Volume 8 — Louisiana Annual Reports

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>Appeal from the Fifth District Court of New Orleans. Buchanan, J.</p>

<p>Appeal from the Second District Court of New Orleans, Lea, J.</p>

<p>Parole evidence is inadmissible to prove either the sale of a slave, or acknowledgments tending to shew the ratification of an unauthorised sale of a slave.</p>

<p>Matters available in the defence of a suit will not authorize an injunction.</p>

, J. Plaintiff sued Jemes J5T. Spurlock for various causes of action, on a note, open account, judgment, &c. He charged that certain property owned by James N. Spurlock had been fraudulently mortgaged to Drury Spurlock in order to defeat plaintiff’s right.

<p>Where the agent contracts for a foreign principal, the credit is presumed to be given to him.</p>

<p>A promise to pay a sum of money to a wife, for a wound, inflicted by the party promising, on her husband—whether or not death ensued—is binding.</p>

<p>Appeal from tbe Third District Court of New Orleans, Kennedy, J.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, 3.</p>

<p>Appeal frofn the Fourth District Court of New Orleans.</p> <p>cited C. C. 1928, § 8, 2294, 1295. Escurix v. Daboval, 13 L. R- 90. Neman v. Chamberlin, 5 Rob. 11G. Edwards v. Turner, 6 Rob. 382.</p> <p>cited Snow v. Allen, 1 Starlrie’s Rep., 2d ed. E. C. L. Rep., 191. Silversides v. Bowley, 1 Moore, 92. Bavinger v. McIntosh, 3 Baru. & Cress, 693. Spences' v. Jacob, 1 Moo. & Mai., 180. George v. Badford, 3 Carr & Payne, 464.</p>

<p>A slave was inventoried as the property of the succession of Mielke. The curator of the succession took a rule on the slave, and on Hutchison, who held the slave in possession, to test the condition of the person claimed as a slave, and the right of possession of Hutchison. Hutchison excepted to the proceeding by rule. Held: that there is no warrant in the law for the mode of proceeding adopted by plaintiff, nis remedy is by an action.</p>

<p>No separation of husband and wife can be decreed for cause of abandonment without a compliance with Article 148 of the Code.</p> <p>The law presupposes the possibility of a reconciliation between husband and wife, and its policy is to bring them together again.</p> <p>Vague and general allegations cannot support a petition in an ordinary civil suit. The cause of action—the object of the demand and the nature of the title, must be stated with such certainty as to apprise the defendant of every circumstance necessary to put him on his just defence, and to bar a subsequent investigation of matters once decided. A party can be permitted to derive no advantage from the obscurity, or generality of his allegations.</p> <p>Sound policy requires that there should be no relaxation of these rules, especially in proceedings of this kind, which involve the fate of individuals, and the most important interests of society.</p>

<p>T. sued his wife for a separation from bed and board, and in the same action sought to have annulled certain notes which he alleged had been given by him. to her without consideration. lie made B., who held the notes, a party, and charged that B. had notice that the notes were given without consideration. Subsequently B. sued T. on the notes, and T,pleaded Mspmdem; Held: That the plea was good.</p>

<p>Sheriff sequestered live stock. The question being what allowance he should receive for keeping them. Helcl: The stock was kept in a pasture, and if any feed was given, there is nothing to shew the quantity and cost of it; besides this, it is shown that at the time of the sequestration the cows gave the defendant from forty to forty-live gallons of milk per day, for which sheriff does not account. His claim was therefore reduced.</p>

<p>On the dissolution of an injunction staying the execution of a judgment bearing 8 per cent., 20 per cent, damages may be allowed. But a further allowance of 8 per cent, interest, would be giving 16 per cent, interest, which is illegal.</p>

<p>Under the well-established jurisprudence of this State in relation to sales of land for taxes, no title passes, by a forced sale, under a defective description.</p> <p>Under the Act of 1847, the Tax Collector is required to give a certificate in writing to the purchaser of lands sold for taxes. Held', that so to interpret the act as to malee this certificate operate asa conveyance from the State, so as to vest an absolute title in the purchaser, and to establish it as evidence that all the formalities required by the Statute had been complied with, the language of the Statute must be imperative, and free from all ambiguity. Such a power, given to subordinate ministerial officers, would be in derogation of private property, and ought to be construed strictly, and not enlarged by intendment.</p> <p>All proceedings for the recovery of State taxes are in the name of the State, and whether the conveyance is in the name of the State, or of the tax gatherer, the conveyance is a sanction, and if not a legal one, it can touch no man’s property.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>In 1849, a crevasse occurred on defendants’ land. Plaintiffs, who lived above and below the land, contracted with James Flemming to have tho crevasse stopped, and brought this action to recover the price from the defendants, on whose land the crevasse was. Held: That the defendants cannot be held liable for the amount claimed, unless there was an express or implied assent on their part to pay. The crevasse was the result of overpowering force—the act of God, which does nobody harm.</p>

<p>Appeal from the District Court of the Sixth Judicial District, Burhe, J_</p>

<p>Appeal from the Second District Court of New Orleans, Lea, J.</p>

contended that the instrument offered in evidence, though not as good as a will, was admissable to show an acknowledgment of the parentage of plaintiffs, and cited Lartigue v. Baldwin, 5 Martin, 193. Breedlove v. Turner, 9 Mart. 380. Smoot v. Bussel, 1 N. S. 522. Fouga/i'd v. Tourregard, 3 N. S. 466. Thompson v. Oha/ceau, 4 N. S. 461. Jones v. Bead, 1 Annual, 200. cited Stewart v. Boise, 10 L. R. 533. Marcos v. Barcas, 5 A. 265. Landry v. Duaren, lb. 612. 0. C. 1637.

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p> <p>On the trial of this cause, “ Plaintiffs offered in evidence all the evidence given by them on the former trial, together with a certificate of the Governor of the State of Texas, as to the official capacity of J. M. Baker, Justice of the Peace.”</p> <p>Objection was made to the admissibility of the testimony of J. T. O'Reilly, which being overruled, the following bill of exceptions was taken by the defendants :</p> <p>“Bill of Exceptions.</p> <p>“ Be it remembered, that on the trial of this case, plaintiff offered in evidence the testimony of J. T. O’Reilly, taken under a certain commission, under an order of this Honorable Court, dated 28th day of February, 1848, to the reception of which in evidence, B. W. Huntington, by his counsel, objected, on the grounds following, to wit:</p> <p>1st. That the return of said commission is not properly authenticated, for the reasons set forth in the Bill of Exceptions taken by the defendant on the former trial of this cause, dated the 19th of January, 1849, and which reasons are sustained by the opinion and decree of the Hon. the Supreme Court. This said decree of the Supreme Court determines, said testimony to be illegal, and the same ought therefore to be rejected ;</p> <p>2d. That there is no order of Court directing any new commission to any Judge, Justice of the Peace, or other commissioner in the State of Texas, subsequent to that ordered on the 28th February, 1848, and that the return of a commission which has been decreed to be inadmissible in evidence, as not being properly authenticated, in order to have its defects supplied by a new authentication, is not good evidence in law, when, as in the present case, there has been no new order directing another, or the same commission to issue, and when the same commission has never left the files of the Court; and when there has been no service of the interrogatories made upon the defendant, or other opportunity given him to cross such interrogatories; that the return to the commission now offered in evidence, has been pronounced illegal testimony, and is res judicata; and that if plaintiffs desired to take O'Reilly's testimony, they should have issued a new commission, and cannot supply the defects of the first by simply obtaining a certificate such as that offered in evidence on the 1st of May,</p> <p>1851, without any order of Court authorizing an application for the same, and by a proceeding ex parte and in pais.</p> <p>3. That said commission ought not to be received in evidence for the reasons set forth in the Bill of Exceptions, dated 17th January, 1849, and which reasons -are now again urged as objections thereto.</p> <p>But the Court overruled the objections,” etc.</p>

As to the right of plaintiff to maintain the action, plaintiff’s counsel cited Acts 1848, 97. Burbeahaux v. Burbechaux, 7 L. R. 43. 8 L. R. 88. Bailey v. Morrison, 1 An. 523. Johnson v. Runnels, 6 N. S. 622. As to the jurisdiction of the Court below for a tort or trespass committed in Tennessee, Somes et al. v. Barclay et al. 4 An. 63.

<p>Appeal from the Sixth District Court, Parish of West Baton Rouge, Robertson, J.</p>

<p>Appeal from the First District Court of New Orleans, Lea, J.</p> <p>cited: Arsene v. Pigneguy, 2 A. 621; Eugenio v. Preval, 2 A. 181; Josephines.Poultney, 1 A. 324; Smiths. Smith, 13 L. R. 444; Marie Louise s. Marot, 0 L. R. 475; Frank s. Powell, 11 L. R. 500; Thomas s. Genens, 16 L. R. 483; Ideas. Puissant, 7 A. 83 ; Lumsfords. Ooquillon, 2 N. S. 403; Black-man s. Powell, 7 Yerger, 452.</p> <p>It is evident that Srn'ah did not go to Cincinnati with the intention of remaining; and as the Court decided in Idea s. Puissant, 7 A. 83, it would require such intention to operate the freedom of the slave under the laws of Louisiana. See also Jane s. Oarsoro, Opinion Book 22, p. 106.</p> <p>But the status of the slave must be tested by the law of Mississippi, where the owner resided, and where the writing under which she claims her freedom, was executed. The law of that State forbids the emancipation of slaves otherwise than by an instrument in writing duly proved or acknowledged, and proof to the General Assembly of some meritorious act by the slave, followed by an Act of the General Assembly, sanctioning the emancipation, and a compliance by the owner with the conditions imposed by that Act. Hutchinson’s Code, p. 523, No. 75.</p> <p>It has been decided by the Supreme Court of Mississippi, that a deed of emancipation, executed in Ohio by the master, who went there with his slaves for that purpose, and afterwards returned to Mississippi with the slaves, was in fraud of the laws of Mississippi, and totally void, although the master recited in his will the fact that he had executed such a deed, and declared his intention to ratify it, and acknowledged one of the slaves to be his son. Hinds et al. v. Brazealle et al., 2 Howard’s Miss. Rep. 841,42,43. If all these solemnities were in vain because they were in contravention of a law established for wise purposes of public policy, surely a mere permit to go to a free State, cannot be more effectual.</p> <p>The true rule is laid down in the case of the Blame Oraee 2 Ilagg, Adm. Rep. 04, and, although more liberal views once prevailed in Louisiana, we have been compelled to return to the English doctrine. The slave who goes, by the permission of his master, to a free State, does not thereby become free. He merely ceases to be subject to the coercion of his master, so long as he remains in free territory; but the moment he returns voluntarily to his master’s domicil he is again subject to his authority, and resumes his former condition. Actl84G, p. 163.</p>

