from objecting to him.

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

      T. A. Clarke, for plaintiff.

      Stockton, in propria persona.

   The judgment of the court was pronounced by

Rost, J.

The defendant originally appealed from an order of seizure. The order was affirmed by us and remanded for execution. When the writ of seizure was issued and the property seized, the defendant enjoined it on the ground, that at the time he purchased the property seized, it was subject to judicial mortgages which the holder, Laurent Millaudon, was now proceeding to enforce. He further alleged, that no title had been conveyed to him and prayed for a rescission of the sale.

The answer, besides a general denial, contains special averments that the plaintiff, Squier, had a just and valid title, the nature of which was well known to the defendant; that there is no right of mortgage existing on said property in favor of Millaudon, and that if there was, it could only be exercised after discussing the property in the possession of the original debtor, and that alienated by him since the sale to the plaintiff.

On the trial, the plaintiff tendered and gave bond and security in a sufficient amount to secure the defendant against the eviction alleged, under art. 2535 C. C. On the filing of this bond the injunction was dissolved, and the defendant appealed.

It is shown that the property in controversy formerly belonged to B. Schaumburg, who died in 1833, leaving five children, all of age at the time. The defendant adduces a sale of this property from four of the heirs of Schaumburg to their co-heir Eliza, then married to Ered,eric Beckman. It appears from the act that Mrs. Beckman gave her notes, endorsed by her husband, for the price ; the defendant contends that the nature and character of the property are to be determined by that act alone; that it is nothing more than a purchase made pending marriage which, although in the name of the wife, falls into the community under art. 2371 C. C., and that, as community property, it is subject to the judicial mortgages of Millaudon, who is a judgment creditor of Beckman.

It is urged, on the other side, that all the properly of Schaumburg was sold at auction for the purpose of effecting a partition among his children, under an agreement that the heirs who purchased should give their notes as other purchasers, and that, in the final partition, those notes should be returned to them as part of their share; that the notes given by Mrs. Beckman were returned to her in conformity with this agreement, and that the property having been purchased by her in her own right and name, and paid for out of her share in her father’s estate, is paraphernal, and, as such, unaffected by the judicial mortgages recorded against her husband. Before going into the merits of the issue thus made, it is necessary to notice the bills of exception taken by the defendant.

The first was to the opinion of the court ruling him to trial before the final decision of the suit, brought by Millaudon to enforce his judicial mortgage.

We are unable to say that the court erred. It had clearly a right to proceed so far at least as was necessary to ascertain whether there was any danger of eviction, and if satisfied that there was not, and that the grounds of the injunction had no foundation in justice or truth, it would have been guilty of a denial of justice in refusing to dissolve it. We do not think that the act of 1828 has made any change in the dispositions of the code on which this proceeding is based. It merely gives an additional remedy to enforce those dispositions. Had there been any danger of eviction, the bond subsequently given by the plaintiff, amply secured the defendant.

The defendant also excepted to the opinion of the court admitting in evidence the mortuaria in the successions of Schaumburg and of Beckman ; an act of settlement between Beckman and his wife, and the testimony of Hoffman and Lemcyer to prove that the property in dispute was received by Mrs. Beckman ns part of her share in her fathei'’s succession, on the following grounds; 1st. That the evidence is totally irrelevant to the matters in issue, and not admissible under the pleadings. 2d. That it is offered to prove something beyond what is contained in the act of sale to Mrs. Beckman by her co-heir.

The answer specially denies that the judicial mortgage of Millaudon attaches to the property in dispute. All legal evidence in support of this pleais relevant to the issue, and, therefore, admissible. None of this evidence is offered to prove anything beyond what is contained in the act of sale referred to, but merely to show the character of the property conveyed, which can always be done by parol or other written evidence. The defendant insists that the facts sought to be established by this evidence, should all appear by the sale to Mrs. Beckman. But if they did, that act would not be conclusive evidence against him; and the plaintiff would be required to make those facts certain by the evidence which he now introduces adversely to creditors; those facts can be proved in no other way, and their insertion in the transfer to Mrs. Beckman is not indispensable to her or those claiming under her. It is a familiar rule of evidence, that whatever indicates the nature of the subject of a contract is a just medium of interpretation, and a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered in the abstract, and that parol evidence must generally be resorted to in order to ascertain the nature and character of the subject of contracts. 1 Greenleaf. Nos. 285, 286. 2 Phillips, 294, 354, 355. 2 Starkie, 576.

The evidence adduced establishes, beyond all doubt, the allegations of the plaintiff. A licitation was made to effect a partition among the heirs of Schaumburg. For the regularity of the proceedings, Mrs. Beckman gave her notes for the property she purchased, and, under a previous agreement, those notes were given back to her in the final partition. She acted throughout in her own right and name, and received the property from her co-heirs in part payment of her paternal rights. Under the uniform jurisprudence of this court, that property is paraphernal, and Millaudon’s mortgage does not attach to it. Ellis, Syndic, v. Mrs. Rush, ante p. 116. Stroud v. Humble, 2d Ann. 930. Domingues v. Lee, et al. 17 L. R. 296. Terrell v. Cutrer, Syndic, 1 R. R. 367. Rouse et al. v. Wheeler and Wife, 4 R. R. 115. Savenat et al. v. LeBreton et al. 1 L. R. 522.

It appears that the defendant had obtained a suspensive appeal which, on application of the plaintiff, was set aside, so far as it was suspensive only, on account of the insufficiency of the security furnished.

The person who signed the bond as surety had, at the time, two executions out against him, to satisfy which no property could be found by the sheriff. He was clearly an insufficient surety. The order of the judge was, that he or any other good and solvent person residing in the parish of Orleans, should sign the bond as surety. The order must have been so made at the request of the defendant, and it did not preclude the plaintiff from showing that the person named therein was not good and solvent. The amount of the surety required is complained of as excessive. But as no application was made to the court below to reduce it, that question is not properly before us.

For the reasons assigned, it is ordered that the judgment in this case be affirmed, with costs.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Henry Bonnabel v. Charles Wolter.
    Where an appeal was not filed when made returnable, and no application was seasonably made for further time, the appeal will be dismissed.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      G. Schmidt, for appellant.

      Budd, for appellee.
   The judgment of the court was pronounced by

Slidell, J.

The appeal in this cause was returnable in May, 1850 ; the transcript was not filed until November, 1850. No application was seasonably made for further time, nor has any cause been shown against the motion to dismiss. The motion must be sustained. See New Orleans and Carrollton Railroad Company v. Hood, 4th Ann. 226. Penney v. Sommerville, Ib. 668.

Appeal dismissed, with costs.


author: Preston, J.

text:
    The State v. Anthony Ozer.
    Prisoners arrested for larceny are bailable under the Constitution during the pendency of their examination for commitment by the magistrate.
    Bail bonds taken by the committing magistrate for the appearance of a prisoner during the examination for commitment, if forfeited, may be collected by an ordinary suit in the district court. The summary process provided by law on forfeited bail bonds is not applicable to such a case.
    APPEAL from the District Court of Jefferson, Clarke, J.

      A. W. Jourdan, for the State.

      Michel and Elliott, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 13th of February, 1850, C.Wintz made affidavit before James McGarey, a Justice of the Peace of the parish of Jefferson, for the city of Lafayette, “that two beeves, about the 6th of that month, were feloniously stolen and taken out of his stable in the city of Lafayette, by some persons whose names he did not know, and that he had good reason to believe that his beeves or their hides were concealed in certain premises on Third street in the city.” He asked for a search warrant, and that the persons he would point out should be arrested and dealt with according to law.

The search warrant was issued, with an order of arrest. Eleven hides were found by the officer on the premises, which Wintz and others stated to be their property; and one Jean Pierre Despless, and others about the premises, were arrested and brought before the justice of the peace. It was ascertained that the premises where the stolen property was found belonged to Despless, and he was committed to jail for the want of security. The same day he was bailed by the justice of the peace on his giving bond, with Anthony Ozer as his security, in the sum of one thousand dollars, for his appearance on the 15th of February, 1850, for examination.

A bond was drawn up by bis counsel, and signed by him and his security, in which they acknowledged each to owe the State of Louisiana a thousand dollars, upon the condition that if Despless should appear before the 1-Ion. James Mc-Garey’s court on the 15th of February, 1850, to answer the complaint brought against him and others for stealing cattle, the property of C. Wintz and others, then the recognizance should be void, otherwise should remain in full force and virtue.

On the 15th of February, at the hour appointed for the examination, Despless did not appear; his security being in court was required to produce him, which he failed to do; and thereupon the justice of the peace declared and entered upon his record these facts, and that the bond was forfeited. The State of Louisiana, by the district attorney of the district, has instituted this suit to recover the amount of the bond from Anthony Ozer, the security.

