author: Vooehies, J. (Slidell, 0. J., absent.)

text:
    M. A. Dawson v. M. V. Babin et al.
    The following agreement is sufficient as a confession to authorize a judgment against the obligors and dispenses with service of citation and petition: “We waive citation and service of petition, and confess judgment according to the prayer of the petition of M. Y Babin within, for the sum of three hundred and thirty-five dollars and ninety-two cents, with interest thereon at the rate of eight per cent, per annum, from the 1st of January, 1849, until paid, and costs of suit, with stay of execution until the 1st of December, 1849. March 16, 1849. (Signed,) James 0. Dawson, Mart Ann Dawson ”
    The wife is bound to support the household expenses, and the expenses of the education of their children alone, if her husband has nothing. 0. 0. 2409.
    APPEAL from the District Court of East Baton Rouge, Burle, 5,

      A. M. Bunn, for plaintiff and appellant.

      A. S. Serrón filed the answer for defendant,
    but the record does not show what counsel appeared on behalf of defendant in the Supreme Court.
   Vooehies, J.

(Slidell, 0. J., absent.)

This is an action to annul a judgment obtained by the defendant against the plaintiff.

The plaintiff alleges that she was induced through ignorance of her legal rights to sign the following writing, viz: “We waive citation and service of petition, and confess judgment according to the prayer of the petition of M. V. Bcibin within, for the sum of three hundred and thirty-five dollars and ninety-two cents, with interest thereon at the rate of eight per cent per an-num, from the 1st of January, 1849, until paid, and costs of suit, with stay of execution until the 1st of December, 1849. March 16th, 1849.

(Signed,)

“James C. Dawson,

“ Mary Ann Dawson.

“Signed in presence of

“Enos Hebert.”

That on the 16th of April, 1850, a judgment was rendered thereon, condemning her and her husband in solido, to pay said Babin the sum and interest as stated, and cost of suit. She avers that she signed said instrument as security for her husband for a debt contracted by him for things which he was bound to furnish to his family; and that said judgment, so far as it relates to her, is consequently null. On the further allegation that her property was seized and advertised for sale by the Sheriff, under an execution issued thereon, she obtained a writ of injunction. Her petition concludes with a prayer for the nullity of the judgment, and that her injunction be made perpetual. She is appellant from a judgment of the District Court rendered in favor of the defendant, dissolving her injunction with damages.

The record shows, that on the 27th of Januaiy, 1845, the plaintiff obtained a judgment of separation of property from her husband, grounded on his insolvency.

The nature of the demand, which formed the basis of the judgment sought to be annulled, is stated in the suit of Babin, to be for goods, wares and mei--cbandize, sold and delivered by him to the plaintiff in the year 1848, for the use of her plantation. Enos Sebert, the only witness who appears to have been examined in this case, testified that the plaintiff herself purchased more than half of the articles set forth in the account on which judgment was rendered in favor of Babin.

On the merits, it is extremely doubtful whether the plaintiff would be entitled to any relief at our hands. It may be fairly inferred from the evidence, that she has the exclusive administration of her separate property, and that her husband is insolvent. “ When the wife has obtained a separation of property, she must contribute in proportion to her fortune and to that of her husband, both to the household expenses and to the expenses of the education of their children. She is bound to support those expenses alone, if there remains nothing to her husband.’” C. 0. 2409. One of the modes prescribed by law in which definitive judgments may he revised, set aside, or reversed, is, by action of nullity. The causes for which the nullity of a definitive judgment may be demanded, are two fold ; those that are relative to the form of proceeding, and those that appertain to the merits of the question tried.” C. P. 605. In relation to the merits, it is clear that the causes urged by the appellant, are insufficient to authorize the revision or reversal of the judgment in this form of action. If available, it could only have been on appeal from the judgment. 0. P. 607, 609.

The other grounds on which the appellant relies, are relative to the form of proceeding, and evidently intended to meet the provisions of Article 605, section 4, of the Code of Practice, in these words: “ If the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him.” But the facts of this case do not, in our opinion, justify such a conclusion. We consider as untenable, the propositions assumed by the appellant’s counsel, that the written agreement in question was insufficient as a confession to authorize the judgment, and as being only intended in its effect to dispense with service of citation and petition; and that ua judgment by confession must be evidenced by authentic proof, either expressed in open court or before a notary and two witnesses.” In support of the last proposition, the counsel has not favored us with any authority.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    J. Fulda v. L. A. Caldwell and S. Gouley, her Husband.
    The interchange of opprobrious epithets, and mutual vituperation and abuse, will justify a Judge in approving a verdict for the defendant, although the slanderous words were proved ; and a verdict rendered in such a case will not be disturbed by the Supreme Court.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Lugenbuhl, for plaintiff and appellant. W. 3. Sunt, for defendants.
   Campbell, J.

This is an action of slander. The defence is the general denial. The slanderous words were proved as charged; yet the jury who tried the case, rendered a verdict in favor of the defendants, which verdict was approved by the District Judge.

The parties to this suit, are evidently persons, coarse and indecorous in their behavior; and the jury no doubt regarded the opprobrious epithets so lavishly bestowed by both of them on each other, as mere mutual vituperation and abuse. Under these circumstances, we will not disturb their verdict.

It is not fit that such cases as this record presents, should be brought before the courts. Better far would it have been for the credit of the parties and the cause of justice, if the matters disclosed had been permitted to remain only in the knowledge of the bye-standers, than .to have blazoned them on the records of the tribunals.

Judgment affirmed.


author: Slidell, C. J.

text:
    Davis & Co. v. D. P. Bastos—J. M. Del Campo, Appellant.
    A notice of seizure under attachment, served on a garnishee who has possession of a bill of exchange belonging to the debtor, and against which a third .party has equities, does not destroy those equities. The seizure affects the interest which the defendant has in the bill, and nothing more. The seizing creditor does not acquire such a right in the bill as the debtor might have conveyed to an endorsee for value anti without notice.
    APPEAL from the Third District Court of New .Orleans, Kennedy, J.

      Hunton <& Bradford, for plaintiff. 0- Bufour, for Bel Oampo, appellant.
   Slidell, C. J.