<p>It is true, that by the Code, the property of the tutor is tacitly mortgaged in favor of the minor from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it. But an interpretation of this provision, independent of other principles of our laws and jurisprudence, is inadmissible.</p> <p>Ordinary mortgages are required to be created by the formal, written consent of the parties, for specific sums, and to be inscribed upon the public records. But the tacit mortgage operates secretly, and by a legal fiction. It is in derogation of common right. It should, therefore, be strictly construed. The propriety of such strict construction is aided by the consideration that the system of tacit mortgages is one which tends to impair public confidence, and check that free circulation of.property which is so conducive to the general prosperity.</p> <p>As against innocent third persons, purchasers, or mortgagees for a valuable consideration, the language of the Code may be properly interpreted as applying to the ostensible property of the tutor, and as not extending to that in which he has only a covert, equitable interest.</p> <p>The law treats minors as a privileged class in certain respects; but its protection is not to be strained to the detriment of the great mass of society, or to the sacrifice of that well-settled rule which regards with favor the rights of an innocent purchaser, and refuses to affect him by a secret equity.</p> <p>It would be a doctrine fraught with the most dangerous consequences to stockholders, and inconsistent with the theory of corporations, to hold that the private knowledge of two Directors, not clothed with any special authority in the premises, and constituting a small minority of the Board—and which knowledge was not disclosed to th‘e Board—should destroy the rights of the Corporation.</p> <p>There is nothing in the Code to limit the minor’s tacit mortgage to the property which stands upon the public records in the name of the tutor. The Article of the Code is general in its terms, and embraces all the property—tous Jes Liens—which can be shewn to belong to the tutor.—Host, J., dissenting.</p> <p>The tutor has himself acknowledged that he placed the property in the name of his sister, to keep it from the minor’s mortgage. He could not do indirectly, what he could not have done directly.</p>

BonforA & Finney contended that “ there was no necessity to insert in the judgment in an attachment suit a clause affirming, or recognizing the creditor’s rights under the attachment,” and cited C. P. 265, TuftSY. Ocvrradine, 3, An. 430. Harmon v. Paul Juge, fils, etal, 6An.768.HobiesY. her Husband, 9 Rob. 118. Gustine v. the Bank of Louisiana, 10 Rob. 418. Sergeant on Attachment, p. 20. Inés y. Sturgis, 12 Metcalf, 462. Dameport v. Tilton, 10 Metcalf, 320.

<p>Appeal from the Fourth District Court of New Orleans, Straidbridge, J.</p>

<p>Appeal from the Fourth District Court of New Orleans, Strawbridge, J.</p>

<p>Appeal from the District Court of the Ninth Judicial District, parish of Point Coupee.</p>

<p>Information for selling spirituous liquors to slaves without consent of masters, &c. XLeld: If the owner of the slave, or person having him in charge, sent the slave to buy, or receive the spirituous liquor from the defendant, for the purpose of inducing the defendant to commit the offence charged in the information—then the act committed was done with the assent of the owner, or person having the slave in charge—and the material ingredient of the offence is wanting.</p>

<p>Where issue has not been joined before the death of the original plaintiff, no judgment can be had lie-fore notice to the defendant of the revival of the suit.</p>

<p>Appeal from the District Court, Sixth District, Parish of Iberville. Burk, J.</p>

<p>In the case of Coffman v. W&Mams, on a sale, Cresvp as principal and Morgan (deceased) as surety, gave a twelve months’ bond for the price of the property. On the 19th of July, 1819, the Sheriff had an execution on the bond, against Cresvp and Morgan, and was about to levy, when, on the same day, Hudson, the attorney at law of Coffman, and the Sheriff, meeting Cresvp, Hudson directed the Sheriff to return the execution, and took Cresup's draft on Fellowes, Johnson <& Co., of New Orleans, payable to Hudson's order, on the 1st of the following November. Hudson endorsed the draft u without recourse,” and forwarded it to Coffman, who kept it “ a long time.” The draft was neither accepted nor paid by F., J. & Co., in whose hands Gresup had no funds. Held: If Coffman did not approve of Hudson's arrangement, he should have ordered a new execution and returned Cresup's draft. 3-Iis long acquiescence discharged the surety.</p>

<p>When all the parties interested in the judgment have not been made parties to the appeal, the appeal will be dismissed. /</p>

<p>The effect of the pact de non aMenando, so far as the party in whose favor it operates is concerned, is, that in contemplation of law, the property remains in the possession of the original debtor, notwithstanding it may have been alienated by him; and those who purchase it, or acquire real rights on it, are presumed to know the titles and incumbrances under which they hold.</p> <p>The mortgagee, in such a case, has a right to proceed by the via executiva, after the alienation, as if the property still belonged to the mortgagor.</p>

<p>The plaintiff was a slave in 1823. Her master was about removing from the District of Columbia to New York, and an indenture of apprenticeship of plaintiff, was made by her father to her master, to bind plaintiffuntil her majority. Her owner executed an act of manumission of plaintiff, and in the year of 1819, entrusted it to a gentleman of this city. Held: It seems as though the act of manumission and indenture were made with a view to the change of residence which followed and most clearly manifest the intention of removing to New York, by the laws of which, in force at the time of the change of residence, it is provided, that any person, not being an inhabitant of that State, who shall be travelling to or from, or passing through the State, may bring with him any person lawfully held by him in slavery, and may take such person with him from the State; but the person so held in slavery shall not reside, or continue in New York, more than nine months, and if such residence be continued beyond that time such person shall be free. The intention to reside in New York, and the actual residence there for, certainly, a year, being proved, the plaintiff became free.</p> <p>The plaintiff’s condition as a free person, could not be affected by the subsequent return to, and residence of her former owner with her, in the District of Columbia, as by a statute of Maryland, of 1796, it is provided that “ it shall not be lawful to import, or bring into the State, by land or water, any negro, mulatto or other slave, for sale or to reside within the State, and any person brought in the State as a slave, contrary to this act, if a slave before, shall thereupon, immediately cease to be the property of the person or persons so importing, or bringing such slave within the State.</p>

<p>"Where an appeal is taken by the plaintiff, and the names of the warrantors, who are immediately interested, do not appear, either directly, or by implication in the appeal bond, the appeal will be dismissed.</p>

<p>A purchaser at sheriff’s ksale can compel the recorder to erase from his books of record a judicial mortgage, the registry of which is posterior in date to that of the mortgage under which the property was sold, so far as the same bears upon the property purchased.</p>

<p>Appeal from the District Court, Fifth District, Parish of Terrebonne, Randall, J.</p>

<p>Appeal from the District Court, Fifth District, Parish of Terrebonne. Randall, J.</p>

<p>A front proprietor on the river cannot be held bound to make reparation for the consequences of an accident, unless he was in fault when it occurred.</p> <p>The Act of 1829, relative to Roads and Levees, so far as the Parish of Pointe Coupee is concerned, was repealed by the Act of 8th February, 1831.</p> <p>In cases of flood, as in those of conflagration, the rule is, that services rendered voluntarily to preserve another man’s property from destruction, are presumed to be gratuitous.</p>

<p>Notarial Certificate of notice of nonpayment, put in tlie Post Office at Baton Rouge, was headed as follows: “Baton Rouge, May 19, 1852. Mr. JoJm Buhler—Parish of West Baton Rouge—Lobdell’s Store Post Office, La.” It was objected that this was no proof that the letter to Buhler, on the outside, was directed to any place. Meld: that the Certificate was sufficient.</p>

<p>Constitutionality of a fine imposed by the Police Jury of West Baton Rouge affirmed.</p> <p>The Supreme Court is without jurisdiction to decide an exception taken to the trial of a cause before a Justice of the Peace on the ground that the Justice was interested in the cause.</p>

<p>Plaintiff, for months, left a loaded gun, resembling a walking cane, in her yard. It was taken up by a boy, about fourteen years old, belonging to defendant—in whose hands it went off and killed the plaintiff’s slave. Plaintiff sued for damages. Hdd: It was the'plaintiff’s negligence whioh was the occasion of the accident, and this is sufficient to prevent her recovery.</p>

<p>When, by the act of the defendant and the acquiescence of the plaintiff, an action of boundary is changed into a petitory action—the defendant in the original suit becomes the plaintiff in the petitory action.</p> <p>An appeal will not be entertained, in a case where there are warrantors, unless the warrantors, are made parties in the appellate Court.</p>

<p>Appeal from the District Court, Tenth District, Parish of Carroll.</p>

<p>Since the adoption of the Code of Practice, a judgment against the original debtor is no longer necessary to support an action of mortgage, even when the /oia executma is resorted -to. The only requisite in such case is an amicable demand from the debtor, or his heirs, thirty days before filing the petition.</p>

Fa/rrrn’, J. Suit on the following promissory note. $3,543. Pointe Coupee, ce 20 Juin, 1849.