As the defence of this suit is based mainly on the ground that the justice of the peace exercised powers which did not belong to him, and exercised those which did belong to him in an illegal manner, it may be useful to say a word in relation to the class of magistrates to which he belongs. Justices of the peace are the class of judicial officers elected by the citizens, and more immediately connected with the whole population of the State than the other officers of the judiciary department of the Government; and upon their faithful and energetic discharge of their duties, the safety of individuals, and the peace and good order of society depends more than upon any other class of officers. It is their duty to bring before them the highest officer of any department of the Government, as well as the humblest individual against whom a complaint is made, to be examined and deal with him according to law. This power was given at the very first session of the Territorial Legislature in 1805, and has been confirmed by subsequent statutes until the present time.

The Constitution of 1845 organized this body of magistracy as a part of the judiciary, of course with the high powers and for the great purposes we have mentioned; and we must recognize in them all the powers given by the Constitution and the laws. And all the means of carrying their powers fully into effect.

In the words of the act of 1809 : “It shall be the duty of the justice of the peace, whenever there shall be brought before him any complaint or denunciation of any crime or offence, supported by the oath of a credible witness, to receive the complaint, and cause the accused person to be arrested and brought before him, to be examined according to law.”

The proceedings before Justice McGarey, which we have detailed, show that two beeves belonging to Mr. Wintz were stolen from him, in the city of Lafayette, about the 6th of February, 1850; that by virtue of a search warrant their hides were found upon the premises of Despless in that city; that he was arrested and accused of stealing them ; that he gave bond, with defendant as his security, to appear for examination upon that charge; and that he failed to appear for that purpose, as required by the condition of his bond.

Admitting all this, the counsel of the defendant contend that it was the duty of the justice of the peace to have examined Despless without delay, and if, in his opinion, there was a probability of the commission of a crime by the accused, then and then only to have taken a bond for his appearance, and not before himself, but before a higher court; and that, therefore, the bond taken for his appearance for further examination was unauthorized by law, and is a nullity.

The examination of a person accused of a crime consists in receiving and reducing to writing the voluntary declaration of the accused of every thing he may choose to state in relation to the accusation. The magistrate is also bound to take in writing the depositions of all the material witnesses in behalf of the State, and, transmit them to the district court to be delivered to the district attorney, for the purpose of preparing the information or indictment. These depositions should be taken with the greatest care, and should be extremely particular and exact in details; for, those who have had experience as prosecuting officers know the great trouble, delay, expense, and often even the inefficiency of criminal prosecutions, owing to the loose, careless and general ner in which the depositions on behalf of the State are sometimes taken and reduced to writing by the examining magistrates. The examination consists, further, in hearing partially all the witnesses offered by the accused in his defence. The magistrate is further bound to hear counsel on behalf of the accused, not only as to the crime charged, but also as to many incidental questions that may arise as to testimony and bail, and other matters growing out of the accusation.

It may be his duty, as in the present case, to cause houses to be searched for stolen property, which will take time. It may be necessary for him to order the exhumation of the bodies of murdered men, and post mortem examinations by the medical faculty.

It is specially his duty to have written out and executed the recognizances of all material witnesses on behalf of the State, to appear before the court having jurisdiction of the offence to give evidence in the case. He is also bound to take a like recognizance from the witnesses of the accused, if there be danger that they will depart from the parish before the trial. Now, all this requires time and often delay. The witnesses may be temporarily absent, or in remote parts of the parish. The proceeding is the solemn prosecution of an offending individual for the general welfare of society. All the time and means should be taken to render his punishment certain, or to absolve him from unmerited imputation. He should not be released as a discharged felon, nor lightly subjected to further prosecution.

During these necessary delays, what is to be done with the prisoner ? He is not to be allowed to abscond, of course. In England, he was remanded from time to time to prison ; and Chitty states “ that the time for full investigation of the case, and final decision of the magistrate, should depend on the circumstances of each case; and that he should not be restricted to any particular time, as a general rule, for either the prisoner or his accuser may not be able to bring forward his evidence immediately ; and the compelling the magistrate to discharge or commit within any limited time, might be prejudicial to the purposes of justice.” 1 Chitty, Crim. Law, 74.

But our Constitution declares that “,all prisoners shall be bailable by sufficient sureties, unless for capital offences.where the proof is evident or presumption great.” Therefore, during the necessary delays in the examination of the case of The State v. Despless and others, he was entitled by this article of the Constitution to be bailed by sufficient sureties, until the magistrate, after full examination and deliberation, should decide either to discharge him or bind him over to the district court, to be tried upon the accusation of stealing the cattle. He demanded that right himself, and his counsel drew up, and he executed, a bond to appear from time to time to answer to the charge, and not to depart without leave of the court; and the defendant became his surety in the sum of a thousand dollars, that he would comply with the condition of his bond The bond was taken in conformity to the universal practice in the State and Territory of Louisiana from their organizations ; a practice which, we are satisfied, is indispensably necessary under our Constitution and penal laws, without any special legislation to sanction it.

The entry of the justice of the pence on his record, that Despless was called in pursuance of his bond at the time appointed for his examination, and that he failed to appear-; that his surety being present was required to produce him iu court, but did not do so, and that their bond was forfeited, was not a judgment; for as the counsel contends, the justice of the peace had not jurisdiction of the amount; but it was a very proper proceeding to furnish evidence to enforce the penalty of the bond in a court having jurisdiction of the amount.

The counsel of the defendant further urges, that there was no consideration for the bond, that it is not even proved that a crime was committed, and that there could be no breach of the bond because Despless was not put in default. The manifest consideration of the bond was, that Despless being accused of a crime, nay, a thief taken in the mainour, for he was apprehended with the stolen goods actually in his possession; and being under legal arrest for the crime, was released from the prison on giving the bond to appear further and answer to the accusation. And the record abundantly shows that he broke the condition of the bond, by absconding from justice, rendering it impossible to have the crime formally established by evidence, verdict and judgment against him.

The counsel of the defendant lastly urge, that the justice of the peace had no power to proceed upon the bond in the summary manner prescribed by the acts of 1835 and 1837, relative to the recovery of the amount of bonds, recognizances and obligations due to the State in criminal cases. In this they are certainly right, and it was that which rendered the present suit before the district court necessary to enforce the penalty of the bond. But it is further intimated, that the summary mode of proceeding prescribed by those acts should have been pursued in this case in the district court. In this they err, because those laws expressly limit that remedy to bonds, recognizances and other obligations made returnable before the district court, which was not the case with the bond sued upon. It was returnable before the justice himself; and we know of no remedy for the State to enforce its penalty but that which has been pursued by the district attorney by bringing an ordinary suit before a court of general jurisdiction.

He has fully made out his case. And the judgment of the district court is affirmed, with costs.


author: Eustis, C. J.

text:
    Municipality Number One v. Harry Wilson.
    The municipalities of the city of New Orleans have the power of enacting ordinances to prevent nuisances, and to provide for the security of public decency.
    The ordinance of the Municipality Number One. of August 6, 1846, to prevent nuisances, &c., is not identical with the act of the Legislature of March 19,1818, against persons keeping a disorderly inn, gaming house, &c.
    from the Fourth Justice Court of the parish of Orleans, A, Derbes, J.
    P. R. Preaux, for plaintiff.

      H. Train, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment of a justice of the peace of New Orleans, by which he was condemned to pay a fine of fifty dollars for keeping a disorderly house in Gallatin street, in the First Municipality, in violation of an ordinance of said municipality, approved the 6th of August, 1846, entitled “to prevent nuisances and to provide for the security of public decency.”

The objection first taken to the legality of this ordinance, on the ground of the want of power of the government of the municipality to enact, and such power being exclusively vested in the General Council, we think untenable: the law for the division of the city passed in 1836, clearly gives the power to the municipality.

It is also urged that the ordinance is illegal, because the same offence is made criminal by a law of the State. The act of March 19, 1818, subjects to fine and imprisonment whoever shall be guilty of keeping any disorderly inn, tavern, ale house, gaming house or brothel. The offences for which a fine is inflicted by the ordinance, are pot identical with those punishable under the statute. . There is a large class of nuisances of this kind against the public order not included in the statute, which it is the duty of the municipalities to Suppress, and for which the power has been delegated by the Legislature.

The judgment appealed from is therefore affirmed, with costs.


text:
    Succession of James McKinney.
    Whore the husband has authorized the wife to take a suspensive appeal, which was dismissed on account of the insufficiency of the surety, and she takes a second devolutive appeal without the express authorization of the husband, the authorization for the first appeal will be sufficient to sustain the second.
    Where a wife, acting as administratrix, refuses to have placed on the inventory of the succession property which she claims as her own, she cannot be proceeded against by rule to compel her to do so. An ordinary action nmst be resorted to.
    APPEAL from the District Court of Jefferson, Clarke, J.

      A. Marks, Conrad and Dugué, for appellees.

      Elliott, Michel, and Benjamin and Micou, for appellants.
   The judgment of the court was pronounced by

Slidell, J.

The appellant, Mrs. Chandler, a married woman, was the defendant in a rule. A judgment being rendered against her, a motion for a suspensive appeal was made in her behalf by her counsel. An appeal was ordered, and a bond was given by her, at foot of which bond is an authorization to execute it, signed by the husband. Subsequently, a rule was taken to set aside the suspensive appeal, upon the ground that the sureties given were insufficient and incompetent. The rule was made absolute. Afterwards, on motion of Mrs. Chandler’s counsel, (stating that she is authorized and assisted by her husband,) there was nn order for a devolutive appeal. A bond was given, signed by the surety, and not by the wife nor husband.