The bill of Wide & Go, for $5000, accepted by Gramer & Go., was held by BarrelU, the garnishee, for account of Bastos; and when Bel Oampo caused a notice of seizure to be served upon BarrelU, under a writ of attachment against Bastos, he may be considered, for the purposes of the present inquiry, as having attached in Bctrrelli’s hands the interest of Bastos in the hill of exchange, but nothing more. He is not to be considered as thereby acquiring such a right in the bill, as would have been acquired by one who had received it from Bastos for value and without notice. But as between Banis & Go. and Bastos., the former had a right to stop, by their injunction suit, the payment by the acceptor to Bastos, to the extent of $1300, to which amount the consideration for which the bill was given to Bastos had failed. The evidence clearly proves that Brnis & Go. got Wide & Go. to give the bill. It was drawn at the instance of Banis <& Go., and for their account, and the pcyee, Gonzalez, was the agent of Bastos. There was a clear equity in favor of Ba-nis & Go. to stop, by injunction, the payment by the acceptors to Bastos, to the amount for which the consideration had failed, and this, too, under circumstances of misrepresentation and bad faith. This view renders it unnecessary to consider the technical objections made to the irregularity of Bel Ga/mpo's attachment.

Judgment affirmed, with costs.


author: Ogden, J.

text:
    McRae, Coffman & Co. v. N. Austin.—S. W. Taylor, Intervenor.
    Where property attached has been bonded, it will be too late for third persons to intervene and claim either, the property itself or a privilege on it.
    A garnishee who has a privilege on property, may state the nature of it in his answers to the interrogatories, and thus protect his privilege, without resorting to the remedy by intervention.
    APPEAL from the Pifth District Court of New Orleans, Livingston, J.

      T. W. Waul, for plaintiffs. L. Spring, for defendants. Durant & Hor-ner, for intervenors.
   Ogden, J.

(Slidell, O. J., and Voohies, J„ absent.)

The intervenor has appealed from the judgment of the court below dismissing his intervention under the following circumstances: The plaintiffs brought suit by attachment against the defendant, who is a non resident, and attached cotton on which the intervenor claims a privilege, on the ground that the defendant was indebted to him in a large balance of account, and that previous to the attachment being levied, the bill of lading for the cotton had been received by them, and that the cotton attached, had in fact been received into their possession, previous to the attachment. The court below rejected the evidence offered by the inter-venor in support of his demand, on the ground that previous to the petition of intervention being filed, the cotton had been bonded by the intervenor, acting in the name of the defendant as principal in the bond and binding himself with another as surety. This was considered by the court as taking the property from its control, and having no ground for an intervention by a third party claiming a privilege on the property attached. This opinion of the Judge of the court below, is undoubtedly correct and is supported by the decisions in Beal v. Alexander, 1st Robinson 278, and Dorr et al. v. Kershaw et al., 18th L. R. 57. The bond is only a substitute for the property as between the parties to the attachment; and it is too late for third persons to intervene to claim the property itself or a privilege on it, after the attachment has been dissolved and the property released. The intervenor had been made garnishee, and if in his answers to the interogatories he had set up his claim to a privilege on the cotton, and shown that it had come into his possession previous to its seizure by the Sheriff, his privilege would have been protected without his resorting to the remedy by intervention. As however, he did not assert such privilege in the character of garnishee, it was too late to intervene in the suit to claim a privilege, after the cotton had been bonded by his becoming security for the defendant, to satisfy whatever judgment might be rendered against him. The property attached belonged to the defendant and the court therefore was seized with jurisdiction, notwithstanding there may have been a privilege existing in favor of a third party, which if timely asserted would have made it fruitless for the plaintiff to proceed any further with the suit. It would have been different, if by the answers of the garnishee, it had been shown that a privilege existed in his favor, and for on an amount which would absord the proceeds of the cotton, unless successfully traversed, the answers of the garnishee under these circumstances, would have left the court without jurisdiction as to the defendant, there being in fact no property upon which its jurisdiction could be based.

The intervenor offered evidence to prove that the Sheriff had erroneously returned that the cotton was bonded by him, as agent for the defendant, and that it was in fact the intention of the intervenor to bond for his own interest, as having a privilege on the cotton, then in his possession, and also to prove that the Sheriff had seized no cotton hut that which was in the intervenor’s possession. The evidence was rejected and a bill of exceptions reserved. We think the intention of the intervenor to bond for his own interest, could only be shown by pleadings in the case or by the bond itself, and at the time the bond was executed, no claim had been set up by the intervenor, by plea or intervention filed in the cause; the bond was executed in the name of the defcm dant, the intervenor signing it as his agent. The bond recognizes the fact of the seizure of the cotton and the intervenor is estopped from proving that there was no actual seizure. Whether there was an actual seizure of the cotton or not, the intervenor was without interest to oppose the plaintiff’s claim after the attachment was dissolved and evidence in support of his demand as a creditor of the defendant, if it had been received could not have affected the plaintiff’s rights.

The judgment of the court below is therefore affirmed with costs.


text:
    McRae, Coffman & Co. v. N. Austin—On Proceedings against Sureties.
    "Where the property attached is bonded, the attachment is dissolved and the bond is substituted for the property In such a case, it is not necessary to make an inventory under Article 257 of the Code of Practice.
    APPEAL from the Eifth District Court of New Orleans, Livingston, J.

      T. W. Waul, for plaintiff:
    There was no property under the control or within the jurisdiction of the court, or upon which the judgment of the court could be made effective for the intervenor. The property attached was released and the bond substituted for the property, for the purpose of satisfying any judgment that might be obtained by the plaintiffs, and no question of ownership or privilege on the property could be adjudicated : nor upon the bond, the condition being to pay or satisfy such judgment as should be rendered in the case then before it. Dorr v. Kershaw et al., 18 La. 57; Bealle v. Alexander, 1 Rob. 277; same case, 7 Rob. 849.
    A failure to make an inventory under some circumstances would render the Sheriff liable to the party injured thereby, but would not invalidate a judgment regularly obtained, when the return shows property attached. In this case no return of inventory was necessary or proper, as the Sheriff had no property in possession, the bond being substituted therefor.

      J. D. & O. T. Bemiss, for Judson & Taylor, the sureties:

      First. — The attachment is a nullity, because there was no inventory of the property attached made in accordance with law; nor, in fact any inventory whatever as required by Art. 257 O. P. All the formalities required by law in cases of attachment, must be complied with under the penalty of nullity. 8 L. R. 18. 8 L. R. 587. 12 R. R. 227. 3d Ann. 687. 5th Ann. 262, &c.

      Second. — There was no property attached belonging to defendant, Austin. Long before the attachment herein was sued out, the cotton seized was shipped to 8. W. Taylor, and bills of lading received by Taylor.

    The bill of lading is evidence of title, and when the consignment is made, the property is no longer under the control of the consignor, nor is it subject to his debts. 2 R. R. 342. 1st Ann. 80. 3 Ann. 78, &c.