<p>Appeal from tho District Court, Eighth District, Penn, J.</p>

<p>[Same principle as K A. Bemiet, Tutrix, v. Sa/nie.]</p>

<p>Appeal from the District Court, Sixth District, Robertson, J.</p>

<p>When the obligation of a bail bond is for the prisoner to appear and remain until discharged by due course of law, the sureties are bound, though the prisoner be indicted for an offence different from that for which he was committed.</p>

<p>Appeal from the District Court, Tenth District, Parish of Carroll.</p>

<p>Appeal from the District Court, Fourth District, Parish of West Feliciana, Berldns, J.</p>

<p>When at the time of the institution of a suit to rescind the sale of a slave, the vendor resides in Baton Rouge, and the slave is in a dying condition in New Orleans, no tender need he made.</p> <p>It seems that when the vendor refuses peremptorily to rescind the sale of a slave, no legal tender is necessary.</p>

<p>The purchaser oí a tract of laud cannot refuse to pay, on the ground that the vendor’s title has not been confirmed by the United States.</p> <p>The purchaser is not entitled to a diminution of the price where the deficiency in the land does not exceed one-twentieth of the tract sold.</p>

<p>Letters of administration malee full proof of the party’s capacity until they are revoked. They must have their effect, and the regularity of the proceedings on which; they issued cannot be examined collaterally.</p> <p>Note alleged to be given to plaintiff, as administrator, for the price of an improvement, or pre-emption on public land—-and that plaintiff contracted to make defendant a title thereto. Held: Such a contract could only bind plaintiff personally.</p>

<p>The tax Imposed by the town of Baton Rouge upon public exhibitions is a mere police regulation, necessary to the order and the very existence of towns and cities, and not restrained by any provision of the Constitution of the United States.</p>

<p>Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirling, J.</p>

<p>When a sale is made in writing, which contains no receipt for the price, nor acknowledgment of . of payment—the presumption will be that the money was not paid.</p>

<p>IN <& the matter of an application for a Mandamus in the case of Baeh, Barnett Go. y. A. Leopold.</p>

<p>Appeal from the District Court, Sixth District, Parish of East Baton Rouge, Burk, J.</p>

<p>IN v. the matter of John Weisse, praying for a Mandamus, in the case of Weisse Magdaline Qinder, his wife.</p>

<p>Appeal from the District Court, Seventh District, Parish of West Feliciana, Stirling, J.</p>

<p>APPEAL from the District Court, Sixth District, Parish of East Baton Rouge, Robertson, J.</p>

<p>When a married woman, not separated in property, is engaged in trade, she will be presumed to trade oh the funds of the community in the absence of proof to the contrary, and the assets in her hands will be liable for community debts.</p> <p>The profits of the labor of husband and wife belong to the community.</p>

<p>Appeal from the District Court, Seventh District, Stirling, J.</p>

<p>THIS case should have followed that of the same Plaintiff v. The New Orleans Insurance Company of New Orleans. Ante p. 3. It is inserted here, because the argument for a re-hearing has been deemed of sufficient importance to be published.</p>

<p>Appeal from the Ui,strict Court, Seventh District, Parish of West Feliciana. Sterling, 3.</p>

<p>There is no objection to the insertion of several offences of the same nature in an indictment in separate counts, though differing from each other in degree and punishment, wjien these offences arc all felonies.</p> <p>The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment coutains charges which are actually distinct, and which grow out of different transactions.</p> <p>The term felony means a crime of great magnitude, and subject to an infamous punishment—death, or imprisonment at hard labor.</p> <p>In an indictment against several, where the offence is such that it may have been committed by several—they are not of right entitled to be tried separately—but are to be tried in that manner only when the Court on sufficient cause, may think proper.</p> <p>The Supreme Court cannot review, in criminal cases, the acts of a Judge of the first instance, resting in his discretion.</p> <p>In an indictment against several, each defendant is entitled to his peremptory challenge. This is not a right to select, but a right to reject—and no one defendant can complain that jurors not challenged by him, have been challenged by a co-defendant.</p> <p>The improper reception of parol evidence offered by the State, of the contents of a policy of insurance, is cured by the subsequent introduction of the policy by the defendant.</p> <p>It is a general rule that whenever the credit of a witness is to be impeached by proof of anything that he has said, declared, or done in relation to the cause, he is first to be asked, upon cross-examination, whether he has said, declared, or done that which is intended to be proved, in order that he may have an opportunity of explaining that which is prima facie contradictory.</p> <p>The title of an Act cannot control the plain meaning of the words in the body of the Statute.</p>

<p>Plaintiff made opposition to the sale of two slaves, seized by Lewis, Sheriff, in the suit of the Zfiiion, Bmxh v. Hereford, in the District Court of East Baton Rouge, in which Court he claimed damages against the defendants—alleging the slaves to be his property. Defendants excepted to the jurisdiction, on the ground that their domicil was in New Orleans.</p> <p>By the Court. The plaintiff’s claiming title to the slaves seized, the opposition was properly made by petition to the Court from which the order issued, as required by Article 898, of the Code of Practice; and Article 400, of the same Code, expressly provides, that if the sale has not been enjoined, the opposition shall not prevent the Sheriff from selling the property under seizure, but in such case he shall be personally responsible for all damages which the sale may occasion the intervening party, anil the Sheriff shall have his recourse against the party who has obtained the seizure.</p> <p>When the Sheriff sells property, to the sale of which opposition has been made, the opponent can recover the property from the purchaser. His claim against the Sheriff is for the damages which the sale may have occasioned him—not for the value of the property sold.</p>

<p>Appeal from the District Court, Tenth District, Perlcins, jr. J.</p>

<p>Where, in a judgment rendered, the amount is left in blank in the record, the appeal will be dismissed.</p> <p>A testator can leave to his concubine only movables to the value of one-tenth of his estate.</p> <p>An heir cannot contest the validity of a legacy, when sufficient remains, after payment of the legacy, to pay him the full amount of his interest in the succession.</p>

<p>It clearly results from the will of OressiveU that, in the absence of his universal legatee, the testator intended to give his executor the seizin of all his property.</p> <p>The statute of 1837 is highly penal, and when, under it, an executor is dismissed, and compelled to pay 20 per cent, he will not be deprived of his commissions.</p>

<p>Appeal from the District Court, Seventh District, Sterling, J.</p>

<p>Suit on a promissory note payable to Hdchard OlMrvpiUt administrator, &c. Held; Qlmypiit might sue in his individual name.</p> <p>An attachment suit in Mississippi, where nothing is shown tó have been made, is no bar to a personal action here.</p>

<p>Case remanded because of eo) parte amendment of Sheriff’s return.</p>

<p>Appeal from the Second District Oourt of New Orleans, Lea, J.</p> <p>cited Code, 2265.</p> <p>—cited 3 A. 36; ibid, 172; 1 Starkie on Evidence, p. 208, 367; 1 Greenleaf, § 522-3, 532-3, 535-6, 189, 180; Bull, N. P, 232; 4 Dali. 120 ; 2 Doug. 517; 1 Doug. 56; 6 Rand. 865 ; Vermont, 317; 4 Rawle, 273 ; 1 How. Miss, 53.</p>

<p>Where the declarations of the defendant concerning the plaintiff appear to have been uttered without malice, and under circumstances from which no malice is in law implied, they carry with them no pecuniary responsibility.</p>

<p>Appeal from the District Court, Tenth District, BerJdns, yr., J.</p>

<p>Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirling, J.</p>

<p>APpeal from the District Court, Seventh District, Parish of West Feliciana, Stirling, J.</p>

<p>Appeal from the District Court, Eighth District, Baylies, J.</p>

Reynolds, J. Action for loss sustained on the purchase of a number of bales of cotton.

<p>The protest of a bill of exchange stated that the bill was presented for payment at the oflce of the drawees, to a gentleman styling himself book-keeper of the house, and who answered that he was duly authorized to say that the bill would not be paid. Held: This was a sufficient presentment and it was not necessary that the notary should certify that the drawees were at the time absent from the counting room.</p> <p>The relations of drawer and acceptor create no right to call the acceptor in warranty.</p>

<p>Appeal from the Second District Court of New Orleans, Lea, J.</p>

<p>Appeal from the District Court, Tenth District, Parish of Madison.</p>

<p>Appeal from the District Court, Tenth District, Perldns, jr.,- J.</p>

<p>Appeal from the District Court, Seventh District, Parish of East Feliciana. Stirling, J.</p>

Appellant’s counsel maintained that the legacy was by universal title, and that the legatee was bound to pay her proportion of the debts of the testator. Code, 580, 581. The will contains a substitution. Radial v. Radial, 1 L. R. 118. Under it 1st. The children of Cecile did not take the naked property on the death of the testatrix. 2d. There was no one in esse, clearly designated by the will, to take the naked property on the death of the testatrix.

<p>APpeal from the Second District Court of New Orleans, Lea, J.</p>

<p>Appeal from the Second' District Court of New Orleans, Lea, J.</p>

<p>Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirrling, J.</p>

will of john McDonogh. In the Name oe God, Amen. Held: by it, and remain its property ;-—The Title deeds of purchase, by which said Institution shall acquire said Real Estate, shall set forth, that it is made from Funds of this Bequest, and that said Real Estate cannot be sold, or alienated, by said “Society for the relief of destitute Orphan Boys.—The Funds, (when accumulated,) as…

<p>The purchaser of property, under a probate sale, who assumes the payment of a mortgage resting upon the property, cannot urge that the sale cancelled the mortgage; nor are such purchasers third possessors, in the sense which would require the holder of the mortgage claim to pursue his rights under the hypothecary form of action.</p>

<p>APPEAL from the District Court, Tenth District, Parish of Carrol, Gopley, J.</p>

<p>Caldwell was appointed curator of the succession of Gates. He filed a tableau which was opposed by Maries, through T. A. Bartlette, attorney at law, Marks claiming to be a creditor as vendor of goods to one Johnson, for whom Gates became surety, as Maries alleged. The evidence was altogether parole. Maries’ claim was rejected, but by consent of counsel a judgment of non-suit was entered. Subsequently, Caldwell absconded, anil Walker applied for the curatorship, through Bao'tlette, was appointed, and obtained judgment against Leefe, Caldwell’s surety. Execution issued against Leefe, and the return showed that before sale of the property seized, the case u was settled by the parties.” During the summer vacation, Walker filed a tableau recognizing Marks’ claim, which, not being opposed, was allowed; but the judgment of homologation was never signed. Almira Gates, the widow of Gates, sued to set aside the homologation, charging collusion between Ma/rlcs and the curator, Walker. By the Cohort, the recognition of Marks’ claim by the curator was collusive. WaZker obtained the curatorship for the sole purpose of obliging Marks, and of enabling him to make his claim. It was an abuse of the forms of legal proceedings for the curator, under the circumstances, to place upon the tableau a claim which had been rejected, after trial before the Court.</p> <p>Where the return of an execution against the surety of a defaulting curator shows that the case was u settled by the parties,” the creditors, in the absense of further explanation, have a right to consider the amount of the execution as having been paid in cash.</p> <p>The wife of the deceased, though she had lived apart from him, was not judicially separated from bed and board, and she had an interest in his estate, at least for the purpose of presenting her claim for the marital portion for adjudication.</p> <p>It seems that a Judge, in whose Court the -mortuaria are pending, mayproprio motu entertain an inquiry into an abuse of the form of legal proceedings in his own Court, such as this case pivsents.</p>