It would have been more formal if the husband had appeared upon the second motion, but as he had clearly authorized her to appeal by signing the first appeal bond, we cannot regard her as standing before this court without the authorization of her husband; and we therefore refused the dismissal prayed for on that ground. The other grounds of dismissal we understand as being waived by , _r , , , „ , ° counsel, Vv e therefore proceed to the consideration ot the cause.

The action .commenced by a rule taken in the mortuaria of James McKinney, deceased, by a judgment creditor of said succession, upon Mrs. McKinney administratrix of said succession, to show cause why she should not inventory certain properties set forth in said rule, which it is alleged she has fraudulently concealed and withheld with a view to defraud creditors. That she claims the property as her own, although the same was placed in her name by her deceased husband, James McKinney, with a view to conceal it from and defraud his creditors. To this proceeding the defendant pleaded an exception, that she could not be thus attacked by a rule, and could only be sued in an ordinary action. This exception was overruled by the court; she was .compelled to join issue, and try the cause on the merits.

In our opinion, the court below erred. It is correctly argued by the counsel for the defendants, that the proceeding does not seek to render her accountable for property which came into her hands as administratrix, but is substantially a proceeding in the nature of a revocatory action. The rule itself, as well as the evidence, shows that the property was originally acquired in the defendant’s name. The object is to bring this property into the succession. The controversy involves the title to property, and questions of fraud and simulation. The brief filed by the plaintiff’s counsel exhibits the complicated nature of the subject to be investigated. Was there a marriage between McKinney and the defendant before they came to this State? If not, was there the uninterrupted cohabitation; the public acknowledgment as man and wife; the introduction into society, which usually characterize the marriage relation ? Was there fraud? &c. The defendant had a right to have such issues tried by a jury. That right should not havo been cut off by the resort to summary process, under the pretext that the proceeding was incident to the administratorship, in which light it cannot properly be viewed.

It is therefore decreed, that the judgment of the district court be reversed, and that the rule be dismissed as in case of non-suit; the appellee paying costs in both courts.


text:
    A. Delamare v. E. P. Kennedy et al.
    Where the deputy of a notary has made the demand and served the notice of protest, it does not disqualify him from being a competent witness to the act of protest.
    The reason for the law requiring two witnesses to notarial acts was to create a check npon notaries so as to prevent their ante-dating their acts.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      F. Buscail, for plaintiff.

      C. Redmond and J. J. Lugenbuhl, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

McGinnis and Hynes, two of the defendants, are sued as endorsers of a promissory note made by Kennedy. At the trial of the cause the plaintiff, in order to prove demand of the maker, offered in evidence a notarial protest of the following tenor. “ United States of America. State of Louisiana. By this public instrument of protest, be it known, that, on this thirteenth day of April, in the year one thousand eight hundred and fifty, at the request of the cashier of, and the holder for the Louisiana State Bank of the original note, whereof a true copy is on the reverse hereof written; I, Achille Chiapella, notary public, dwelling in the city of New Orleans, duly commissioned, through Selim Magner, my lawful and duly sworn deputy, demanded payment for said note at the domicil of the maker thereof, corner of Elysian Fields and Morales streefs; I was answered by his wife, to whom I presented said note, that the said maker was not there and had left no funds to pay .the same. Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest as well against the drawer or maker of the said note as against all others whom it doth or may concern, for all damages, costs, charges, and interest, suffered or to be suffered for want of payment of the said note. This done and protested in the presence of Selim Magner and Edward GottschaUe. In testimony whereof, I grant these presents under may signature, and the impress of my seal of office, at the city of New Orleans, on the day and year first above written, [n. s.] A. Chuíeiia, Notary Public. Witnesses: E. Gottschauc; S. Magner.” “$400 00. New Orleans, January 10th, 1850. Ninety days after date, I promise to pay to the order of Mr. John McGinnis, the sum of four hundred dollars, value received. (Signed,) Edward P. Kennedy. (Endorsed,) John McGinnis, Thomas Haynes, A. Dedamare.” “ I, the undersigned notary, do hereby certify, that the parties to the note, whereof a true copy is embodied in the accompanying act of protest, have been duly notified of the protest thereof by letters to them by me written and addressed, dated on the day of said protest, and served on them respectively, this day, in the manner following, viz: through Edward Gottschalk, my lawful and duly sworn deputy, on John McGinnis, first endorser, personally; on Thomas Haynes, second endorser, left at his domicil on the levee, with his wife; on A. Delamare, third endorser, personally. In faith whereof, I have hereunto signed my name, together with Selim Magner and Edward Goilschalk, witnesses, at New Orleans, this 15th day of April, 1850, the 14th being a Sunday. (Signed,) S. Magner ; E. Gottschauc, A. Chia-PEitiA, notary public.” “I certify the foregoing to be a true copy of the original acton record in my office. New Orleans, this 12th June, 1850. A. Chiapella, Notary Public.”

To the reception of the document in evidence the defendants objected, and the district judge received it under reservation, and, eventually, in deciding the cause, rejected it, upon the ground “that the demand was made by Magner, the deputy, who was also one of the witness.” The judge’s reasons for so ruling are stated as follows: “The first section of the law of 1821, which makes the certificate of the notary proof of notice, requires the record to be made by the notary and two wil nesses. In practice it has been considered proof of demand as well as of notice. If Chiapella, the notary, had been one of these witnesses, it is very plain such a certificate would not be made by the notary and two witnesses. I cannot perceive any difference in principle where his deputy is acting. This law has always been strictly construed as derogating from the general rules of evidence. 3 N. S. 444. 4 N. S. 125. 5 N. S. 65, 513. 6 N. S. 394, 457. The protest must be rejected, and as there is no other proof of demand, the endorsers are discharged. There is, therefore, judgment in their favor.”

We do not concur in the opinion of the district judge; and as the matter is one of great practical importance, we have thought it proper to give at length the masons for our dissent.

For the proper consideration of this subject it is necessary to take a retrospective view of the legislation on the subject of protest of bills and notes, and of the reasons which probably influenced the lawgiver in that legislation. In doing so we are in a great measure repeating what was said by this court in the case of the Citizens' Bank v. Bry, 3d Ann. 631. As we then observed, the rules of evidence had been, in aid of commerce, so far relaxed as to allow a protest of a foreign bill of exchange, apparently under the seal of a notary public, and made abroad, to prove itself and establish the dishonor. But a notarial protest was not admitted in the case of a foreign bill, where the protest was made in the country in which it was offered. See Chesmer v. Noyes, 4 Campbell, 129, cited by Chitty, Bills, p. 643. But as commerce increased in this country, and the great mass of mercantille transactions came to be represented by bills of exchange and promissory notes, many of the States of this Union, for the purpose of facilitating commerce by rendering the remedy upon bills and notes convenient and safe, passed statutes clothing notaries public with authority to demand payment and give notice of protest of bills and notes, and making their notarial records of their acts, and certified copies of them, authentic evidence. Such was the spirit and intention of the two statutes of this State enacted in 1821 and 1827.

The first section of the act of 1821 is as follows : “Be it enacted, &c., that the notaries and parish judges shall keep a separate book, in which they shall transcribe and record, by order of date, all the protests by them made, with mention of the notices which they shall have given of the same to the drawers or endorsers thereof, together with the names of the said drawers or endorsers, the date of the said notices, and the manner in which they were served or forwarded to the said drawers and endorsers; which declarations, duly recorded under the signature of the said notary public or parish judge and two witnesses, shall be considered and received in all courts of this State as a legal proof of the said notices.”

The first section of the amendatory act of 1827 is as follows : “ Be it enacted, <fcc., that all notai'ies, or persons acting as such, are authorized in their protests of bills of exchange, promissory notes, or orders for the payment of money, to make mention of the demand made upon the drawer, acceptor, or person on whom such order or bill of exchange is drawn or given, and of the manner and circumstances of such demand ; and by certificate added to such protest, to state the manner in which any notices of protest to drawers, endorsers, or other persons interested, were served or forwarded; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all the matters therein stated.” Moreau’s Dig. vol. 1, pp. 93, 96.

It will be observed, that the amendatory statute of 1827 makes no express mention of witnesses; but it has been held that such attestation is necessary under both. See Gas Bank v. Nutall. 19 L. R. 449. And the practice of notaries has, for many years, been in accordance with that interpretation. For the purposes of the present inquiry, we will therefore assume that point as settled.

Under a fair interpretation of both statutes, it is obvious that these recorded declarations and certificates of notaries were efficacious as authentic evidence only so far as they declared or certified demands made, and notices given by themselves. Consequently, it was held in Raby v. Brown, 14 L. R. 247, that a notary’s certificate that notice was delivered by a third person, was insufficient to prove the liability of the endorser. “ If,” said the court, “the notary had certified the manner in which he had served the notices, it would have been good evidence under the statute; but he cannot certify what was done by others out of his presence.”