      There being no property of defendant, Austin, attached, and he having neither been personally cited or made his appearance, the suit was at an end. The property stands in place of the defendant, and if that which is attached is not his, then the defendant is not in court, and no judgment can be rendered against him. 3 N. S. 321. 6 M. R. 572. 17 L. R. 28. 4th Ann. 187. 2d Ann. 569, 563, 1010. 4 Ann. 585, &c.
    The attorney appointed by the court can not waive informalities, nor supply the want of property of defendant attached. 10 M. R. 472. 12 R. R. 461.

      Third.' — The bonding of the property attached, will not prevent the defendant or his sureties from showing the property attached, was not the property of the defendant. 17 L. R. 28. The securities may discharge themselves from liability, by showing informalities amounting to nullities. 2 R. R. 510.
    There being no legal judgment in the suit against Austin, the sureties on the bond are consequently discharged. 2 R. R. 510.
    The particular force of the cases cited by the plaintiff, 18 La.; 1 R. and7 R., does not present itself to us. In those cases, there was a conflict about the ownership of the property attached after it was bonded, and, consequently, had passed out of the possession of the officer of the court.
    In the case at bar, the cotton attached is in the possession of the garnishee, who claims it, and the question is, does it belong to the garnishee, who is made a party to the suit by plaintiff, or to Austin, the defendant. The case in 2 R. 510, fully covers the point. The judgment of the inferior court should be reversed, and the rule to show cause, discharged, with costs of both courts.
   Ogden, J.

(Slidell, O. J., and Yoobhies, J., absent.)

The appellants were condemned as sureties on the bond given to release the attachment, in the suit between the same parties, just decided; the only ground of defence relied on, besides those which were considered in the other case, is that no inventory was made of the property attached, as required by Art. 257, O. P. We agree with the Judge of the court below, that as the attachment was dissolved by a bond being substituted for the property, this formality was waived and neither the defendant nor his sureties could make any exceptions to the regularity of the proceedings on that ground.

Por which reason and for those assigned in the opinion pronounced in the other case, it is ordered and adjudged, that the judgment of the court below be affirmed, and that the costs of this appeal be paid by the appellant.


text:
    S. Ayles v. L. Hawley et al.
    Until notice is given of the transfer of a claim, by the transferree to the person on whom it is given, the assignment is incomplete and a creditor of the transferrer may legally seize and appropriate it to his own debt. O. C. 2613.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      L. L. Levy, for plaintiff. B. O. Labatt, for defendant and appellant.
   Campbell, J.

Mrs. Hawley, being a judgment creditor of John Tarbe, seized under an execution thereon issued, a judgment rendered in the District Court of Natchitoches, in favor of said Tarbe against John Kirk, Gootes, Laplace & Go., and King. Samuel Ayles by third opposition, claims to he the owner of the judgment seized, it having as he avers, been purchased at a sale of the effects of Tarbe, made by him as syndic of his own creditors, pursuant to an order of court to that effect. Under this averment of ownership, he sued out an injunction, inhibiting Mrs. Hawley from selling the judgment seized. On the trial below, the injunction was perpetuated, and Mrs. Hawley, the seizing creditor, has taken her appeal.

If it be conceded as claimed by the third opponant that the judgment was adjudicated to him at the syndic’s sale, the title then acquired was inchoate, and could only be completed by giving notice of the transfer to the debtors. This does not seem to have been done. Indeed, it is positively established by one of the judgment debtors, that no notice was ever given.

It is well established that until due notice is given of the transfer of a claim, by the transferre to the person on whom it is given, the assignment is incomplete, and a creditor of the transferer may legally seize and appropriate it to his own debt. Civil Code, 2613. Slytes v. McNull's heirs, 7 N. S. 296. Carlin v. Dumartrait, 8 N. S. 211.

The third opponant having stood by silent, for ten years, without asserting or giving notice of his claim, will not, under such circumstances, be heard in opposition to a judgment creditor of the ostensible owner.

It is proper also to add, that there is no proof of a stay of proceedings, nor legal proof of a sale to Ayles.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed and proceeding to render such judgment as should have been rendered in the first instance, it is further ordered, adjudged and decreed, that the injunction granted be dissolved at the costs of Samuel Ayles, third opponant and appellee.


author: J.

text:
    Same case on a Rehearing.
    Parol evidence of an auctioneer is not admissible, when objected to, to establish a title derived through a syndic’s sale made in the course of judicial proceedings. There must be some written evidence to support such a title.
   J.

(Slidell, C. J., and Vooehies, J., absent.)

The court granted a rehearing in this case, and having considered the points made by the appellees counsel on the re-argument of the cause, are of opinion that the judgment first rendered should remain undisturbed for the following reasons:

1st. It is true as contended by the appellees counsel, that the cessio honorum vested the title of the insolvent in his creditors for the purposes of the cession, as to all property and assets which previously belonged to him, whether specified or not in his schedule; but the plaintiff in injunction, has not shown any legal sale by the syndic of this particular asset, which it appears still belongs to the creditors.

The parol evidence of an auctioneer or cryer, is not admissible, where objection is made to establish a title derived ‘by a syndic’s sale made in the course of judicial proceedings. There must be some written evidence to support such a title, and the plaintiff neither alleged nor proved the existence and loss or destruction of such written title and the parol testimony of Phillips having been objected to, was improperly reeeived.

It is therefore ordered, that the judgment already rendered remain undisturbed as the judgmont of the court.


author: Buchanan, J.

text:
    Succession of W. Regan—Fanny Cutter, Opponent and Appellant.
    S. B. died, leaving an infant child; his widow, very shortly after his death, lived in Concubinage withW. R., who took possession of the property of the deceased and treated it as his own, and to whom, some years later, she was married. The property of S. B. was never inventoried nor administered, nor did the widow take out letters of tutorship of her minor child by the first husband. When about twenty-eight years of age, the child of S. B. sued the succession of W. R. for her interest in her father’s estate, of which he had taken possession. To this action the defendant pleaded the prescription of four years, under Article 356 of the Civil Code. Reid: that W. R. was in no sense a tutor, but rather a self constituted agent or intermeddler, and that the prescription of four years was inapplicable.
    APPEAL from the Fourth District Court of New Orleans, Straiobridge, J.

      Van Matre and Roselius, for the Executrix. L. Spring and J. R. Grymes, for opponent and appellant. Benjamin & Micou, for Mrs. Began. Olarhe & GJioiseul, for the assignee.
   Buchanan, J.