<p>Appeal from tbe District Court, Third Judicial District, Olamh, J.</p>

<p>Appeal from the Second. District Court of New Orleans, Lea, J.</p>

<p>The Supreme Court is without jurisdiction when the matter in dispute does not exceed three hundred dollars.</p>

<p>Appeal from the District Court, Third District, Parish of Jefferson, Glm'lee, J.</p>

<p>Appeal from the First District Court of New Orleans, Larue, J.</p>

<p>Property purchased with the paraphernal funds of the wife is her separate property—and not liable for the debts of the community.</p> <p>It is not necessary that an investment of paraphernal funds in the name of the wife should appear, as such, in the act by which the property is acquired. The wife, in all cases, would be bound to show the reality of the sale to her dehors the act—and the same proof would be necessary in order to make the acknowledgment in the act binding upon her.</p>

<p>The supervisory power of the Supreme Court, through writs of Mandamus, is limited to those cases where its exercise is incidental to and in furtherance of its appellate jurisdiction.</p>

<p>Appeal .from the Third District Court of New Orleans. Kennedy, J.</p>

<p>The plea of autrefois eoiwiet is a special plea in bar of the prosecution pending; and in order to plead the same with effect, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful upon a sufficient indictment.</p> <p>Where the indictment alleges that the prisoner had fled from justice, the proclamation of the Governor offering a reward for his apprehension, was admissible in evidence to sustain the allegation. Where the portal stroke is given in this State, but the death occurs in the State of Mississippi, the crime maybe prosecuted in the parish where the mortal stroke was given.</p> <p>When the wound was inflicted on board of a vessel in Lake Borgne, but moored to a wharf in the parish of St. Bernard, the Courts of that parish can entertain jurisdiction over the offender.</p>

<p>Farties who obstruct the use of the public road are liable in damages.</p>

<p>APPEAL from the Eirst District Court of New Orleans.</p> <p>cited, ex pw'te, Eennen, 13 Peters, 259; Bfieholson and another v. Thompson and another, 5 Rob., 367; The State v. Percy, 5 A., 282; Kelly v. Gilly, 5 A. 534.</p>

<p>In an action against a common carrier for damages to goods, the proof must be clear and certain, to relieve him from liability, that the damages did not arise while the goods were in his hands; for the presumption is against him, not only from the terms of the bill of lading, but from the policy of law.</p> <p>In suits against common carriers the testimony in their behalf of their devks and servants, must be received with great caution.</p>

<p>Appeal from the Second District Court of New Orleans, Lea, J.</p>

<p>Appeal from the Third District Court of New Orleans, Kennedy, J.</p>

<p>Appeal from, the District Court, Third District, Parish of Jefferson, Gla/rleet J.</p>

<p>Where the record shows an appointment by the Court of an attorney to defend the accused, the Supreme Court will not inquire whether such attorney has been duly licensed to practice law.</p> <p>In an indictment against a slave under the 54th section of the Act of June T, 1806, it is not necessary to charge the intent with which the act was done.</p> <p>On the trial of slaves in the tribunals established for that purpose, the law does not require an observance of the technical rules which regulate criminal proceedings in the higher, Courts.</p>

<p>Appeal from the Second District Court of New Orleans, Lea, J.</p>

<p>APPEAL from the Eiftli District Court of New Orleans, Buchanan, J.</p>

<p>Appeal from the First District Court of New Orleans, Lcm'ue, J.</p>

<p>An attachment will defeat a claim for advances, when the attachment has been served before the receipt of any bill of lading or letter of advice.</p>

The following printed arguments were filed: The defendant, in his written argument, has labored to show that the insolvent act, so far as he claims the benefit of it, is a mere modification of the… Held: that so far as the Maryland Act, and proceedings under it, operated to protect the property of Boyle from Zacharie's execution, they were invalid and in contravention of the constitution of the United States.

filed the following brief: The plaintiffs claim $417, which they allege to be due to them for the amount of a tax assessed on the defendant’s real estate lying within their jurisdiction.

<p>The 35th section of the Act of 23d February, 1852, provides a summary mode of proceeding by the city of New Orleans against defaulting tax payers—and substitutes a constructive notice by advertisement, in place of personal citation. This, being in derogation of common right, must receive a strict construction, and will not? therefore, be applied to the collection of taxes assessed before the passage of the Act.</p>

<p>The lessor may enforce his privilege on the furniture in the leased premises—though the lessee reside in another parish.</p> <p>The failure of the lessee to pay the rent authorizes the lessor to swear that he has good reason to apprehend that the property will be removed from the premises leased.</p>

<p>Appeal from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>If the possession of property in Louisiana has commenced by force or fraud, practised within the limits and jurisdiction of a sister State, and in opposition to the authority and judicial process of her Courts, such property must be returned to the State from which it was thus taken, and the parties remitted to that jurisdiction to settle their rights.</p> <p>The release by ihe plaintiff in attachment in Mississippi, of any claim on the Sheriff resulting from his allowing t|ie slaves attached to remain with the person holding possession of them, in no way invalidates the seizure.</p> <p>In Mississippi the Sheriff who seizes slaves may retain possession of them, as well through the agency of a keeper, or an overseer, as by one of his deputies.</p>

<p>All the creditors of an insolvent, privileged as well as ordinary, should be made parties to the tableau* and accordingly notified. In a concurso, all the creditors of the insolventare considered as plaintiffs and defendants, and their respective claims, whether privileged, mortgage or ordinary, must be settled contradictorily on a tableau of distribution. A separate tableau among a particular cla^s of creditors cannot be viewed but as irregular, and not sanctioned by law.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>Appeal from the Third District Court of New Orleans, Kennedy, J.</p>

<p>The failure of a tenant to pay the rent, authorizes the landlord to make affidavit that he has good reason to fear the property may be removed from the premises leased.</p> <p>The landlord has a lien on goods on storage to the amount of storage due.</p>

<p>APPEAL from the First District Court of New Orleans, Lame, J.</p>

<p>Appeal from the First District Court of New Orleans, La/rue, J.</p>

<p>Appeal from the Fourth District Court of New Orleans, Strawbridge, J.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buchanan, J.</p>

<p>Appeal from the Fourth District Court of New Orleans, Reynolds, J.</p>

<p>Appeal from the Third District Court of New Orleans, Kennedy, J.</p>

<p>Action against three defendants to annul a will and for damages. Each filed an exception that there was a misjoinder of actions. 0. specially excepted on the ground that his co-defendants were made parties for the purpose of depriving him of their testimony. The exceptions were sustained, as to the co-defendants, and the suit dismissed as to them—but the plaintiff’s right to proceed against C. was maintained. Plaintiff appealed—and on motion to dismiss the appeal because 0. had not been made a party to it—it was Held: that 0. should have been made a party. The dismissal of his co-defendants from the suit is a judgment which he has the greatest interest in maintaining, as he specially excepted that they Were made parties in order to deprive him of their evidence. Appeal dismissed.</p>

<p>l'he revocatory action cannot be exercised by individual creditors until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit for liquidating the debt, brought against the original debtor. Code, 1967.</p>

The objections of the defendant on this point seem to bo pointed against the power of the officers of the Government to collect the money claimed for the use of Morgan's sureties.

Arts. 2663, 2686, declare that the lessor is bound to make repairs, such as were necessary to be made in this case. The lessor cannot fulfill this obligation if the lessee do not notify him of the necessity, as the former knows nothing of the condition of the premises. Accordingly art. 2604 makes it the duty of the lessee to notify the lessor—to call upon him to make them.

<p>Zivmidais v. MmiioypaMty Do. 2,16 La. 609. Iroemdais & Demid v. Same, 5 Ann. 8. MmvieipaMy Do. 2». Palfrey and Diques et al. v. Bugao et al.,T Annual, affirmed.</p>

<p>Plaintiffs bought at Sheriff’s sale a plantation and slaves, on the 7th January, 1843. The Recorder certified that a mortgage, inscribed 13th October, 1848, existed on the property. Plaintiffs sued the Recorder to compel him to erase the mortgage so far as their property was concerned—and obtained judgment. By the Court—The judgment appears to us perfectly in conformity to the rights of the parties.</p>

<p>Where a contract of lease expressly excludes the right of sub-leasing, the premises cannot be leased without the consent of the lessor.</p> <p>It is not necessary that the lessor should take any notice of the contract of sub-lease, or seek to inter' fere with it any further than it interferes with his rights.</p> <p>Article 260P) of the Code prohibiting the lessee to sub-lease, is to be construed against the lessee.</p> <p>Where the lessee sub-leases, without the lessor’s consent, such sub-lease does not affect the lessor’s right against his immediate lessee, and the lessor cannot be compelled to resort to an action to rescind the lease, and may exercise his privilege on the property in the leased premises,</p>

The respondent and appellant, W. M. OrensTum, was appointed Register of the Land Office at Baton Rouge on the 9th November, 1851, during the recess of the Senate, to fill the unexpired term of Loucks. Held: in opposition to the elective principle established by the new Constitution?” If the last clause of that Article was intended to apply only to such officers, why was not the distinction made? Why were the most general and comprehensive terms used?