Subsequent to these enactments, in consequence partly of the natural enlargement of our commerce, and partly of the artificial extension of credit produced by the mulliplication of banks in this State, there was an enormous increase of negotiable paper. It was found that these statutes were inadequate to the full accomplishment of the end proposed. It became necessary to relieve notaries from the pressure of business, which at certain seasons of the year takes place in a great commercial city, where the collection of mercantile obligations is accomplished almost entirely through the banks. A bank’s notary would frequently find it impossible to make all the presentations and deliver all the notices personally. To remedy this inconvenience was unquestionably the motive of the statute of 1844, (p. 26,) which enacts as follows : “ That it shall be lawful for each and every notary public in New Orleans, to appoint one or more deputies to assist him in the making of protests and delivery of notices of protests of bills of exchange and promissory notes; provided, that each notary shall be personally responsible for the acts of each deputy employed by him ; and provided that each deputy shall take an oath faithfully to perform his duties as such before the judge of the parish in which he may be appointed ; and provided the certificate of notice or protest shall state by whom made or served.”

As we said in Bry's case, the former statutes were intended to establish a convenient and permanent means of proof: and the statute of 1844 was not intended to impair the beneficial provisions of the antecedent laws, but, preserving them, to fiicilitate the notaries in the performance of their duties. Why direct the form of the certificate, if, when made, it could not be used ?

It seems to us clear, that, under this statute, it is still the notary, and not his deputy, who is to declare, record, and certify how the demand was made and notice given ; and that the intention of the lawgiver was, to enable him to do what before he could not do, declare and certify what was done by another. To say that the certificate of notice or demand was intended to be made by the deputy and not by the notary, would conflict with the last clause of the statute, which directs that the certificate of notice or protest shall state by whom made or served. The obvious meaning is, that the notary shall state the name of the deputy by whom the demand was made or notice given. See also Citizens' Bank v. Bry, 3d Ann, 630.

Such being the intention of the law, we are unable to perceive how the fact that an individual has been employed by the notary as his deputy to make a demand or deliver a notice, disqualifies him from being an attesting witness to the notary’s declaration or certificate that such an act was done by that individual. The error of the counsel for the defendants is in confounding two things which are distinct: the act of making a demand or giving notice, and the recorded declaration or certificate that such an act has been done. When the deputy has made the demand and given the notices his function as deputy is at an end; and when the notary comes to declare or certify what has been done, we see no reason why he may not call the person who had acted as deputy to attest the declaration or certificate, as well as any other competent witness. The purpose of attestation is fully attained ; which purpose, as the court said in The Gas Bank v. Nutall, was to create a check upon the notary, and prevent him from ante-dating a certificate.

In conclusion, it is proper to observe, that we believe the practice of the notaries under the act of 1844 has, ever since its passage, uniformly been in substantial accordance with the form used by the notary in the present case. This contemporaneous construction of the statute by public officers acting under it, is certainly entitled to-consideration.

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


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    Succession of Felix Connolly.
    Where the claim of one as a creditor is denied, he has no right under the act of 13th of March, 1837, to have a judgment against an administrator for damages for not having deposited the funds of the succession in bank, and cannot disturb the administration in which those who are interested have acquiesced.
    APPEAL from the Second District Court of New Orleans, Lea,' J.

      Hoffman and Halsey, for appellant.

      C. Rosélius, for appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by Miles Judson, administrator of the succession of Felix Connolly, from a judgment of the Second District Court of New Orleans, by which he was dismissed from the office of administrator, and condemned to pay twenty per cent interest per annum on certain sums belonging to the succession, and received by him, and which he had not deposited in bank, according to the provisions of the act of March 13,1837, requiring administrators, executors', curators and syndics to deposit the funds collected by them in bank, and to keep a bank book in their official name, &c.

The proceedings in which this judgment was rendered were at the instance of John M. Bach and John Mitchell, as creditors of the succession, and commenced by a rule taken by them on the administrator for his removal, &c. under the statute.

In answer to the rule Judson, the administrator, pleaded by way of exception, that he had filed a tableau of distribution of the funds of the succession, and that neither Mitchell nor Bach were put down as creditors of the succession; and that they had severally filed oppositions to said tableau, claiming to be placed thereon as creditors, which oppositions were then pending and at issue. The respondent denied that they Were creditors, or had any interest in the succession ; and averred, that the proceedings thus instituted by Bach and Mitchell were taken for the sole purpose of hamissing him and embarrassing the administration of the succession; and concluded by invoking the decision of the court on the right of Bach and Mitchell to institute them until they have established their rights as creditors, or some definite interest in the succession.

The district judge overruled the exception ; and directed all the issues to be tried with the merits on the rule, considering the matters of the exception appertained to the merits. The defendant took his bill of exceptions, and reserved the questions presented by the exception. We have not been able to find in the voluminous record before us any judgment purporting to settle the amount for which Bach and Mitchell are creditors of the succession, or that they are at all creditors, except the judgment by which Judson, the administrator, has been condemned; from which the fact of their being creditors is considered as result¡ng. As the matter stands before us, their respective claims are still pending and at issue on their oppositions to the tableau of distribution. We think those issues ought to have been tried before Bach and Mitchell could be permitted to exercise the rights of creditors under the statute. The steps taken by them look very much like an attempt to coerce the acknowledgment of their claims, and if sanctioned would give to a stranger without interest in a succession a vexatious power of disturbing and embarrassing its administration.

The district judge thought that he had no discretion under the statute, according to the rules laid down by this court in the cases of Depas v. Riez, 2d Ann. 30, and of the Succession of Mann, 4th Ann. 28, when it was proved that the administration had not complied with its requisitions. The rights of the parties instituting the proceedings in those cases were not questioned. We must not be understood by this decision as abridging in any manner the control of courts over those having charge of successions or estates under administration. The appellees are attempting to exercise a remedy under ft statute highly penal, uutil their rights as creditors are established ; in the mode of litigation they have thought proper to select, they have no right to disturb the administration of the affairs of the succession in which others are interested, and in which the parties in interest acquiesce.

The judgment of the district court is therefore reversed ; and the rule taken by the appellees is discharged, with costs in both courts.


author: Rost, J. Preston, J.,

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    Sarah Ann Allen v. W. L. Campbell.
    Where a slave, who has been sold, was afflicted with one disease, and subsequently died of another which did not exist at the time of the sale, the warranty against redhibitory vices cannot be so extended as to embrace the second disease upon the ground that the first predisposed the slave to an attack of the second.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiff.

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

Rost, J.

We take the facts of this case as found by the district judge. Under the evidence and the act of 1834, we are bound to presume that the slave was affected with a diarrhoea at the time of the sale, but the immediate cause of his death was the cholera. The death was caused by a disease which did not ekist at the time of the sale, and the question is whether the defendant is liable on his warranty, because another disease which existed at that time predisposed the slave to the epidemic disease of which he died.

We think that there is nothing in the law which authorizes the warranty to be thus extended from one disease to another, and that, as bad faith on the part of the defendant is neither alleged nor shown, the question must be answered in the negative.

As diarrhoea predisposes to cholera, intemperance predisposes to disease of the lungs. It would be strange if after a slave died of consumption, the sale was rescinded because he was a drunkard when sold.

The plaintiff’s witnesses have misstated dates and evidently exaggerated the facts to her advantage, but even on their evidence, the judgment cannot, in the opinion of a majority of ’the court, be sustained.

It is ordered, adjudged and decreed, that the judgment of the court below be reversed, and that there be judgment in favor of the defendant, with costs in both courts.

Preston, J.,

dissenting. This is a suit to rescind the sale of a slave on account of redhibitory maladies. He was sold on the 15th February, 1849, and fully guaranteed against the vices and maladies prescribed by law, and to be sound of mind and body. He died six weeks afterwards.

It is alleged that he died of diarrhoea, and that he was affected with the disease at the time of the sale so as to be incurable. He had been brought info the State within less than eight months before the sale, and, under the statute of 2d of January, 1834, if the redhibitory malady discovered itself within fifteen days after the sale, it is presumed to have existed at the time of the sale.

Mr. Archer and Vaught both testify that the slave was severely afflicted with the disease in the month of February. The latter says, that having hired him a few days, he was sent home in a cart, being unable to work, or probably to walk; after a week he was sent back; but being unable to do the work of a hand, was again sent home. The former says, that in February he was so debilitated, that he could not help himself to his chamber. Dr. Wordan proves that the disease was a chronic diarrhoea and from the cankerous state of his bowels when he visited him in February, he thinks the disease must have lasted for some time. Dr. Jones visited him ; was satisfied that the disease was a diarrhoea of long standing, and prescribed accordingly.

Mrs. Morehouse proves that the slave was sick at the plaintiff’s house for some time; that to her knowledge he was attended three days by Dr. Preston; that she has seen a great many persons sick of the cholera, but never saw any one live so long with the cholera to die at last.

The defence is, that the slave was sound when sold, and died of the cholera. Mr. Blakeney, the agent of the defendant in selling the slave, gives it as his opinion that he was sound when sold. Dr. Bensadon saw him the day before he died in the collapsed state of the cholera, with not more than twelve or twenty-four hours of life in him.