Fanny Boyd, wife of 8. W. Gutter, is appellant from a judgment of the District Court, sustaining the plea of prescription to a claim set up by her against this succession, as heir of her deceased father, Samuel Boyd, and of her deceased mother, Mrn'y Regan

The facts as disclosed in the evidence, are as follows: Samvuel Boyd died in New Orleans in September, 1824, leaving an infant child, the appellant, issue of his marriage with Mary Boyd, his surviving widow. The property in posses-' sion of Samuel Boyd at his death, consisted of two slaves, a number of drays and horses, and the stock of a coffee-house and boarding-house; the whole estimated by witnesses, at five to six thousand dollars in value. After Boyd's death, his widow continued to carry on his business, with the assistance of William Regan, who had been in her husband’s employ as a drayman; with whom she cohabited as man and wife from a period immediately succeeding her husband’s death, and who exercised the entire control over the business and property, treating it as his own. The coffee-house was known as Regan’s coffee-house. Mrs. Boyd never administered on the estate of her husband, no inventory was made of the same, neither did she take out letters of tutorship of her minor child, who appears from the evidence, to have been called in her childhood by the name of Regan.

Although Regan and the widow Boyd lived together, as above said, from the time of Boyd's death, they were not married until the 8d of September, 1829. Mrs. Regan died in February, 1848, and Regan in March, 1852. Mrs. Gutter made her claim against Regards estate In July, 1852, at which date she must have been about twenty-eight years of age; and the prescription which has been pleaded in bar of her action is that of four years, under Article 856 of the Civil Code, which reads as follows: “ the action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority.”

We do not think the prescription of four years applicable to this case. William Regan was never the tutor of the minor Fanny Boyd, either by appointment of court, or constructively, under Article 273 of the Civil Code, by the decision of a family meeting called'previous to his marriage with her mother, for the purpose of retaining the tutorship in the hands of her mother. The obligation of Began towards the appellant was rather that of a self constituted agent, or intermeddler; and there is a very remarkable document in the record, emanating from him, of which the only reasonable interpretation would seem to be, a recognition on his part, of the extent of his obligations towards his wife and her child by her first marriage, arising out of his conversion of the property of Boyd's succession to his own use.

The document in question purports to be a sale by authentic act of certain real estate and slaves, for a price of four thousand one hundred dollars, by Began to his wife, on the 18th January, 1843. In this conveyance, although the parties had been married nearly fourteen years, yet the vendor is described as an unmarried man, and the vendee as a widow. The extraordinary renunciation of status by Mrs. Began, implied in this notarial act, appears to be only explicable upon the idea that the intention was to secure to the vendee and to her daughter the equivalent of what had come into Began's hands many years before, from Boyd's estate. There are several circumstances related by the witnesses which favor this view. Thus, Began mentioned to his friends that he was apprehensive of trouble from Mrs. Gutter, “ but she had better let him alone, and he would do what was right.1’ Again, Mrs. Gutter has actually possessed as owner and inhabited the house at the corner of Náyades and Erato streets, included in this sale, from its date to the present time.

As a sale, the document in question is invalid for want of capacity in the parties to contract, the vendor and vendee being proved to have been at the time husband and wife. C. 0. 2421. But it is not without importance in the point of view above mentioned, as a circumstance in appellant’s case. We are justified by the evidence in estimating Samuel Boyd's property at the time of his death, at about five thousand dollars. Deducting some horses proved to have been sold by his widow, that property came into the hands of Began, and was treated by him as his own. The legal presumption, in the absence of proof to the contrary, is, that it was property of the matrimonial community of Boyd and his wife. Consequently one-half belonged to the widow, and one-half to the appellant, as the only child of Boyd. For this half, amounting at a reasonable estimate, to two thousand and fifty dollars, the appellant has, by Article 3283 of the Code, a legal mortgage on the property of William Began, from the 3d September, 1829, the date of his marriage with the widow Boyd.

■The appellant is also entitled to claim as heir one-third of the estate of her mother, which has not yet been liquidated, so far as the record informs us.

The judgment of the District Court is therefore reversed : and it is decreed, that the account of administration of William Regan's estate be amended, by placing thereon the appellant Fanny Boyd Gutter as a creditor for the sum of two thousand and fifty dollars, with legal mortgage from the 3d September, 1829 ; that the rights of the appellant as heir of her mother be reserved; and that the appellee, in her capacity of administrator, pay costs in both courts.

Rehearing refused.


text:
    Barnes v. New Orleans Canal and Banking Co.
    There is no law nor usage, nor is there any obligation in its charter, making it obligatory on the New Orleans Canal and Banking Co. to keep a railing along the margin of the canal.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Ogden & Leomj, for plaintiff. E. A. Bradford and Bandell Sunt, for defendant.
   Campbell, J.

We are unable to concur in the conclusion to which the Judge of the District Court arrived. It is not pretended that the road is not of the width, or that it is not built of the materials and in the manner prescribed by the charter.

The charter provides that the company “ shall lay out a road not less than twenty-five feet wide along the whole line of the canal, and cover the same with sand, shells, or other hard substance, so that it may at all times be suitable for carriages to travel thereon.” That these provisions have been faithfully complied with with, is not denied, nor is it pretended that the road was not kept in perfect order.

It is true, the witnesses generally concur in the opinion, that a railing along the margin of the canal in its whole length, is essential to the safety of persons driving over the road; and it may be conceded that, if such a railing had been erected, the accident from which the loss complained of in this case resulted, would not have happened. It is in proof that on the old shell road, which is built on the margin of the Bayou St. John, there never was such a railing, and it is notorious that this precaution is no where resorted to in building roads along the banks of our rivers or other streams.

We know no law or usage making it obligatory on the company to erect such a railing; and though its construction might have rendered the road safer, and prevented the loss complained of, yet it was not the duty of the company to erect it either under the general law, usage or their charter, they ought not to be held liable.

If in driving through the city or along the margin of one of our bayous, the horse should take fright and be killed from dashing himself against a lamp post or wall, or should leap into the stream and be drowned, it would hardly be pretended that the city in the one case, or the parish in the other, would be liable for the loss. The obligation of a private corporation in this behalf, is no greater than that of a public or political corporation, except in so far as those obligations may have been imposed by the act of incorporation, and it has been seen that nothing in defendant’s charter makes it their duty to build a railing to prevent horses traveling the road from jumping into the canal.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts.


text:
    J. A. Lusk v. J. C. Swon—C. B. Church, in Warranty.