<p>Action on a written contract, leasing “ the ground floor oí the brick building on the corner of Lafayette and New Levee streets,” &c. The answer set up, that all the premises leased were not delivered. Parole evidence was admitted “ of the acts and declarations of the defendant showing that the apartment occupied by him was the only part of the ground floor to which he was entitled under the contract, according to the understanding of the parties.” To the admission of this evidence a Bill of Exceptions was taken. BytJieCow't: The objection to the admissibility of the evidence is not tenable. The Code of Practice, art. 829, provides: “when the defendant in his' ^answer alleges, on his part, new facts, these shall be considered as denied by the plaintiff—therefore neither replication nor rejoinder shall be admitted.” Under this provision it was perfectly competent for the plaintiff to show in what manner the delivery of the property had been effected, particularly as the defendant had put the matter at issue by his answer.</p>

<p>Appeal from the Fourth District Court of New Orleans, Reynolds, 3.</p>

<p>The Act of 1820, which provides that any person who takes possession of a vacant estate, or part thereof, without being duly authorized to that effect, &c., is not applicable to the heir of an estate who has the right, if he chooses, to take possession of the estate, and dispose of it as he pleases, subject only to the legal restraint of the creditors, and under the responsibility of paying the debts of the succession.</p> <p>The sale of property belonging to an estate to which the seller has a simulated title, and the appropriation of the price to his own use—is such an acceptance of the succession as makes him liable as heir for the debts.</p> <p>Article 985 of the Code is a negative, pregnant with the affirmative, that if the heir had no title to the property sold by him other than that of heir, and no right to suppose that the property did not belong to the succession, he commits an act manifesting the intention to accept when he disposes of the property. A simulated title confers no right whatever.</p>

<p>It is the duty of the appellant to see 1hat the record contains all the evidence on which the case was tried. If he neglect so to do, the Court is without the means of reviewing the case, and the appeal will be dismissed.</p>

<p>Appeal from the Eifth District Court of New Orleans, Buchanan, J.</p>

<p>Intervenor, as agent of one Creme, a creditor of Watson, received two horses from Watson, with the understanding that Intervenor should sell them, and if the horses sold for more than Creme's claim, the surplus should be paid to Watson—if for less, Watson should make up the deficit. On an attachment against Watson, the horses were seized, and the Intervenor claimed them as his property. By the Court:—It cannot beheld that the intervenor owned the horses either by sale, or dation engagement, there being no price—no sufficient consideration to sustain such a transfer. Nor yet can he be regarded as pledgee—for the delivery not being accompanied by an act either in public form, or under private signature, did not invest him with the right of causing his debt to be satisfied by preference.</p>

<p>Where an amended petition, which changed materially the action, was never served on the defendant, and its allegations never put at issue—it will not be considered as constituting any part of the pleadings.</p> <p>In suits instituted by plaintiffs against one^ Weber, an attachment was levied on a lot and buildings in possession of defendants. Defendants intervened, and claimed the property, by purchase, from Weber. Plaintiffs answered that the sale to defendants was fraudulent and simulated. Judgment was rendered in favor of plaintiffs for the amount of their claims, “with privilege on the property attached.” Execution was issued, and from the Sheriff’s return it appeared that the property attached was adjudicated to the plaintiffs. Defendants refused to give up the property, and this action was brought for property.</p> <p>By the Court: It does not appear that either of the defendants was ever notified of the sale, and as. the plaintiffs allege, they have continued to occupy the premises since the sale. It must be conceded that the proceedings in those suits were exceedingly loose and irregular. There is nothing in the record which shows that the claim of the intervenor was adjudicated upon, or that it was abandoned; neither does it appear that the intervenor had any knowledge of the judgment rendered against her vendor, recognizing the attaching creditor’s privilege on the property. In the absence of such proof, and in view of all the circumstances disclosed by the record, it is clear that the rights of the intervenor must stand unaffected. So thought the District Judge, for his judgment was chiefly based on the ground that the plaintiffs were bound to resort to the revocatory action.</p>

<p>Appeal from the Fifth District Court of New Orleans, Buohanan, J.</p>

<p>Appeal from the Pourth District Court'of New Orleans, Reynolds, J.</p>

<p>Appeal from the District Court, Fifth District, Parish of Assumption, Randall, J.</p>

<p>Appeal from the District Court, Parish of St Mary, Nicholls, J.</p>

<p>Appeal from the District Court, Parish of Lafayette.</p>

<p>Suit on a note expressing that it was given for a fee in a certain cause. The Court held that evidence going to show that the note was given for other considerations than those specified on the face of it, was properly rejected.</p>

<p>Appeal from the District Court, Parish of St. Martin, YoorMes, J.</p>

<p>Suit on a promissory note. Plea, prescription. Plaintiff had brought suit previously; was called and not appearing, was nonsuited. By the Court: In such a case, at least when unex. lained, the Article 3485, C. 0. applies, and the interruption is considered as not having occurred.</p>

<p>Action by collateral heirs of the wife to set aside an act emancipating a slave made by the husband and, wife. By the Court: As head and master of the community, the husband has clearly the right, during its existence, to alienate the property belonging to it, and even to dispose of it by gratuitous title, if not made in fraud, or to the prejudice of the wife.</p> <p>Arts. 174,177 of the Code authorize a slave to make a contract for his emancipation.</p>

<p>Where there is nothing in the record to show that the matter in dispute exceeds three hundred dot lars, the appeal will be dismissed.</p>

<p>Art. 620, 0. P., which requires the decree of the Supreme Court to be recorded on motion mopeti Cow't, is repealed by the Act of 1852, entitled “ an Act relative to the power of Clerks of District Courts, the parishes of Orléans and Jefferson excepted; ” which confers upon the Clerks of District Courts, power “ to receive, file and record all mandates and decrees rendered by the Supreme Court in causes taken up by appeal from their respective Courts, and to issue all legal process under such mandates and decrees of the Supreme Court.</p> <p>The position is inadmissable that the formula “ ne varietur ” on a note, makes the equities between the original parties binding on the endorsees.</p>

<p>Appeal from the District Court, Parish of St. Mary, Nioholls, J.</p>

<p>Plea of prescription having been filed in the Supreme Oourt, the case was remanded to enable plaintiff, if possible, to show an interruption.</p>

<p>In an hypothecary action against a third possessor, Articles 69 and 70 of the Code of Practice, and Article 8365 of the Civil Code, require no other formality than the plaintiff’s affidavit that he had demanded payment of his debtor thirty days before presenting his petition for an order of seizure and sale.</p>

<p>Appeal from the District Court, Parish of St. Martin, Voorhies, J.</p>

<p>A creditor with a tacit mortgage is not bound to follow the proceeds of the sale of the property in the hands of the Sheriff, and enjoin him from paying them over: he may pursue the property itself.</p> <p>Where the amount due by the husband to the wife has been fixed by a judgment obtained contradictorily with a creditor of the husband, such judgment is res judicata as to the amount due by the husband to the wife, as well against the assignees of the creditor as the creditor himself.</p> <p>A wife, by the hypothecary action, sought to make property, which had been bought at a sale provoked by a creditor of the husband, liable for her claim. By the Gom't: Under Article 711 of the Code ot Practice^ such a privity exists between the purchaser aDd the suing creditor, that the purchaser may call on the suing creditor to appear in the suit and defend him, or directly avail himself of any legal or equitable defence by which the suing creditor might himself oppose the hypothecary action.</p> <p>Where after a judgment obtained by the wife against the husband for a specific amount, a public act has been made, signed by the husband and wife, fixing the sum due her for dotal and paraphernal rights at that established by the judgment—such public act is an estoppel to the wife’s claiming from the husband, as against his creditors, a larger amount. Third persons have a right on the faith of the public act, in connection with the judgment, to consider themselves secure in purchasing property of the husband free from all claim on the part of the wife, except for the balance which, by the act, appeared to be due her.</p>

<p>Cause remanded because continuance should have been granted.</p>

<p>Appeal from the District Court, Parish of St. Landry, Overton, J.</p>

<p>Action to annul a nuncupative will by public act. It was proved that one of the three witnesses to the will was not present when it was written by the notary. Meld: 'ihe will was null and void. Under the Spanish laws marriage could be proved by reputation.</p>

<p>Appeal from the District Court, Parish of Vermillion, Voorhies, J.</p>

Mary, VoorMes, J. Bringing slaves into the State to defeat the rights of property in other States, always discountenanced. Frierson v. Irwin, 5 A. 530. A purchaser can acquire no greater title than his vendor had. Hopkins v. Van Winkle, 2 A, 143 ; 4 A. 52; McGregor v. Bull, 4 A. 290 ; Walker v. Municipality No. 1, 5 A. 10.

<p>Appeal from the District Court, parish of Vermillion, Yoorhies, J.</p>

<p>Article 127 of the Constitution of 1845, does not restrict the power of School Directors in the imposition of taxes under the Act of 8d May, 1847.</p>