I am of opinion that the weight of the testimony preponderates in favor of the plaintiff. The immediate cause of the slave’s death may have been cholera, but I think he was afflicted within less than fifteen days after the sale with a diarrhoea, which probably would have proved fatal under any circumstances, and was necessarily sp during the prevalence of the cholera to an extent almost epidemical.

The true view of the case is, that the disease existing at the time of the sale terminated in cholera, which it produced. Dr. Bensadon, defendant’s witness, says chronic diarrhoea, .or any disease of the bowels might terminate in cholera. The diarrhoea ought not to be considered a cause so remote from the death that the law will not join them.

All proper‘attendance and medical aid was furnished by the plaintiff to the slave; a physician set up with him a whole night. He was afflicted with a disease of the bowels from the day of the sale until his dissolution, and with the late Supreme Court in the case of Ory’s Syndic v. David, 9 L. R. 59, I consider a malady incurable, so far ns to authorize the redhibitory action when it baffles the efforts of regular medical aid and death ensues, notwithstanding this aid is promptly administered.

I think the plaintiff should recover the price paid for the slave, and that the judgment of the district court, should be affirmed, with costs.


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    Tiner & Conrey v. Steamer Bride and Owners.
    A party has no privilege upon a steamboat for tlie premium of insurance, where the policy shows the premium has been paid.
    Where the funds arising from a sale by the sheriff of a steamboat are to be distributed, a party who has not an interest in the fund arising from an attachment, or a privilege, or a judgment, has no right to interfere in the distribution.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      R. Mott, for appellant.

      Elmore, King, Wolfe, Singleton, Stockton and Steele, for appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by John Muir from a jugdment of the Fourth District Court, distributing among certain privileged creditors the proceeds of the steamer Bride, sold under a fieri facias issued on a judgment in favor of the appellees, Tiner Sf Conrey.

The appellant alleges that he has a privilege in the proceeds of the steamer for the sum of $541, inasmuch as it is due as a premium for the insurance on the steamer ; but by the policy of insurance the premium is acknowledged to have been paid. There are other objections which would be fatal to this claim for a privilege which it becomes not necessary to consider. See Lee v. His Creditors, 2d Ann. 601. Scott v. His Creditors, 3d Ann. 41.

The appellant took his remedy by third opposition in the district court. He has no right in the fund distributed. He has not proceeded by attachment, nor has he a privilege or a judgment against his debtors, and cannot contest its distribution. Code of Practice, 396 et seq.

It is therefore ordered, adjudged and decreed, that the appeal taken ip this case be dismissed, ap the costs of the appellants.


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    The State v. Judge of the Fifth Judicial District.
    The act of the 1st of June, 1846, providing for the trial of causes in which a district judge shall be recused by the district judge of an adjoining district, is not unconstitutional.
    The Supreme Court is bound to exercise every power incident to its appellate jurisdiction, or which may be necessary to enable it to exercise that jurisdiction ,• and for this purpose pjay award writs of man&amus to judges of the district courts to prevent the right of appeal being defeated.
    Thp question whether the Legislative branch of the Government has or has not transcended its powers, is the highest and most important act which the judiciary can be called upon to perform ; and no law ought to be held unconstitutional, and consequently void, unless its opposition to the Constitution be clear and free from doubt.
    On an application for a mandamus to the Judge of the Fifth Judicial District, upon the relation of Henry McCall et al.

      C. A. Johnson for the relators.
   The judgment of the court was pronounced by

Eustis, C. J.

An act of the Legislature, passed on the 1st of June, 1846, provided for the trial of cases in which the judges of the district court in which said cnuses are pending might be recused. It provides that the district judge shall refer such cases to the judge of an adjoining district, to whom the clerk of the court is bound to give notice that said cases are so referred; that the judge to whom said cases have been thus referred shall repair to the parish in which said cases are pending, and hold a special court for the trial of the same, and the judge is bound to order a special jury to be summoned for the trial of such causes if it be necessary. This act does not extend to the parish of New Orleans.

Henry Me Call and others have filed a petition in this court, in which they allege that they are parties to certain suits now pending, and at issue in the Fourth District Court for the parish of Ascension; that Albert Dujjield, the judge of said district court, had been engaged as counsel in said causes, and had recused himself in each of said causes, and that thereupon an order of court was entered referring said causes to the judge of the Sixth District Court — said Sixth District being adjacent to said Fourth District; that said judge of the Sixth District Court had been duly notified by the clerk of the Fourth District Court of the pendency of said suits in the parish of Ascension, of the recusation of said judge, and of the reference made of said suits, under the aet before recited, to him the said judge of the Sixth District. They further allege that it is the duty of the said judge to repair to said parish of Ascension, and to hold a session of the district court in the said parish for the trial of said several suits in which the said judge of the said Fourth District Court has recused himself; but that the said judge of the Sixth District refuses to comply with the notice and requisition thus made, and to hold a court in the said parish of Ascension for the trial of suits, by reason of which the petitioners are deprived of all means of having their suits adjudicated upon. They asked’for a rule on the judge of the Court of the Sixth District to show cause why a mandamus should not issue commanding him to hold a session of the District Court for the parish of Ascension for the trial of the said suits. The rule was granted at the relation of the petitioners as prayed for, and an answer has been filed by the district judge, in which his reasons for refusing-to try the suits are given at length.

The first inquiry to be made is, as to the power of this court to issue the mandamus commanding the district judge to proceed to try and determine these suits. It is conceded that appeals will lie in each of the suits to this court on final judgments rendered therein.

In the system of laws from which most of our remedial writs are derived, the writ of procedendo ad judicium issues out of the court of chancery, where the judges of any subordinate court delay the parties, for that they will not give judgment either on the one side or on the other, when they ought so to do. In such cases the writ of procedendo issues, commanding them in the king’s name to proceed to judgment, and upon further neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment returnable in the king’s bench or common pleas. 3d. Blackston’s Com. 110i To the same end our Code of Practice, art. 837, and 838, provides that where the judges of inferior courts are guilty of a denial of justice or unreasonable delay in pronouncing judgment on causes before them, and where they refuse or neglect any of the duties required of them by law, or which may enable the superior courts to exercise their appellate jurisdiction, a mandamus may be issued, commanding said judges to render justice and to perform the duties of their office according to law.

It is obvious, that by the refusal of the district judge to adjudicate upon these cases, the parties are subjected to a denial of justice, and consequently this court is ousted of its appeal, which the parties have severally a right to take on the decision of their cause adverse to them.

The jurisdiction of the Supreme Court under the Constitution of 1812 in civil cases, saving certain excepted cases, was the same as that of this court. 1 he jurisdiction of this court over cases of this class,, it is conceded, is appellate only; but it by no means follows that the court can only take cognizance of 'cases on formal appeals taken from final judgments. This court is bound to exercise every power incident to the appellate jurisdiction, under the forms established by legislative authority, which is necessary to enable it to exercise its appellate jurisdiction. In this case it can only be done by securing to the parties their right of appeal, which will be defeated unless final judgment be rendered in these suits. The State v. Bermudez, 14 L. R. 483.

In that case, the Supreme Court recommended the judge of the Court of Probates of New Orleans to take cognizance of an application for the appointment of an under-tutor, and to proceed to adjudicate thereupon. As far as our experience goes, we think the action of the Supreme Court in cases of this kind has been uniform since its establishment under the Constitution of 1812, ns well as the acquiescence of the district courts therein, without any exception.

It is contended that the statute requiring district judges to try cases of this class out of their respective districts is in conflict with the Constitution of 1845.

To determine on the constitutionality of laws, the question whether the legislative branch of the Government has or not transcended its powers, is the highest and most important act which the judiciary can be called upon to perform; and in the exercise of this responsible and delicate power, courts are bound to proceed with the greatest circumspection and deliberation. It has always been held that the presumption must always be in favor of the validity of laws, and that no law ought to be held unconstitutional, and consequently void and of no effect, unless its opposition to the Constitution be clear and free from doubt. It' must be conceded that there is no article of the Constitution with which this statute is clearly or directly in conflict; and its repugnancy to the Constitution is supported exclusively by implication. Without answering each argument of the respondent in detail, we think they will all be met by giving our views as to the judicial power as created by the Constitution.

The judicial power shall be vested in a Supreme Court, in district courts, and in justices of the peace. Art. 63. This certainly means that the whole judicial power — the power of determining all cases without exception or reserve- — is vested in these three classes of magistracy, and in establishing this power to provide for the determination of every possible case of injury, the Convention which framed the Constitution acted on the elementary principle in the English law, in reference to which our Constitutions in the United States have all been made, that every right when withheld must have a remedy, and eveiy wrong its proper redress.

The class of cases under consideration cannot be tried in the first instance by the Supreme Court nor by justices of the peace, according to express articles of the Constitution. Consequently they must be considered by the district court or not determined at all.