    1. hired a slave to S.; the slave absconded, and L. brought suit against S. for its value. S. pleaded that since the hiving he had discovered that the slave was free. L. then called his vendor in warranty, who excepted to the proceeding. Held: L. had no right to call his vendor in warranty, although it was not improper to give him this judicial notice of the allegation of the freedom of a slave which he had sold.
    APPEAL from the Eifth District Court of New Orleans, Buchanan, J.
    ii. Mott, for plaintiff. L. Santón, for defendant. J. W. Price, for war-rantor and appellant.
   Ogden, J.

The plaintiff instituted this suit to recover from the defendant the value of a negro hired by the defendant from the plaintiff, and taken to St. Louis as a waiter on a steamboat commanded by the defendant — the negro having- absconded at St. Louis and never returned to his master, in New Orleans. Among other defences set up, the defendant relied on a special plea that the negro hired by him and who had escaped, was free, as the defendant had discovered after hiring- him. The plaintiff then called in warranty Charles B. Church, who sold the negro to W. D. Dougherty, from whom the plaintiff purchased him with subrogation to Dougherty's rights of warranty against his vendor, Church. The warrantor excepted to the plaintiff’s supplemental petition citing him in warranty, on the ground that the plaintiff had never been evicted by the judgment of any court, and that no suit had been brought either by the negro himself to recover his freedom, or by any one else to evict him,- and that plaintiff had no right in law to call him in warranty. The exception was overruled, and after a trial on the merits, a judgment was rendered in favor of the defendant, discharging him from all responsibility for the negro’s escape, but condemning the warrantor to pay the plaintiff the price of the negro with interest, from which judgment the warrantor has appealed.

We think the court below erred in overruling the warrantor’s exception. It is the defendant only who when sued, in .eviction is permitted to cite his vendor in warranty. The Article 2495, 0, 0., authorises a plaintiff to notify his vendor, when he is obliged to commence judicial proceedings against one disturbing him in his possession, of the action which he is commencing. But in an action like this, to which neither the negro himself is a party, nor any one else asserting a title adverse to the plaintiff, the Article 2495 of the Code is not applicable, and there is no rule of practice which would authorise the plaintiff to proceed against his warrantor, except by a direct action in which he assumes the burthen of proving that the negro was free when he purchased him, as a ground of annulling the sale and recovering back the price. Although we are of opinion that the right of call in warranty does not extend to this case, yet we must at the same time remark, that we do not disapprove the practice of giving a judicial notice in this mode. When a person is thus called, he has an oportunity given him to participate in the proceedings, with the right to decline the call, if he thinks proper. The waiver of petition and citation would at least stand as a permanent and authentic record of the notification, and it seems equitable to allow the party making the call this privilege.

It is therefore ordered and adjudged, that the judgment of the court below, appealed from, which condemns the warrantor, be avoided and reversed, and that the suit as regards him be dismissed at the costs of the plaintiff in both courts.


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

text:
    J. P. Mason v. Police Jury of the Parish of Tensas et al.
    The police jury of the parish of Tensas had authority under the statute of 1852, entitled “ an Act to amehd an Act relative to the building of the levees in the parish of Tensas,” &c., &c., to pass an ordinance imposing an annual tax, ad valorem, upon all the taxable lands in the parish of Tensas, for building and repairing levees on the Mississippi river in that parish. Slidell, C. J. Campbell, J., and Ogden, J., concurring.
    “Taxable lands” comprise buildings on lands, so as to authorize the buildings to be estimated in making an assessment for taxation; for, in legal contemplation, buildings are a part of the land. Slidell, 0. J. Campbell, J., and Ogden, J., concurring.
    The mere fact of an assessor copying his assessment roll from the State assessment, (there being no application for correction to the proper officers within the legal delay, and it being admitted that the estimation was fair,) does not make the assessment inoperative. SUded, 0. J. CamrpbeU, J., and Ogden, J., concurring.
    The general authority to the police jury to assess and collect an ad valorem, tax upon all taxable lands in the parish, is controlled by the subsequent part of the law which is directory to the assessor, and requires him to describe the lands comprised in his roll by the owner’s name, and the nmriber of acres owned by each. This direction can only apply to tracts of land, other than town lots, unless those lots are of a size sufficient to be described in acres. Buchanan, J.. dissenting.
    Laws which give to municipal or other corporations the right of taxation, are, pro-tanto, a delegation of sovereign power, and should be construed with strictness. Buchanan, J., dissenting.
    The law requires the assessor of the levee tax to make the assessment himself, and to make that assessment by copying from the State assessment roll is illegal. Voorhies, J., dissenting.
    APPEAL from the District Court of the Parish of Tensas, Perhins, J.

      Stacy & Sparrow, for plaintiff and appellant. T. P, Fcm’a/r, for defendant.
   Slidell, 0. J.

Under the statute of 1850, p. 33, I am of opinion the police jury of Tensas had authority to pass an ordinance imposing such a tax as is stated in the petition and admitted in the answer, to wit, an annual tax, ad va-lorem, upon all the taxable lands in the parish of Tensas, for building and repairing levees on the Mississippi river, in said parish. Such ordinance was a legal ordinance, and the tax a legal tax.

I am also of opinion, the words, “ taxable lands,” comprise buildings on lands, so as to authorize them to be estimated in making the assessment. That the mere naked soil, apart from the buildings attached to it, is alone liable to this taxation, seems to me untenable. In legal contemplation they are part of the land. The purpose of the tax is to protect the whole landed estate of the parish from injury by inundation. There might perhaps have been a propriety in the Legislature’s authorizing a discrimination between lands used for agriculture and those employed for building purposes, between rural and urban property ; but no such discrimination has been made ; and, it is obvious, both classes of property would be benefited by protection from inundation, although the degree of benefit might perhaps be greater in one case than in the other.

The mere fact of an assessor’s copying his assessment roll from the State assessment, (there being no application for correction to the proper officer within the legal delay, and it being on the contrary admitted that the estimation was fair,) does not seem to me to make the assessment inoperative.

I think the appellant should take nothing by his appeal, and that he pay the costs in both courts.

Campbell, J. I concur.

Ogden, J. I concur in the opinion of Chief Justice Slidell.

Buchanan, J.,

dissenting. The defendants derive their power of taxation for creating and keeping up a special fund for levee purposes, from the Act of Assembly of 1850, page 32 of the Session Acts. The 4th section prescribes the mode of assessing said tax, in the following words ? “ Said police jury shall annually appoint an assessor of levee taxes, who shall make an assessment of all lands owned in said parish, and a roll thereof, specifying, opposite each owner’s name, the number of acres of land, valuation and amount of tax assessed.” The evidence, to my mind, makes it doubtful whether a separate levee tax roll was made or not.