<p>Appeal from the District Court, Parish of St. Landry, Oushman, J., presiding.</p> <p>The general principle, that when the principal obligation is prescribed, the acccessory falls with it, is one which will not be controverted when the property mortgaged remains in the possession of the original obligor. But it is respectfully submitted, that when the property goes into the hands of a third person, having notice of the incumbrance, and against whom the hypothecary action is brought within the time for prescription, the mortgage becomes, as it were, isolated from the principal obligation, and is more particularly in contact with the right of property of the third possessor. In other words, though the notes executed by P. II. Glaze may be prescribed, that prescription does not carry with it the extinction of the mortgage, but that prescription alone can avail which the third possessor could set up against an adverse claim to the property itself. I will not be charged, in-urging this doctrine, which I believe to be the true one—the only one resting upon the immutable principles of eternal justice—with confounding the principles of modern jurisprudence with those which prevailed in the days of the law Gum Notissimi. This law, which fastened the effect of the mortgage upon the mortgagor, when the mortgaged property had remained in his possession, though the personal action against him was barred, was clearly irrational and in conflict with the maxim which we find in the Roman Law itself—that with the principal obligation perishes the accessory. In France it is provided (O. N., Art. 2180) that the debtor acquires the prescription of the mortgage, as to the properly which remains in his hands, by the time fixed for the prescription of the action which gives the mortgage or the privilege. Thus, in that case, the mortgage—the accessory—follows the fete of the principal obligation. But not so, when the mortgaged property passes into the hands of a third party. Grenier, in his Traite des Hypotheques, Yol. II., No 51Ó, tells us:—</p> <p>L’hypothéque se present par lo méme laps de temps quo l’obligation principale, lorsque l’immcuble aff'ectc est resté on la possession du débiteur; mais lorsque cet immeuble passe dans d’autres mains, l’hypothéque le suit; elle s’isolc, pour ainsi dire, de l’obligation, et se trouve plus particuliéreinent en contact avec le droit de propriété du nouveau posscsseur. Ce u’était done plus dans ce cas, le temps régle pour prescrire l’obligation, mais bien colui fixé pour prescrire la propriété, qui devait servir de base au législateur pour déterminer la prescription de l’hypothéque ; aussi, l’art. 2180 porte, &c.</p> <p>Troplong, in his Droit Civil Explique, verbo Hypotheques, Vol. IY., page 44, No. 878, says:—</p> <p>Dans le ca¡s ou la prescription est opposée par un tiers détenteur de l’immeuble hypothéqué, on suivait, d’aprés le droit romain, les principes gónéraux en matiére de prescription. Le tiers détenteur prescrivait par dix et vingt ans lorsqu’il avait titre et bonne foi, ou par trente ans lorsqu’il était de mauvaise foi. O’est aussi ce qui est décidé par notre article. Le tiers détenteur prescrit contre l’hypothéque par le méme laps de temps qu’il peut prescrire la propriété.</p> <p>It results from this reasoning, that when the property mortgaged goes out of the hands of the mortgagor, the creditor has two actions; one, his personal aotion against his debtor, and the other, his hypothecary action, against the third possessor, and his rights against each become distinct and independent. He may interrupt prescription in one case, though he may have suffered it to run in the other-. Is there any textual provision in our code which clashes with the doctrine contended for-, and which prevails in France ? It is true our code declares that the mortgage is accessory to a principal obligation, of which it is to secure the execution, and that when the principal debt is extinguished, the mortgage disappears with it. Such was the principle of the Roman law, and such is now the principle in France. True, the article of the French code restricts the principíete cases in which the property mortgaged'has remained in the hands of the mortgagor, and our code docs not so provide in express terms. Must we, then, because no distinction is expressly made, say that the Legislature intended that none should bo made, or shall we adopt a more rational system, and go back for information to those countries which have had similar laws for centurics before they passed to us?</p> <p>Does the language of the Code (Art. 3252) bear out the defendant in the position assumed by his counsel, that this action cannot stand, because, first, the notes being proscribed, the mortgage falls with it, and secondly, because the mortgage was not reinscribod within the time required by law. Article 3362 of the Code provides that “ Creditors who have either a privilege or mortgage on immovable property or slaves, may pursue their claim on them in whatever hands they may happen to pass, to be paid out of their proceeds according to their rank, provided that their titles have been registered according to law.”— Plaintiff’s mortgage having been registered according to law, his right of action against the defendant was areal right which attached the moment the notes which he held matured, the slaves having gone into defendant’s possessionin 1841. (10 L. R. 496.) In 1843 the plaintiff brings his action to subject the slaves to the payment of the mortgage, and Patrick S. Glaze having, years before, removed to Texas, a bankrupt, no step is taken against him personally on the notes. In this view of the case, it is admitted that if the plaintiff had taken no action under the mortgage before the notes were prescribed, his hypothecary action could not stand; but having commenced his action in 1845, is the mortgage gone? Under Article 3362 of the Code, the plaintiff in 1845 commenced the pursuit of his claims on these slaves in the hands of the defendant. At that time, at least, it will be conceded, no prescription could be opposed to his action. After the amicable demand, and notice to him as their possessor, John A. Glaze, was bound, under Article 33G3 of the Code, to pay the debt, or relinquish the property. He did not do it. The plaintiff, by his suit, then demands that the slaves mortgaged be seized and sold to pay his claim. This right he certainly had, and having exercised that right against John A. Glaze the third possessor of the mortgaged property, the only person against whom the right could be exercised, is it possible that the plaintiff should have now lost that right, because there was some delay in bringing that right to a final issue ? Is not this confounding the right with the exercise of the right? And if you say that prescription has run, whilst the right, guarantied by Article 3362, was asserted in the only legal .manner that it could be—that is, by citation—what becomes of Article 3484 of the Code? Is the language there used mere inanity, having no meaning at all? Is it a mere lure which the Code holds out to the creditor, when it tells him in express terms, “ A legal interruption takes place when the possessor has been cited to appear before a court of justice on account either of the property or of the possession ?” But I may be told that this operates an interruption of the prescription by which property is acquired, but not of the prescription by which debts are discharged. I answer that the causes which interrupt prescription in the two cases are the same. (C. C., 3516.)</p> <p>I know that it has been held again and again, that the extinction of the principal obligation by prescription, payment, novation, or otherwise, operates a release of the mortgage. But all the decisions I have read on the subject, are confined to cases where the hypothecary action had not been instituted before the extinction of the principal obligation by prescription. This is the first time, then, as I am aware, that the question comes up for solution. Our Code contains no express disposition on the subject. Neither public policy nor the demands of justice prescribe the recognition of a principle by which this action must be defeated.</p> <p>Is it true, however, that the notes held by plaintiff are prescribed ? It will be conceded that they constitute the title or evidence by which the principal obligation was created; if so, are they not, with the mortgage which was designed to secure their payment, made the basis of this action ? Was not then the defendant, the third possessor, at the inception of this action, bound to the plaintiff to the full value of the slaves held by him ? If so, he was, pro tanto, a co-debtor of P. H. Glaze, and for that amount was as much bound to the plaintiff as P. Hr Glaze himself. It follows, necessarily, that the citation served on John A. Glaze had the effect of interrupting prescription as to P. H. Glaze, the maker of the notes. At all events, the defendant cannot plead the prescription of the notes. Prescription is an exception which the creditor and his debtors alone can plead. The obligation subsists until they avail themselves of the prescription ; Courts of justice cannot supply it. (2 An. 368.) As to the first two notes, the payment of which this mortgage was also intended to secure, it is clear that they have been extinguished by prescription, and the mortgage itself is extinguished pro tanto. (2 An. 927.)</p> <p>The next objection is that the mortgage was not reinscribed. That the pend-ency of an hypothecary action to subject property to a judicial mortgage does not exempt the mortgage from the necessity of reinscription is no doubt true. In the case reported at p. 632, in 5 An., the plaintiff claimed to subject the property to her judicial mortgage ; posterior to the first inscription of the judgment from which resulted the mortgage, rights had been acquired upon the property by another party, and as a judicial mortgage “ exists and has vitality only by inscription, if there be no inscription there can be no judicial mortgage,” and the third party, who in the meantime has acquired adverse rights, must he protected against the mortgage. Oan the same bo said of a conventional mortgage ? Will the counsel for the defendant contend that a conventional mortgage has no effect, no vitality unless and until recorded? Surely not. (O. 0. 3316 and 3319; 1 An. 219.) If during the pendency of this action ten year's had elapsed from the time the right under the mortgage could have been exercised, without a renewal of the inscription, and in the meantime third persons, not claiming under the party sued, had acquired rights upon the mortgaged property, I concede at once that the mortgage could not operate to their prejudice, because the effect of the first inscription would have ceased. The mortgage itself, however, would have remained unimpaired by the omission to reinscribe, as between the defendant, claiming under the mortgagor, and the mortgagee. (0. C. 3314, 3315, 3316 ; 2 An. 776.) We show, however, that the inscription of the mortgage was renewed on the day of , 185 . No action could have been brought by the plaintiff before the 19th of May, 184-2. I-Iow is Art. 3333 of the Code to be construed ? Does it mean, what it purports on its face, that the registry preserves the evidence of the mortgage during ten years, reckoning from the date of the mortgage? If such be the meaning of that article, it strikes at the very foundation of another principle, the propriety and justice of which had never been questioned, and which is, that prescription begins to run against a right only from the time that the right can he exercised. The mortgage under which the plaintiff claims is dated the 25th of October, 1838; the notes it secures, and which came into the possession of the plaintiff, fell due in May, 1842, and May, 1843. His right of action could only be exercised after the maturity of the first note, in 1842. Suppose, however, that the note was payable in 1849, the right under the mortgage might have been barred before it could be exercised! If this be law, I confess I do not understand the reason of the law.</p> <p>This case presents two questions:</p> <p>1st. Whether the pendency of an action against the third possessor of mortgaged property will dispense the creditor from the necessity of reinscribing his mortgage? We say that his failure to reinscribe is fatal to his claims against the defendant. La. 0. 3333. 2 An. R., 100, 520, 776 and 799.</p> <p>2d. The plaintiffs, having suffered the notes, by which his debt is evidenced, to be prescribed, the mortgage granted to secure it is also extinguished, and cannot be enforced against a third possessor of the mortgaged property. La. 0. 3505, 3030, 2157, n. 2.</p>

<p>Appeal from the District Court, parish of Yermillion, Voorhies, J.</p> <p>Defendants’counsel cited to sustain claim for damages—C. C. 1928; Guise v. Harney, 14 L. R. 202; Gopely v. Berry et al., 12 R. 80 ; 2 A. 620; 3 A. 588; Penwy v. Taylor, 5 A. 713, C. 0. 2294.</p>

<p>Appeal from the District Court, parish of St. Landry, Cushman, J., presiding.</p>

<p>Plaintiff charged an indebtedness on the part of defendant for advances, as would appear by vouchers, from No. 1 to 12, that would be produced on the trial. On the trial, a contract was oifered in evidence, to the admission of which a bill of exceptions was taken. Held—the evidence was properly admitted. The defendant might have craved oyer of the vouchers, of which the contract was one—and having filed his answer without doing so, the presumption is, he knew what they were.</p>

<p>Appeal from the District Court, Parish of St. Mary, Voorhies, J.</p>

<p>The transferree of a litigious right from one who purchased it, but was incapacitated to buy, under Article 2422 of the Code—to the knowledge of the transferree—acquires nothing—and the debtor, when sued, may set up the nullity of the sale.</p>

<p>Appeal from the District Court, Parish of St. Mary, Voorliies, J.</p>

<p>The insolvency of the husband will‘not prevent a conveyance of property by him to his wife for the purpose of replacing her dotal and paraphernal effects, alienated during the marriage.</p>