Judges of the district courts are selected from among the prominent members of the profession in the several districts. Having been actively engaged in practice previous to their appointment, the law has not considered it expedient that they should determine, as judges, the cases in which they have acted as counsel or attorney, and has provided for their trial by another judge. Judges have their private affairs: they are sometimes creditors, sometimes debtors, and are liable to have suits themselves, and to have an interest in matters of litigation. To deprive judges of all remedy for the enforcement of their rights, and to exempt them from all recourse by creditors, or by the State in cases of offences, would be a strange state of things under a government of laws. We do not think the Constitution has created this deplorable condition of the administration of justice, but has vested the power of determining this class of cases in the district courts.

The first. Legislature which assembled under the Constitution, upon whom the duty devolved of carrying into effect its provisions, by making the laws necessary for its operation, undertook by this statute to give full effect to the judicial power. They considered that the power must be exercised with reference to those great principles of common right upon which the Government is based, and upon which the security of society itself depends. No man shall be a judge in his own cause; and the Legislature provided for the trial of causes in which the judge was considered by the laws of the land incapacitated from sitting, by directing them to be tried by a judge of the adjoining'district, and required him to try such causes in the courts in which they were pending.

We have said there was nothing in the Constitution with which this statute conflicts, that is, there is no aiticle in the Constitution which restricts the judicial action of a district judge to the district for which he was appointed, or prohibits the Legislature from imposing on district judges duties to be performed out of their district. The restriction, it is said, results from the articles of the Constitution creating- the district courts. They are as follows:

Art. 75. The first Legislature assembled under this Constitution shall divide the State into judicial districts, which shall remain unchanged for six years, and be subject to re-organization every sixth year thereafter. The number of districts shall not be less than twelve nor more than twenty. For each district one judge, learned in the law, shall be appointed, except in the districts in which the cities of New Orleans and Lafayette are situated, in which the Legislature may establish as may district judges as the public interest may require.

Art. 76. Each of the said judges shall receive a salary to be fixed by law, which shall not be increased or diminished during his term of office, and shall never be less than two thousand five hundred dollars annually. He must be a citizen of the United States, over the age of thirty years, and have resided in the State for six years next preceding his appointment, and have practiced law therein for the space of five years.

Art. 77. The judges of the district courts shall hold their offices for the term of six years. The judges first appointed shall be divided by lot into three classes, as nearly equal as can be; and the term of office of the judges of the first class shall expire at the end of two years, and of the second class at the end of four years, and the third class at the end of six years.

Art. 78. The district courts shall have original jurisdiction in all civil cases when the amount in dispute exceeds fifty dollars, exclusive of interest. In all criminal cases, and in all matters connected with successions their jurisdiction shall be unlimited.

No such restriction necessarily results from these articles, nor do we think any can be inferred from the 95th article, which has also been relied upon as creating it. It provides that, all civil officers of the State at large shall reside within the State, and all district or parish officers within their districts or parishes, and shall keep their offices at such places therein as may be required by law. The article 115 renders it imperative on the Legislature to provide by I¡iw Í'01' a change of venue in civil and criminal cases. The Legislature accord»'«de the requisite iaw for this purpose. We think this article clearly refers to a class of cases other than those in which the judge is recused for one of the causes prescribed by law.

But there is an article of the Constitution which appears to us to remove any doubt on this subject. It pre-supposes the very case which is under consideration : that of additional duties or functions being imposed on the judges of the district court; and virtually recognizes the legislative power so to impose them. It provides that “no duties or functions shall ever be attached by law to the supreme or district court but such as are judicial. This seems to us to be the only restriction on the Legislature in carrying out the judicial power as to those courts, except those restrictions created in defining their jurisdiction.

We are of opinion that the statute, under consideration is not unconstitutional; on the contrary, that it is a necessary and proper mode of giving effect to the judicial powers vested by the Constitution, in order to secure to the citizen a fair and impartial trial before a judge without interest or undue bias ; and that it is the duty of the judge of the Sixth District to hold the court in the parish of Ascension, as required, and to hear and determine the coses of the several relators, to the end that if need there be an appeal may be taken to this court. We think the relators have made out cases in which, without the relief by them asked, they are left entirely without remedy, by reason of a denial of justice, and that it is the duty of this court to command the judge of the Sixth District to proceed to the trial of the several causes enumerated in the relators’ petition.

The rule is therefore made absolute.


text:
    Thomas Haynes v. Municipality Number Two.
    The act of 27th of May, 1846, providing that each of the municipalities should pay the expense ot repairing, taking care of and guarding the prison of the city of New Orleans, is not unconstitutional upon the ground that it impairs the previous contract between the Police Jury and the Municipality' Number One
    APPEAL from the Second District Court of New Orleans, Lea, J.

      C. Redmond, for plaintiff.

      R. Hunt, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment of the Court of the Second District of New Orleans, condemning the Second Municipality to pay a pro rala contribution to a bill for repairs of the parish prison.

The plaintiff made the repairs, and it does not appear to be any objection to the amount of his charges. It is admitted that the repairs are such as it is incumbent on an owner to make under the articles of the code.

This court determined in the case of the Municipality Number One v. The General Council of the City of New Orleans, (No. 1822, 1847, not reported,) that the defendants as the successors of the late, Police Jury of New Orleans, were liable to the Municipality Number One for certain arrears of rent of said prison, under a certain contract made between the Old Corporation of New Orleans and the Police Jury, previous to the construction of the prison; and that by said contract the case presented the relations of landlord and tenant between the municipality and the police jury : the former being the owner of the property, and the latter having the use and occupation for a certain annual rent.

We are satisfied that this construction of the contract was correct. It related exclusively to the right of the municipality to recover the arrears of rent, but did not purport to affect any ultimate rights which the parties might have under tile contract.

The act to abolish the Police Jury in the city of New Orleans (Laws of 1846, No. 130,) provides in the fifth section, among other things, that each of the municipalities shall pay the expense of repairing, taking care of and guarding the prison of the city of New Orleans, and their respective workhouses ; and it is intended that this act is unconstitutional, inasmuch as it impairs or changes the obligations to the orignal contract under which the prison is now rented and occupied.

The three municipalities are bound to pay the rent of the prison in the place and stead of the police jury, which has ceased to exist. The repairs being such as the owner was bound to make, their expediency and the necessity for making them cannot be questioned. We do not think the unconstitutionality of the act is in question in this suit. The repairs made may be deducted from the annual rent, under the 2664 of the code.

It is a matter of public interest that prisons should always be kept in proper repair. The contract for the repairs was a lawful one, by which the municipality was bound. The amount must therefore be paid, and the amount deducted or not from the suit, according to the original contract, a matter which we are not called upon to determine in this case. We do not consider the law of 1846 as affecting in any instance this question.

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


text:
    Municipality Number One v. General Council of New Orleans.

    A contract by which a party is to pay an annual rent of six per cent on the cost of a building, with the privilege of becoming the owner on paying the price, creates the relation of landlord and tenant.
    The parish prison being situated in the First Municipality, became the property of thut municipality by the act of March 8, 1836.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      C. Roselius, for plaintiff.

      W. W. King, for defendants.

       This case was decided in June, 1847, and having been omitted in the Reports of that year, is inserted here at the request of the Chief Justice.

   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for arrears of rent alleged to be due by the defendants, as the successors of the late Police Jury of the parish of Orleans, for the use and occupation of the parish prison.

On the division of the property of the city of New Orleans in 1836, the real properly, of whatever description or kind, and the revenues arising therefrom, then vested in the mayor, aldermen and inhabitants of the city, were vested in the respective municipalities in which the property should be situated. The parish prison being in the First Municipality, it and its revenues became vested f , ‘ , ° . . , . , ,. . , in that body. And so the respective parties considered it, and accordingly Irom the completion of the prison, which was not finished at the time of the division in 1836, the police jury has used the prison under a written contract and has made payments on account of the rent even since the institution of the present suit.

It is contended that the rights of the Old Corporation in the prisons and land on which they were erected, did not pass absolutely to the First Municipality, but were modified by a contract which had been made before the division with the police jury in relation to them.

It was the duty of the police jury to provide a good and sufficient jail for the prisoners of the State, and the former corporation being about to build a prison for its purposes, it was agreed with the police jury that another should be built adjacent to it for the use of the parish of Orleans, of which the police jury was the representative.

Of the nature of this contract there can be no question ; the police jury was to pay an annual rent of six per cent on the cost of the parish jail and the lot, with the privilege of becoming the owner on paying the capital. There are provisions in the contract which are accidental and do not in any respect change its character, which is that of letting and hiring, with a privilege of the lessee becoming, on a certain contingency, the owner.

. There have been various payments made in furtherance of the contract; indeed it has been in execution ever since the possession was taken of the jail by the parish authorities. It is said that all has been done in error and under a mistake of the rights of the parties under the contract.

In this opinion we have not been able to concur, and are satisfied that the property belongs of right to the First Municipality under the act of 1836, and that the contract as it now stands creates the relation of landlord and tenant, with the accessory rights of the latter, on the performance of the condition on which they depend.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be amended, and that there be judgment in favor of the plaintiff against the defendant for the sum often thousand five hundred and seventy eight dollars and forty-eight cents, with interest from judicial demand, to wit, the 2d day of September, 1846, until paid; the plaintiff' paying the costs of this appeal.


text:
    Executors of Compton v. Compton.