But granting the roll was made, I am of opinion that it could not legally include town lots. It is true, a previous part of the section declares that the police jury may assess and collect an ad valorem, tax upon all taxable lands in the parish; but this general expression is controlled by the subsequent passage quoted above, which is directory to the assessor, and requires him to describe the lands comprised in his roll by the owner’s name, and the number of aeree owned by each. This direction can only apply to tracts of land, other than town lots, unless those lots are of a size sufficient to be described in acres. Laws which give to municipal or other corporations the right of taxation, are, protanto, a delegation of sovereign power, and should be construed with stictness. In the law now under review, a very summary process of seizure and sale is accorded to the police jury for the collection of its levee tax. . A power which involves the right of forced expropriation, cannot be too jealously guarded in its application. Applying these principles to this case, I find a right of assessing a tax upon land according to the number of acres contained in the land taxed. This law is not fulfilled by an assessment which does not express the number of acres, nor applicable to land of less quantity than an acre.

I concur in the opinion, that the injunction should be perpetuated.

Voorhies, J.,

dissenting. This is an appeal from a judgment dissolving an injunction obtained by the plaintiff

The legality of a levee tax, assessed on his property, under the 4th section of an Act entitled, “ an Act to amend certain sections of an Act relative to the building of levees in the parish of Tensas, and to create a special fund for levee purposes, and enforce the collection of the same,” approved 2d March, 1850 is the only question presented in the case. That section empowers the police jury to impose, assess, and collect an annual ad valorem tax upon all the taxable lands in the parish of Tensas, for building and repairing levees on the Mississippi, within its limits. To this end, it is made the duty of the police jury to appoint annually an assessor of levee taxes, whose duties are therein prescribed.

The property of the appellant on which the assessment was made, consisted of two lots of ground, including the buildings thereon erected, situated in the village of Waterproof, and appraised at $2000. It is admitted that the property, at the date of the assessment, was of the value placed upon it, to wit, the lots at $400, and the buildings at $1600. The evidence shows that the assessment made by the assessor of the levee tax, was copied from or based upon the assessment of the State taxes.

The grounds of objection urged by the appellant’s counsel against the legal! ty of the assessment, are, 1st. That the tax could only be levied upon the assessed value of the lots alone, and not upon the buildings. 2d. That a separate assessment of the taxable lands should have been made, and the levee tax levied upon that assessment.

I think the last objection is well taken. As a test of its legality, it may be asked, whether a forced alienation under this assessment, standing as a judgment, would convey a valid title to the purchaser? I think not. The terms of that section are too plain to leave any room for doubt as to the meaning of the lawgiver. The duties of the assessor are clearly defined : He “ shall make an assessment of all lands owned in said parish, and a roll thereof, specifying opposite each owner’s name, the number of acres of land, valuation and amount of tax assessed,” &c. In our law, an assessor is one who has been legally appointed for the purpose of appraising property with a view of laying a tax on it. It was therefore requisite that the assessor of the levee tax should himself have made the assessment. But it is urged by the defendants’ counsel in his brief, that “ the State and school tax roll is presumed to contain a fair assessment of the property for all purposes. Any other assessment fairly made, would be precisely the same, and the adoption by the police jury of the State assessment roll as the levee assessment roll, made ov.t 1¶ W. Branlz, State, parish and levee assessor, is to all intents a specific assessment for levee taxes. The law has, therefore, been substantially complied with.” This is answered by the requirements of the statute, which are imperative, that the assessment shall be made by the assessor of the levee tax. 6 N. S. 347. 7 La. 50. 10 La. 283. 4 Ann. 252,

There is no proof in the record, that W. Bra/nta acted in both capacities, as State and levee tax assessor, as assumed by the appellee’s counsel. I am, therefore, of opinion that the judgment of the District Court should be reversed, and the injunction made perpetual.


text:
    Succession of Nathan Jarvis—On the Opposition of Barrierre, Lacapere & Co.
    "Where the claim is against an executor personally, and is for less than $300, the appeal will be dismissed, notwithstanding the amount of the succession may have exceeded that sum. Art. 1152 does not apply in such a case.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. Magne, for opponent:
    The amount in dispute being only $02 70, this case does not come within the jurisdiction of the court. “ which extends only to cases where the matter in dispute exceeds $300.” Constitution of 1845, Art. 63. Constitution of 1852, Art. 62. C. P. 874, 875. Copley v. Ross, A. R. 310. Frellsen v. Copley, 2 A. R. 911; and the exceptions pointed out by those instruments in relation to the legality or constitutionality of taxes, &c., or to fines, &c., imposed by municipal corporations, are clearly inapplicable here.
    It is contended, that there is another exception in all succession cases ; but this is clearly a mistake. The succession cases may be divided into two classes : 1st, those in respect to the appointment or removal of curators, administrators, &c. ; and 2d, those in which some property or right of property is litigated.
    On the cases of the first class, in which the parties are merely contending for the administration of the estate, the jurisprudence was during many years unsettled — not as to the basis of $300 giving jurisdiction, on which all agreed— but as to the way of fixing that basis; thus it was contended on one side that the amount giving jurisdiction was the total value of the estate to be administered upon, while, on the other, it was contended that it was only the value of the commissions which those curators, &c.., were entitled to. This uncertainty, however, was done aw'ay by the promulgation of the Code of Practice, declaring that the amount of the estate was the true basis.
    Besides, it must be observed: 1st, that, in this case, the appellant is now acting in his personal capacity, the judgment a quo being rendered against him personally; 2d, that this case has no relation whatsoever to the appointment or removal of the executor.

      Durant & Horner, for executor and appellant:
    The claim of the appellees was less than $300 — but this matter was in the nature of a concurso, and the whole estate exceeds $300. This court, therefore, has jurisdiction. See O. P. 1049, 1050. L. O. 1152. 8 L. R. 166. 11 L. R. 462. 3 Rob. 5. 12 Rob. 415. 2 An. 189.
   Buchanan, J.

In this case, the matter in dispute is only ninety-two dollars and seventy cents. The Article 1152 of the Civil Code is not considered to be applicable to the present case, which is an appeal from a judgment against an executor personally.