<p>Appeal from the District Court, Parish of St. Landry, Overton, J.</p>

<p>APPEAL from the District Court, Parish of St. Landry, Overton, J.</p> <p>cited Burns v. Hayes, 13 L. R. 12; Magee v. Dunbar, 10 L. R. 546.</p> <p>cited 1 L. R. 113, 283 ; 3 M. 378; 2 N. S, 389.</p>

<p>The maker of a promissory note, transferred by the holder to the vendor of property, cannot resist payment on the ground that the vendor had no authority to sell.</p> <p>Suit on a note payable to the order of H. & It, but endorsed by H. alone. By the Qowri: The defective endorsement on the note was cured by the subsequent declaration of R., that II was authorized to use the note as he did : the date of that declaration is immaterial.</p>

<p>Appeal from the District Court, Parish of St. Landry, Cushman, J., presiding.</p>

<p>It is of the essence of aleatory contracts that there should be risk on one side or on both, and that all risks appertaining to the contract and not excepted, are assumed by the parties.</p>

<p>Until the succession is liquidated it is impossible to ascertain whether the wife died rich, and unless she did so, and the husband is shown to be in necessitous circumstances, the marital portion is not due.</p> <p>In a suit for the marital portion, the heirs must be made parties, the administrator having no capacity to stand in judgment.</p>

<p>Matter which may be pleaded to the merits, cannot be made grounds for an Injunction.</p> <p>It is a good defence for the surety on a forfeited recognizance, that the principal had been tried and acquitted of the offence for which he was bound oyer, since the forfeiture.</p> <p>An Injunction will not be dismissed when it appears that the party will be immediately entitled to the same remedy,</p>

Mary, Voorhies, J. Plaintiff’s counsel filed the following brief: Alexander Brette was convicted of manslaughter in the parish of St. Mary, on the 4th of February, 1861, and on the 8th of the same month was sentenced to seven yean's imprisonment at hard labor in the penitentiary. He took an appeal, which was carried before the Supreme Court, at its September term, 1851, at Opelousas, whereupon the judgment appealed from was affirmed.

<p>The plaintiff in a petitory action is not bound to show title in himself good against the world. lie is only requ red to produce a title as owner “ causa idónea ad tra/nsferendwn domimmnf' to repel the presumption of ownership, resulting from mere possession; and the date of his title ought to if^rior to the possession of the defendant.</p> <p>Property conveyed to the husband, in lieu of a sum of money inherited by the wife, is paraphernal.</p>

<p>Appeal from the District Court, Parish of St. Mary, Voorhies, J.</p> <p>—cited Delogny v. Smith et al, 3 L. R. 418 ; Mmjfield v. Casnier, 7 N. S. 185 ; 8 N. S. 246 ; Morris' v. Croeller, 4 L. R. 150 ; Spiller’s Heirs v. Raumgazrd, 4 L. R. 207.</p> <p>Olivier, for warrantor—cited Copela/nd v. Labatut et al, 6 A. 61; Stoelcton v. Downey, 6 A. 581.</p>

<p>Appeal from the District Court, Parish of St. Landry, Overton, J.</p>

<p>Under Article 2456 of the Code, when the vendor retains possession, there is reason to presume that the sale was simulated. This presumption, however, is not conclusive—but throws on the vendee the burden of proving that the transaction was in good faith and the sale real.</p>

<p>The transfer and possession of a mortgage note will enable the transferree to obtain an order of seizure and sale—though the public act of transfer shows no acceptance by the transferree.</p> <p>Where the vendor has bound himself to raise certain mortgages on the property sold, he will not be entitled to ^n order of seizure and sale, unless he can show by authentic act that he has done so.</p>

<p>Appeal from the District Court, Parish of St. Landry, Overton, J.</p>

A PPBAL from the District Court, Parish of St Mary, Voorhies, J. OPINION AND DECREE OE THE DISTRICT COURT. The defendant, Haney Frazer, is sued by the plaintiffs for the recovery of advances which they have made to her for the purchase of building materials, and for provisions and supplies for the use of her plantation.