       This case is reported at p. 615 of this volume. Since it was reported the reporter has been handed the above opinion of Slidell, J., with a request that it be inserted. This is the explanation of its not appearing in its proper place. 'w. w. IÍ.

   In this case,

Slidell, J.

thought that interest could be recovered on the interest notes, this being a contract of sale.


author: Miller, J.

text:
    No. 12,716.
    State ex rel. Lawrence L. Lewis vs. Louis Arnauld, Recorder.
    A party can not be arrested and kept in prison five days merely on an afiivavit that he is dangerous and suspicious, or that he has violated an ordinance embrac- * ing numerous offences with no specification of the offence intended to be charged. Horr & Bemiss Municipal Ordinances, Secs. 165, 172, 173.
    This court, by its writs of certiorari and prohibition directed to the committing magistrate, has the power to order the release of the party from such imprisonment. Const,, Art. 90.
    0 N APPLICATION for writs of Mandamus, Prohibition and tiorari. Cer-

      John C. WicJcliffe for Relator.
    Submitted on briefs January 3, 1898.
    Opinion handed down January 4, 1898.
   The opinion of the court was delivered by

Miller, J.

The relator seeks the writs of certiorari and prohibition to arrest further proceedings in the prosecution against him in the Sixth Recorder’s Court for an alleged violation of the Ordinance No. 5046, Administration Series, of the Common Council of this city.

The affidavit charges the relator with the violation of the Ordinance 5046, relative to dangerous and suspicious characters. The ordinance referred to in the affidavit, it is conceded, is grouped in paragraphs 3054, 3055 and 3056, Flynn’s Digest. These paragraphs specify various offences — living without working, though able to maintain himself, and other forms of vagrancy; loitering in front of churches during services therein, remaining in front of theatres or other places of public amusement; loitering on the public streets; habitual drunkenness, and other transgressions of public order or decency.

While the proceedings before the recorders’ courts are not subjected to the rules in respect to the structure of indictments or informations for crime, still, it is essential that the affidavit before the committing magistrate should be reasonably certain as to the offence intended to be charged. “ Neither the strictness of the common law requirements or the technical accuracy of indictments need be observed. Still, a complete statement of the offence must be made, and is not satisfied by the simple allegation that defendant has violated a certain ordinance.” Horr & Bemiss Municipal Ordinances dealing with the procedure generally for violations of municipal ordinances, Secs. 165, 172, 173.

In this case the relator has been arrested and imprisoned for over a week on an affidavit which simply charges a violation of “ Ordinance No. 5046 relative to dangerous and suspicious characters,” giving no indication whatever which of the numerous offences embraced in the ordinance is intended to be charged. “ Dangerous and suspicious ” used by the affiant does not occur in the ordinance, and the conclusion of the officer making the arrest that the party is “ dangerous and suspicious,” is not the equivalent of the statement of any offence known to the law. We can not reveiw the question of the refusal of the recorder to accept the bail offered by the relator, but on the other ground that the relator has been imprisoned for over a week merely on an affidavit that he is “ dangerous and suspicious,” it seems to us, the imprisonment is beyond the jurisdiction of the recorder.

It is therefore ordered, adjudged and decreed that the Sixth Recorder’s Court be and it is hereby prohibited from any further proceedings on the affidavit against the- relator, and that he be released from custody on said charge.


author: Breaux, J.

text:
    No. 12,635.
    G. W. Sentell & Co. vs. J. E. Hewitt et als.
    There was not a partnership liability o£ stockholders even if, as contended by-plaintiffs, the corporation of which the defendants were stockholders was a defective and illegal corporation, for the reason that the plaintiffs had notice of the stipulation to secure limited liability of the stockholders and contracted their debt with reference to the limited liability of three of the defendant stockholders.
    Plaintiffs carried defendants’ policitation into effect and received actual benefits therefrom.
    The law points outno special form of acceptance of a policitation. Performance of the condition upon which the offer is made and benefits derived from the transaction are acceptance enough, and concludes the one accepting from recovering more than the limited liability proposed when the proposal was made, and to which no objection was ever made by plaintiffs while it was being carried out.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      J. D. Wilkinson and Wm. Goss for Plaintiffs, Appellants.

      Elam & Egan and Lee & Liverman for Defendants, Appellees.
    Argued and submitted December 17, 1897.
    Opinion handed down January 10, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sued the defendants for balance of an account for goods sold to the late firm of J. E. Hewitt & Co.

Plaintiffs alleged that the firm had not been legally incorporated and that in conseqnenee the members of the firm were in solido indebted for the firm’s debts, and that they were not as they claimed indebted as a corporation.

The defendants interposed the pleas of misjoinder, of estoppel and of prescription.

The pleas of prescription and misjoinder were overruled, and the plea of estoppel was referred to the merits. In their answer three of the defendants severed from J. E. Hewitt, their co-defendant. They alleged in their answer that there was an agreement entered into between Hewitt and plaintiffs giviag consent to a limited liability in so far as they were concerned, as expressed in the charter of their company, which had been submitted to them by Hewitt in order to secure the limited liability.

Defendants’ plea of misjoinder was based on an asserted valid incorporation of defendants’ firm. In that case it followed (they pleaded) that the company limited alone was to be sued, and not the shareholders of the company personally.

The plea of estoppel was grounded upon the alleged assistance and participation of plaintiffs in the organization of the J. E. Hewitt & Oo., Limited.

The defendants averred their dealings with the company; and their (plaintiffs’) profits resulting from their common business. The act of incorporation of the J. E. Hewitt & Oo., Limited, now assailed by plaintiffs, sets forth properly the name of the corporation, also its domicile; the period for which organized, and during which it was to have and enjoy succession.

The object in forming the company was stated. It was authorized to have a corporate seal; to contract, sue and be sued, to hold real estate, to mortgage and accept mortgage, and do all other needful acts.

In the charter it was recited that the capital stock was not to exceed twenty thousand dollars, and the amount of the shares was fixed at five hundred dollars each; the election of a general manager was left to the stockholders, upon whom citations or other legal processes were to be served. This charter was duly made public and it was duly inscribed in the clerk’s office. The objection to the charter is that no subscription list of shareholders was ever made or, at any rate, that none was ever recorded.

In support of their pleas defendants introduced several letters in evidence, and among them one written in the latter part of 1888 to plaintiffs by J. B. Hewitt, enclosing a copy of the charter and informing the plaintiffs that he had seven thousand dollars paid in, and that he was investing that amount for the corporation in paper secured by mortgage which he would forward and deposit with plaintiffs under their agreement.

In another letter also in evidence, written a few days after the one just noted, the writer, J. E. Hewitt, requested the plaintiffs to open an account with J. E. Hewitt & Co., Limited. They complied. He also in this letter to them represented that in transforming the firm of J. E. Hewitt & Co. into a corporation limited, he did not intend to avoid personal responsibility and he expressly waived all limitation of responsibility and wrote that he would hold himself bound for all debts of the corporation limited. He added in the letter, “ Of course this does not apply to my associates, or to any other creditors except yourselves. By limiting their liability to what they put in, I am able to handle considerable of my friends’ money at a low rate óf interest, and while I will secure you from loss with it by investing it in small but safe loans I will build up an almost invincible support and enable me to control the trade for the Farmers’ Supply Company and the cotton for you.

“ The supply company is doing a rattling business and small stock as yet, but I think its trade will be immense. It sells for cash and turns the cash over to me every Saturday night. I am determined to make the supply company and allow shipments a complete sue - cess and profitable to you and all parties concerned.”

Judgment was rendered against J. B. Hewitt for the amount claimed. The demand against the other defendants was rejected. Plaintiffs’ appeal from the judgment rejecting their demand against the defendants other than Hewitt.

Wé gather from the evidence that the firm of J. E. Hewitt & Co. secured from the plaintiff money with which the latter in a manner pursued a banking business. In accepting pledges for money and supplies advanced on crops, the borrower expressly agreed to ship the cotton pledged to plaintiff. As we interpret the facts, the firm of Hewitt & Co., Limited, was bound, as a matter of good faith, to ship all the cotton it purchased with funds advanced by plaintiff and all the cotton it controlled to plaintiffs. The result was that many thousand bales of cotton were shipped through the management of J. E. Hewitt & Co. to Sentell & Co. Át the beginning of the discussion we will take it for granted that no one will deny that both the plaintiffs and the firm of J. E. Hewitt & Co., Limited, were free agents and capable of contracting.

The extent the defendants, if they were partners, could limit their liability is one of the questions before us for determination.

A creditor of a partnership, it will not be denied, may release one of the members of a partnership with the consent of the others, and without thereby discharging the latter.

That proposition being settled, we have not succeeded in discovering a good reason why a partner may not, as in this case, offer to hold himself bound to creditors accepting for the whole of the liability of the partnership to be incurred for loans or advances, with the understanding that the liability of his partner shall be taken as limited. The current of authorities sustains the view that it is possible to thus contract.