Appeal dismissed, with costs.


author: Ogden, J. Campbell, J.,

text:
    State v. Cornelius Boyle.
    Unless expressly included by the statute, Sunday must be excluded when a certain number of days is allowed to a defendant in. a criminal case. Therefore, under the 435th section of the Statute of 1805, which requires that a copy of the indictment and list of thejury be delivered to the prisoner at least two entire days before he shall be tried, the prisoner is entitled to two entire days exclusive of Sunday.
    APPEAL from the First District Court of New Orleans, La/rue, J.

      Morse, Attorney General, for the State. Haynes & Meld, for the prisoner.
   Ogden, J.

The defendant was indicted for the crime of murder, and having been tried, convicted, and sentenced to death, appeals to this court for relief. The record contains a bill of exceptions to the opinion of the Judge of the court below, overruling a motion which was made for a continuance. This bill of exceptions states, “the defendant also insisted that he i ad not had suf-ib ient legal notice of the trial of this cause, and makes the Sheriff’s return a part of this bill of exceptions.” The return of the Sheriff incorporated in the bill of exceptions, is his return of service on the prisoner, of a copy of the indictment and list of the jury, which by the 35th section of the Statute of 1805, it is required, should be delivered to the prisoner at least two entire days before he shall he tried. This return shows the service to have been made on the 23d of April, and the trial of the prisoner took place on the 26th of April. One of the days intervening was Sunday; and we are called on to decide, whether the two entire days allowed to the prisoner under the statute, between the service of the indictment and jury list, and his trial, are judicial days or exclusive of Sunday. That ground is not specially stated in the bill of exceptions, but we consider it substantially embraced in the objection made, that he had not sufficient notice of the trial, as shown by the Sheriff’s return of the service of copy of the indictment and jury list. There could be no other object in the law requiring this service to be made on the prisoner, except to enable him to prepare for his defence and to ascertain the character of the jury summoned to try him. Sunday, is declared by a statute of the State to be a day of rest, and this is a recognition by law of the divine commandment to abstain from secular employment on that day. ' Considering the object and intention of the statute according to the prisoner two entire days from the service on him of the indictment and jury list, must have been solely to enable him to exercise within that delay, proper diligence in securing the attendance of witnesses, communicating with his counsel, and otherwise preparing for his defence, we cannot consider Sunday, which is set apart by law as a day of rest, as included within the delay thus accorded to him. In civil proceedings, our law has, in some cases, expressly declared Sunday to be included, and in others to be excluded in the delays fixed for doing certain acts. However the rule may be in civil cases, we think, unless expressly included by the statute, Sundays must be excluded, when a certain number of days is allowed to a defendant in criminal cases.

On this ground, we feel bound to reverse the judgment of the court below, and order a new trial.

Judgment reversed and cause remanded.

Campbell, J.,

(with whom concurred Buchanan, J.)

In this case, a copy of the indictment and a list of the jury were served on the defendant in prison on Friday, the 23d of April, 1853. He was tried on Monday, the 26th of April.

By the 35th section of the Act of 1805, it is provided that, in capital cases, a copy of the indictment and a list of the jury who are to pass on his trial, shall be delivered to him at least two entire days, before he shall be tried. The defendant objected to go to trial on the ground, that he had not received sufficient legal notice of the trial of the cause.

On these facts, two questions arise:

1st. Had the accused due notice of trial ?

2d. Was he served with a copy of the indictment and a list of the jury at least two entire days before the trial ?

I. Although there is no statute in this State, expressly requiring a notice of trial in criminal cases, it is evident that the accused cannot exercise the rights guaranteed to him by the Constitution and laws of Louisiana, without such a notice. How can he practically exercise the right given to him by the 35th section of the Act of 1805, to produce lawful witnesses in Ms defence, and to “ home process to compel Ms witnesses to appear on Ms trial," unless he first receive notice of the time and place of trial ? How can he, without such notice, enjoy the right, secured to him by the 103d Article of the Constitution, “of Toeing heard Toy himself or counsel;" of “ meeting the witnesses face to face;" and of having “ compulsory process for obtaining witnesses in Ms favor ?" Similar questions might be asked concerning other legal and constitutional provisions. These are sufficient, however, to show that the accused is entitled to have notice, that is to say, to be informed of the time and place, when and where he is to be tried. No statute prescribes any precise form of giving this notice or information. But the Constitution and laws necessarily imply that notice of trial must be given in criminal cases.

Nemo inauditus punitur. It is indeed a principle pervading our free institutions, that no one is to be condemned unheard. “ Whenever justice is fully and impartially administered, it must be a fundamental rule, that the party impleaded shall have due notice of when and where, and against what, he is to defend himself.” This is the language of an American jurist. “ Justice requires, if there be no notice, or if it be insufficient,- — -there having been in truth no trial — that the verdict be set aside, unless the defendant have waived it. Want of due notice therefore has been held to be a proper ground for a motion for a new trial.” Graham on New Trials. And this is the law of criminal as well as of civil cases. In Rex v. Bear, 2 Salk. 646, the court says : In cases of acquittal, on indictments for libel, new trials were never allowed, unless the acquittals were procured by fraud or mal-practiee. “ In indictments for perjury, we never do it because the verdict is against evidence; but if you prove a trick, as no notice, it is otherwise.” So in an information in the exchequer, against Stevens & Frail, the court held, that each defendant, though they were partners in trade, and the charge against them was for smuggling, was entitled to a separate notice of trial, and Frail not having been served, the verdict was set aside, and a new trial was granted as to both defendants. 8 Price, 72.

Upon a motion for a now trial, on account of the insufficiency of the notice, the court shall inquire whether the defendant was misled or prevented from preparing his defence, or injured and deprived of any legal or constitutional right thereby; and should grant or refuse the motion in the exercise of a sound legal discretion.

I see no reason to believe that the defendant in this case, had not due notice of trial, or was deprived of any right, unless he was not served with a copy of the indictment, and a list of the jury in due time. And this leads to examine, whether the ttoo entire days, mentioned in the Statute of 1805, are to be interpreted as judicial days, exclusive of Sundays.

II. If this were res integra, I would unhesitatingly pronounce the two days mentioned in the statute, to mean judicial days. In general, when a certain number of days is allowed for pleading, &c., Sundays are reckoned the same as other days, in England and in the United States. But it would be an error to suppose that Sunday is dies non juridicus, only for matters to be transacted in court. The maxim is, dies dominicus non est juridicus. The Lord’s day is not the law’s day. “Sunday is not a day for judicial proceedings or legal purposes.” Broom’s maxims. Service of a summons on a Sunday is void— no arrest can be made, or process served on a Sunday, except for treason, felony or breach of the peace. Service of a declaration or of a rule of court must not be made on that day ; nor can an attachment be put in force, or an execution be executed then. Broom 19. Coke says: the Sabbath day is not dies juridicus, for that ought to be consecrated to divine service. Sunday is, by the laws of Louisiana, a day of rest. A judgment by default may be made final, after the lapse of three days, said the O. P. a. 312. This meant, said this court, three judicial days, excluding Sunday, on which day the court cannot hold its sessions. The same interpretation was given to a similar provision in the Statute of 1805. 7 M. R, 360. So the days allowed for moving for a new trial, by the Act of 1805, c. 10, were judicial days, according to the decision in 1 M. 20. Still, as a general rule, Sundays are reckoned among the days granted for pleading, &c., in England and the United States, according to the common law.

But the common law did not require a copy of the indictment or a list of the jury who were to try them, to be delivered to persons accused of capital offences. In process of time, however, statutes were passed regulating trials for treason ; by the provisions of which, persons accused of treason were entitled to a copy of the indictment, five days at least, and a list of the jury who were to try them, two days at least before their trial. St. 7 Will. 3, c. 3. St. 7 Ann., ch. 31, s. 10. It appears, according to the discourse of Foster, that, on the several trials for treason in Surry, in 1746, the accused were served with copies of their indictments five days before their arraignment, exclusive of the day of arraignment, the day of service, and the intervening Sunday— “ Sunday not being a day on which prisoners may he presumed to he advising with counsel, and preparing for their defence" — that the same course was adopted in a commission which sat in the North, in the summer of that year; and that a similar course had been previously pursued upon a commission in 1716. Sunday was excluded, he adds, ex majori cauteld and in favor of life— and not of absolute necessity, though it is best to follow precedents if time will allow it. “ It was done for greater caution, and to obviate all objections; but the statute doth not require it.” Whatever may have been the grounds on which this practical interpretation of the English statute was based, it is certain, that under the well settled practice of the courts in England, Sunday is not included in the five days allowed, by the statute, to the accused to prepare for their defence.

This is expressly so stated by East., vol. 1, p. 112. Ohitty says: “By general practice too, the time, at least with respect to the copy of the indictment, is reckoned exclusive of Sunday, as that is a day on which it will not be presumed that the prisoner is preparing for his defence, though this indulgence is not given by the statute.” And, in a note, he adds : “ It is said in Lord Ers-kine’s speech on the trial of Hadfieli, that a defendant had fifteen days before trial.” 1 Ohitty, 406 and note m.

Taking it then to be established, that the practice in England, excluded Sundays from the five days granted the accused in cases of treason by statute, to prepare a defence; it would seem clear that our Legislature intended to exclude Sundays from the two days granted the accused in capital cases by the Statute of 1806, to prepare their defence. For, upon a close examination and comparison of these statutes, it is manifest that the provisions and the language of our Act of 1805, are mainly borrowed from the English statute, with this difference however: The English statute granted a delay of five days at least, between the delivery of the indictment and the trial, while our statute grants a delay of two days at least; and the English statute confined the right to receive a copy Qf the indictment to cases of treason, while our statute extends the right to all capital cases. In borrowing the provisions and language of the English statute, our Legislature doubtless intended that they should be understood and interpreted according to the settled construction and practice o the Court of King’s Bench in England.

And this view is strengthened by a consideration of the inconvenience and evils which would result from any other construction. The delay between the delivery of the indictment and the trial of the accused, needs not be more than two entire days. Now, suppose the 8th of January, Christmas, or any other legal holiday to be a Saturday, and a party accused of a capital crime to be served in prison on Friday afternoon, with a copy of the indictment and a list of the jury who are to try him on the following Monday. The courts and the public offices will be closed on Saturday, and he will be unable to procure subpoenas to compel his witnesses to attend his trial, or if he procure them, to have them served; he will be in the same situation on Sunday. If the two days granted him by the Statute of 1805, do not mean judicial days, he may be forced into a trial on Monday, without having an opportunity of summoning his witnesses, or preparing his defence. And yet the Constitution expressly declares, “ he shall have compulsory process for obtaining witnesses in his fa- ■ nor.” He might thus be deprived of the right of defence under our free American institutions.

The object of the Legislature was solely to enable the accused to prepare fully for his defence, by exercising, within the two days allowed him, his right of communicating with his counsel, securing the attendance of witnesses, and taking other steps for his defence. The time allowed for this purpose is, at best, very short; to make it shorter by judicial construction, is to obstruct, if not to defeat the object of the laws. To decide that the two days do not mean judicial days, would, in the case supposed, annihilate, for the practical and substantial purpose of defence, the time, and amount to a repeal of the statute. Surely, “the great inconvenience which might result from such a construction, affords fair grounds for supposing that it could not be what was contemplated by the Legislature, and warrants the court in looking for some other interpretation.” 11 M. & W. 928. 10 M. & W. 484. Argumentwm, ab inconvenienti, plurimum valet in lege.

For these reasons, I would unhesitatingly, if this were res integra, declare that the two days mentioned in the statute, mean judicial daj^s, and are exclusive of Sundays, and that the defendant is entitled to a new trial.

It having been strenuously urged in argument that the uniform practice in this State, since the adopting of the Act of 1806, has been to include in the countan intervening Sunday, the majority of the court long doubted the propriety of disturbing what seemed the established practice. Though we regarded this practice as dangerous and fraught with mischief, it was considered not inconsistent with the terms of the statute, when construed by the English authorities alone referred to, and were therefore disposed, though with reluctance, to yield to what was deemed established usage, the force of authority.

That the practice in the criminal court of this district has been as is stated, is no doubt true ; and in confirmation of this, one of my brethren called our attention to other records on our files, in which an intervening Sunday was included as other days ; though it is proper here to state, that in those cases the prisoner did not urge this as a reason why he should not be put 'upon his trial.

We have likewise been advised by another of our brothers, who was long engaged in the practice and upon the bench in a country district, that in the courts over which he presided, the invariable rule was, to exclude Sunday in the count. In other parts of the State, the practice, it is believed, has been different.

It is important in so grave a matter, involving as it does the rights and even the life of the citizen, that a uniform practice in this respect should obtain throughout the entire State; and believing that ths rule as settled by the English courts, is more in conformity with the Constitution, laws and policy of our State, and better calculated to promote the ends of justice than that under which the Court of the First District, and other of our courts, have acted, I am of opinion that the practice of those courts should not be sanctioned, but that the rule of the English courts should govern and be enforced in all the courts of the State having criminal jurisdiction, and this is the unanimous opinion of the court.