There is here no question of private stipulation between the partners. The plaintiffs h'ad more ■ than a distinct notice of a limit of liability. It was a stipulation. The promoter of the corporation or partnership, as the case may have been, made application directly to plaintiff for the wherewith to carry out his plan, and stated that part of the amount he needed, could only be obtained on the condition of limited liability contained in the charter, which he, however, waived to the extent that he was personally concerned. The condition was a possible condition and the waiver a possible waiver. There was nothing in the stipulation in violation of a prohibitory law or repugnant to public policy or morals.

“There is certainly nothing illegal in a creditor agreeing to such a limited responsibility as a qualification or limitation of his contract.” Story on Partnership, par. 165.

The civilians of old affirmed that members of partnership may limit their responsibility. Cooper’s Justinian.

Such stipulations have always been looked ppon as possible. 3d .Kent, par. 26.

As relates to questions of usurping and attempting to exercise the proper functions of a corporation, which the Legislature or government alone is competent to establish or the wanton disregard of the forms pointed out by law (Story on Partnership, par. -), while it is claimed that there was failure to organize properly under the law we do not understand that plaintiffs question the good faith of Hewitt & Oo., Limited, in their attempt to effect a legal organization.

Again, limited' liability clauses such as that here can have no effect as relates to the interest of strangers.

But in the case before us for determination, not only plaintiffs had notice of the stipulation entered into with the view of limiting personal responsibility, but they in addition, as we gather from the facts, carried defendants’ polieitation into effect, and during several years continuously derived therefrom income and profit.

From this point the question resolves itself into one of acceptance on the part of plaintiffs.

With reference to acceptance vel non the law points out no particular form of acceptance. Laurent, upon that subject, gives effect to the maxim: Eadem .vis est taeite atque expressi concensus. Vol. 15, par. 482.

The views of Baudry-Laeantinerie are similar, par. 798, Vol. 2.

A decision of this court, in our judgment, bears upon the point.

“ A polieitation becomes often the basis of a contract. It requires, in order to be ripened into a perfect contract, the acceptance of the party to whom it is made. The offer, it was held, had been accepted, the one accepting having actually assumed to do the work offered upon stated conditions. Seal vs. Erwin, 2 Martin, N. S. 246.

Here plaintiffs did not accept the terms offered, by doing work offered to them to be done, but by advancing money, the representative of work or quid pro quo for work. Moreover, they received actual benefits from the effects of which, it does appear to us, they can now be released without its being contrary to the plainest principles of reason and justice. We are well aware that stipulations of the kind here discussed are not looked upon favorably, and that to sustain them they require that the creditor shall have more than ordinary notice. We are of the opinion, after having given our most attentive consideration to the question, that the case here comes strictly within the plain intent, terms and meaning of the exception, for the reason that polieitation had been in effect accepted and acted upon by all parties concerned.

The counsel for plaintiff, in their brief, have made clear and fair abbreviations of the following decisions:

Lynch vs. Portlewaite, 7 M. 70; Lambert vs. Voliter, 6 R. 128; Cooley vs. Broad, 29 An. 345, in which, as we appreciate those decisions, it was held that mere notice to the creditors was not sufficient to sustain a claim of limited liability of partners.

In the case before us for decision, we have found that there was considerably more than mere notice, and in consequence, in our view, decisions regarding the effect of notice have not the bearing claimed by counsel.

The conclusion at which we have arrived regarding plaintiff’s acceptance of the defendant’s business, with attending conditions, renders it unnecessary for us to pass upon the other points raised in the case.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.


author: Blanchard, J.

text:
    No. 12,623.
    State of Louisiana vs. Gustave Moreau et als.
    This court, not [informed of the evidence adduced on behalf of the defense must necessarily rely upon the statement of the trial judge that testimony for the State offered in rebuttal is of that character.
    Not the province of this court to reverse juries in criminal causes on questions of fact.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      John N. Ogden for Defendants, Appellants.
    Submitted on briefs December 18, 1897,
    Opinion handed down December 28, 1897.
    Rehearing refused January 24, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused, Gustave Moreau and Cleophas Moreau, were indicted jointly for the larceny of a cow, convicted and sentenced to penal servitude for twelve and eighteen months respectively.

A witness for the State, called to the stand in rebuttal, was asked: “ Can you make the brand with which the cow was branded?

Objection was raised that this was not evidence in rebuttal.

The District Judge, in overruling the objection, states the answer sought to be elicited by the inquiry was in rebuttal. This court, not informed of the evidence adduced on behalf of the defense, must necessarily rely upon the declaration of the trial judge that testimony of the State offered in rebuttal was of that character.

However, considering the statement in the bill of exceptions, we are of opinion that the answer sought by the question was clearly in rebuttal, and that it was not amenable to the further objection, urged by the defense, that it was not the best evidence of the fact sought to be established.

Nor can we disturb the verdict on the grounds set up in the bill of exceptions reserved to the ruling of the court below, denying the motion for new trial. These grounds were that the verdict was contrary to the law and the evidence. The trial judge was jamiliar with the facts of the case; he had seen and heard thewitnesses.

As has been repeatedly held, this court will not interfere with such rulings, unless manifestly erroneous. We repeat this with some emphasis. The facts and circumstances set up in the lengthy motion for new trial were urged as defense, and were all before the jury, who, after weighing the same, brought in a verdict of guilty.

It is not our province to reverse juries, in criminal causes, on questions of fact, and no question of law appears in regard to .which there was error on the trial below.

Judgment affirmed.


author: Watkins, J.

text:
    No. 12,624.
    State of Louisiana vs. Mack Lee.
    Act 84 of 1891 is constitutional and valid to the extent that it provides that the State may coerce the trial of the cause by making the admissionithat if the witness named in the affidavit for a continuance were present he would testify to the truth of the statement contained therein.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Chas. W. DuRoy for Defendant, Appellant.
    Submitted on briefs December 4, 1897.
    Opinion handed down December 28, 1897.
    Rehearing refused January 10, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of shooting with intent to commit murder, found guilty of shooting with intent to kill, and sentenced to imprisonment in the penitentiary for a term of two years, and from that judgment he prosecutes this appeal.

The only ground on which he seeks relief is the alleged unconstitutionality of Act 84 of 1894.

The record discloses that the defendant’s counsel applied for a continuance on account of the absence of a material witness, and that the trial judge refused to grant the application because the State offered to admit that if said witness were present she would . testify as stated in the affidavit for continuance, agreeably to the provision of Act 84 of 1894.”

The contention of defendant’s counsel is that he hás been deprived of a constitutional right by being forced to trial without the personal presence of his material witness.

It is conceded on the other side that the defendant used due diligence to obtain the attendance of said witness and that his testimony was competent and material to his defence.

The proposition insisted upon by defendant’s counsel is that the Constitution guarantees the right to an accused to have the personal presence of his witnesses and that the State must admit the truth of the statement made by the accused in his application for a continuance in order to compel him to go to trial without his witnesses being present.

Inasmuch as Act 84 of 1894 provides that in such case it shall only be necessary for the State to admit that the witness if present would testify to the facts which are set forth in the affidavit for contin - nance, counsel for accused assign the unconstitutionality of said act as being in contravention of Arts, eight (8) and nine (9) of the Constitution.

The provisions of the statute are plain and unambiguous and must control decisions of this court, unless same are found to be in conflict with the precepts of the Constitution.

And the unconstitutionality of the statute being the ground assigned for the defendants’ relief, our decision must be restricted to it alone, and consequently no useful purpose will be subserved by the citation of authority from, text-books or that of adjudicated cases, with repect to the general principles of the criminal law — the provision of our statute controlling the principles of the common law.

Article 8 of the Constitution provides as follows, viz. :

“ In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation; fo be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to defend himself and to have the assistance of counsel, and to have the right to challenge jurors peremptorily, the number of challenges to be fixed by statute (Our italics.)

That provision of the Constitution guarantees to an accused person the right “to be confronted with the witnesses against him;” but similar provision guaranteeing the presence of witnesses to be heard in his favor seems to have been omitted ex industria.

Inasmuch as the unconstitutionality of the aforesaid statute rests upon its supposed incompatibility with the article cited, the contention is manifestly groundless.

A similar question arose in State vs. Pruett, 49 An. 283, and thereupon the court speaking through Chief Justice Nicholls, after citing the authorities, said :

“ We are unwilling to pass upon the constitutionality of a statute unless imperatively required to do so. No such necessity exists in the present case. We content ourselves with saying, for the present, that the law is at least in derogation of common right, and that recourse to it should be avoided, if possible.”

But the contingency has arisen in this case rendering a decision of the question of the uneonstitutionality of that, statute necessary.

It is squarely presented. It was presented to the trial judge, and he maintained the constitutionality of the statute; and the accused retained a bill of exceptions to his ruling, and upon that bill he rests his claim to relief, exclusively.

Applying the statute to the constitutional test, we have reached the conclusion that it is valid in so far at least as the objection which the counsel of the accused has urged against it; and that is sufficient for us to decide in this ease.

Judgment affirmed.