<p>from the District Court, Parish of St. Martin, Voorhies, J.</p> <p>MOTION EOR A NEW TRIAL.</p> <p>The defendant in the above entitled cause, by his undersigned counsel, begs leave to move this honorable Court for a new trial, on that part of the verdict of the jury, by which he has been found guilty of manslaughter, under the second count of the indictment, for the following reasons, to wit:</p> <p>1st. Because said defendant has been served with a copy of the whole pannel of the jury, including therein a list of the jurors, who, having served on the grand jury, by whom the bill of indictment was found against him in this case, were legally and necessarily exempted from serving as petit jurors on the trial of this cause, and also including therein the names of certain jurors who were exempted by law and by the Court from serving on the trial of said cause. .</p> <p>2d. Because after the regular pannel was exhausted, the Court having ordered two subsequent and new lists of jurors to be made, and the lists so made having been returned by the Sherilf successively during the trial, the defendant was not served with copies of the said new lists or venires, but was immediately called upon to make his challenges, as the jurors were called to the book to be sworn; without his having had any opportunity of consulting or reflecting upon the jurors by whom he was to be tried, or of ascertaining the objections he had to base his challenges upon. All which legal advantages he was deprived of, contrary to law; and all which he did not waive, and could not be waived.</p> <p>3d. Because the verdict of the jury on the second count of the indictment, is contrary to law and evidence:</p> <p>Wherefore, the defendant prays that it may please this honorable Court to grant him a new trial on the said second count of the indictment only; the verdict of the jury on the first being definitive. And he prays for all such other and further relief as equity and justice may demand.</p> <p>VoorMes, J. This is a motion for a new trial, founded on the reasons alleged by the defendant.</p> <p>The first objection urged by him is, that the list of jurors served upon him, under the provisions of the Act of 1809, improperly included the names of the jurors who served on the grand jury by whom the bill of indictment was found, and of jurors who were exempted by law and by the Court. The Act of 1809 provides, th%t a prisoner “ shall have a copy of the indictment and a list of the jufy which are to pass on his trial, delivered unto him at least two entire days before he shall be tried.” B. & 0. p. 248, sec. 39. In support of his position he relies on the case of the State v. Hassell, 3 An. 90, where it was held, that “a list containing other names than those of the jurors who are really to be presented on the trial, necessarily tended to embarrass the accused in his searches for information, and to confuse him in preparing his challenges, and thus defeated the ends of the law. That such a list was not a compliance with either the letter or the spirit of the statute, though it might at the same time contain the names of all the jurors who were to pass on the prisoner’s trial.” It was objected on the part of the prosecution, that if such a construction were given to the statute, a prisoner whose trial was assigned for the commencement of a term, before it could possibly be known how many of the pannel would be in attendance, would decline going to trial if the whole number of jurors contained in the list delivered to him were not in attendance. In answer to this objection, the Court remarked—that a just interpretation of the statute did not lead to such a consequence. That the inconvenience to which the prisoner might be subjected in the event of the failure of jurors to attend, from unforeseen causes, was one to which he was necessarily to submit, while deriving the benefits of the Statute. It was one of those unavoidable evils which no legislative foresight could provide against, but could never be serious, the number of jurors selected at each drawing being limited. The object of the law would be fulfilled if the prisoner were furnished with a list which was correct at the time of its delivery.” The facts on which that decision was given are stated in the opinion of the Court. After his arraignment, the defendant was served with a list of 108 names, headed “list of jurors drawn to serve during the term of June, 1847,” and with a further list of 48 names, headed “List of additional jurors drawn to serve during the term of June, 1847.” These lists comprised the names of all those who were originally drawn to serve as jurors for the term, and of two additional drawings ordered by the Judge, in consequence of the large number who, from various causes, were not in attendance on the Court. On the day of trial, a third list was delivered to the prisoner of thirty-six jurors, whom, he was informed, were to be presented to him, and from whom alone the jury was to be selected. These thirty-six jurors were included in the two lists previously served on the prisoner, and of the several drawings were the only jurors present. The counsel objected to going to trial, &c. Under such circumstances, it is obvious that the objection was well taken, otherwise the defendant would have been deprived of the benefits secured to him under the Act of 1809. The provisions of the Act of 1821, under which the drawings of the jurors in that case were made, were only applicable to the first judicial district. The jurors in this case, comprising forty-eight names to serve as grand and petit jurors, were drawn under the provisions of the Act of 1846, p. 69, nineteen of whom wore set apart to serve as grand jurors. A copy of all their names was served' on the defendant two entire days before his trial. The names of all the jurors, written on ballots, including those set apart as grand jurors, were put into the box, and drawn separately, and when called to the book to be sworn, no objection was made by the defendant, on the ground of the illegality of the list thus served upon him.</p> <p>The regü’ar pannel being exhausted, the Court granted an order of tales de circumstantibus, and the number necessary to complete the jury was selected without objection as to the service of the list of the same on the defendant.</p> <p>There is no doubt but that the defendant was entitled, under the principles laid down in that decision, to a list containing only the names of those of the jurors who were to be presented on the trial. Without deciding on the informality of the list of jurors served on the defendant, arising from the circumstance of including the names of the grand jurors therein—in other words, a copy of the venire, it may be inquired whether the objection does not come too late, after having accepted the jurors. In the case of the State v. Hernandez, 4 An, 379, King, J., in delivering the opinion of the Court, said: “When the</p> <p>accused was brought to the bar, he declared himself ready for trial, and accepted the jurors who were to pass upon the charges preferred against him. This is a waiver of the indictment, if indeed one had not been previously served upon him.” As to this pre-requisite, the statute is as imperative as it is in relation to the service of the copy of the list of jurors who are to be presented on the trial. In the case of Howell, the principle settled was, that the right to claim a copy of the indictment was not forfeited after pleading. But when the accused declares himself ready for trial, and accepts the jurors, does not the objection come too late ? I think so. Under the ruling in the case of Hernandez:, it must he considered a waiver of his right.</p> <p>2d. The second ground of objection must also be viewed in the same light.</p> <p>3d. In regard to the third, I am not prepared to say that the verdict of the jury is against law and evidence.</p> <p>It is, therefore, ordered that the motion for a new trial be overruled.</p> <p>MOTION IN ARREST OF JUDGMENT.</p> <p>The defendant in the above entitled cause, by his undersigned counsel, begs leave to move in arrest of the judgment to be rendered by this honorable Court on the verdict returned by the jury, on the following grounds, to wit:</p> <p>1st. Because having served with a copy of the original venire and of the whole pannel of the jury, in which were included the names of all the jurors who had served upon the grand jury, and also the names of certain jurors who were exempted by law from serving on the jury, said defendant, having prepared his challenges on said list, without being aware of the fact that all said persons, therein named as jurors, were exempted from serving on his trial, has been deprived of the right of exercising his challenges properly, and therefore, has not enjoyed the benefit of a fair and impartial trial as contemplated by law.</p> <p>2d. Because this honorable Court having ordered two successive venires to issue, after the original venire had been exhausted, two lists of jurors were returned by the Sheriff instanter and successively. Whereupon the defendant was called on to make his challenges, without being served with any copy of the said lists, as the law directs; by reason of all which he has been embarrassed in making his challenges, and unable to exercise fairly his right of challenging, as contemplated by law.</p> <p>3d. Because the bill of indictment found by the grand jury in this case, is signed “ Fred, ffates, District Att’y, pro tern, for the Fourteenth Judicial District of the State of Louisiana; ” which office, to wit: that of District Attorney, pro tem, for the Fourteenth Judicial District of the State of Louisiana, is unknown to the constitution and laws of said State, and is not in any manner therein provided for.</p> <p>4th. Because the person who signed the said bill of indictment, and who submitted to the grand jury, as District Attorney pro tem, had no authority to sign the same under the constitution and laws of this State, or to submit the same under the constitution and laws of this State, or to submit the same to the grand jury.</p> <p>5th. Because the person who signed the said indictment, as District Attorney pro tern, had been appointed by the Court to act as such in this case; and although said appointment was made by the Court, after it had been shown that the District Attorney now in office and lately appointed by the Governor of the State as District Attorney for the Fourteenth Judicial District of the State of Louisiana, in the place of Alex're JR. Splane, deceased, could not act as such in this cause, because he had been long previous to his appointment, consulted, retained and employed by the defendant as one of his counsel, (all which facts are hereby admitted,) still the defendant contends that this honoiv able Court has not, under the constitution and laws of the State of Louisiana, any authority to make any such appointment, either pro tern or otherwise.</p> <p>6th. Because there cannot be but one District Attorney for each Judicial District of this State, under the constitution and laws of said State, to be appointed by the Governor, with the advice and consent of the Senate. Wherefore, the defendant prays that this, his motion in arrest of judgment, be allowed to prevail; that the indictment found in this case be quashed and rejected, and that he be discharged from the same in due course of law. And he prays for all such other and further relief as equity and justice may demand.</p> <p>VoorMes, J. This is a motion in arrest of judgment, based on various grounds which are specified by the defendant.</p> <p>The first error apparent on the face of the record, of which he complains, is, that the bill of indictment found by the grand jury is signed by Fred. Gates, as District Attorney, pro tem, for the Fourteenth Judicial District of the State of Louisiana, which is an office unknown to the constitution and laws of the State.</p> <p>The next ground of objection is a consequence of this : that the person who signed the bill of indictment had no authority to do so, or to submit the same to the grand jury. In order to test the validity of these objections, it is necessary to ascertain in the first place whether the Court was invested with legal authority, under the circumstances of this case, to make the appointment of an attorney to prosecute on behalf of the State pro tempore; and if so, whether the indictment thus signed and submitted to the graud jury vitiated the proceedings.</p> <p>The appointment was made under the Act of 1817, which provides, that “ whenever, in any of the Courts of this State, the attorney general, or the prosecuting attorney of the district, shall not attend, the judge shall have power to appoint an attorne}1' to prosecute on behalf of the State, pro tempore." This law must be considered as still in force, unless repugnant to the constitution, which provides that “ all laws in force at the time 'of the adoption of the constitution, and not inconsistent therewith, shall continue'as if the same had not been adopted.”</p> <p>In relation to the appointment of District Attorneys, the constitution of 1812, contained substantially the same provision as the new constitution; the only difference between the two is, that the latter has limited the duration of the office to two years. Con. 1812, art. 4, sec. 7. Constitution, articles 74, 90. Under both constitutions the number of District Attorneys was fixed by the Legislature and the appointments made by the Governor. Acts of 1818, p. 399 and Acts of 1846, p. 61. The Act of 1846 also makes it the duty of the District Attorneys to attend the sessions of the Courts in each of the parishes in the Judicial District and to represent the State in all civil and criminal cases.” The Act of 1813 also required them to discharge their duties in person, unless prevented by sickness or physical impossibility.” The Legislature doubtless foreseeing the inconvenience or injury which might result to the public interest in consequence of such absence, enacted the law of 1817. Since the adoption of the new constitution no such provision has been enacted by the Legislature, consequently the Act of 1817 must be considered as still in force.</p> <p>And here it may be premised, in answer to the objection urged as to the power of the Court to make appointments to office, that the mere designation or appointment of an attorney to prosecute on behalf of the State pro tempore, in certain specified cases, cannot be fairly construed as an appointment to a public office.</p> <p>It is an appointment not to an office but for the performance of a specific duty, which is incumbent on the District Attorney, who is prevented or excused from performing the same. The question then arises, had the Court the power, under the Act of 1817, to appoint an attorney to prosecute in this case ? In the practice in criminal cases in this district after the enactment of that law, the power was never doubted. I am, therefore, of opinion that the law of 1817 embraces this case.</p> <p>It is, therefore ordered, adjudged and decreed, that the motion in arrest of judgment be overruled.</p> <p>The defendant was convicted of manslaughter and sentenced to two years imprisonment at hard labor in the Penitentiary.</p> <p>The District Attorney of the Fourteenth District, having been employed by the defendant, previous to his* appointment as District Attorney, considered himself as incapacitated from prosecuting this case; whereupon E. L. Gates was specially appointed by the Court to fulfil the duties of District Attorney in this prosecution. The bill of indictment is signed: “Fr'e Gates, Dist. Att’y pro tem. for the Fourteenth Judicial District of the State of Louisiana.”</p> <p>On the trial of this cause, the counsel, representing the State, attempted to introduce in evidence on behalf of the prosecution, a certain document purporting to be an affidavit of the deceased, taken before a magistrate, commencing by the words: “Before me, Edmond Mongé, justice of the peace in ^nd for the parish of St. Martin, the information of Vital Bronsson, of the parish aforesaid, who on his oath complains, &c.” Then giving a statement of the facts as related by the affiant to the magistrate, and ending by the words: “All this against the peace and dignity of the State aforesaid and contrary to the form of the statute in such case made and provided. Wherefore the said complainant prays that the said Alexander Viaux may be apprehended and held to answer this complaint, aiid further dealt with according to law.” This document was rejected by the Court d quo, on the objections made to its admissibility by defendant’s counsel.</p> <p>But after it h'ad been rejected, the prosecuting counsel produced a witness to prove the contents of the document, the declaration having been made in his presence, and to prove that the same, having been made when the deceased was in such a state as to be aware that he was going to die, was said deceased’s dying declaration. The testimony was objected to on divers grounds stated in the bill of exceptions, but the judge d quo, after hearing the witness as stated at the close of said bill of exceptions, overruled the defendant’s objections, and permitted the testimony to go to the jury.</p> <p>After the verdict, a motion for a new trial was made by defendant’s counsel, upon divers grounds, which motion was overruled by the Court.</p> <p>Before the sentence was pronounced, a motion in arrest of judgment was made on behalf of the defendant on several grounds, which motion was also overruled.</p> <p>This case then will present throe distinct points, to wit:</p> <p>1st. That resulting from the bill of exceptions taken to the opinion of the Court d quo, permitting the contents of deceased’s affidavit to be proven by a witness, and to go to the jury, after the document itself had been rejected.</p> <p>2d. The questions of law growing* out of the motion for a new trial, that is to say, out of the two first grounds.</p> <p>And 3d. The questions presented by the motion in arrest of judgment.</p> <p>I. The judge d quo allowed the State to prove by parol the contents of a written affidavit which had been rejected, because the witness proposed to be examined first said: “ that he was present when deceased gave his declaration to the magistrate, saw the wounds of deceased, and from them he judged he had very little time to live; deceased said before and after giving his declaration, that he would die; and the appearance of deceased indicated that he was conscious of his approaching dissolution.” The evidence was objected to on the grounds: that the declaration from the affidavit already rejected, was not a dying one, and had not been made in contemplation of death ; that the deceased did not make his said declaration to the magistrate with a view of making a dying declaration, but on the contrary, as shown by the document rejected, to cause a warrant to issue to arrest the defendant; that dying declarations, in order to serve as evidence, must be shown to have been made in those cases alone where the death of the party was the subject of inquiry, and not when the object of the declaration is to have the accused arrested, as shown by the affidavit already produced and rejected; and that the original written declaration having been rejected, the State had no right to prove its contents by witnesses, said parol proof being secondary evidence only, left entirely to the memory of man, &c.</p> <p>It is clear the affidavit of the deceased was taken for the only purpose of receiving his complaint and of arresting the defendant, who, at the request of the deceased, was to be dealt with according to law. It was a complaint made before a magistrate, assisted by his constable, (the latter is the witness whose testimony was admitted,) and under such circumstances, could it be expected that the deceased would have stated any other facts but those upon which his complaint was to be based? The affidavit was not made in contemplation of death, and it is reasonable not only to presume, but to conclude that the deceased, in lodging his complaint, must have been influenced and actuated at the time by animosity and resentment against the accused, whose punishment he was seeking by causing him first to be arrested and held to answer his complaint. Rosooe, on the subject of Dying Decla/rations, page 33, says: “ Such evidence, (speaking of dying declarations) therefore, is liable to be very incomplete. He (the deceased) may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But it cannot be concealed, animosity and resentment are not unlikely to be felt in such a situation. The power of anger, once excited, may not have been entirely extinguished, even when all hope of life is lost.” Such was undoubtedly the situation of the deceased, and the affidavit taken from him, without any other inquiry but what he pleased to state as the basis of his complaint, and without any cross-examination, shows on its face that he had no other object in view but to apply to the laws of the country for the revengeful punishment of his antagonist.</p> <p>I am well aware that the dying declarations of a person who expects to die, respecting the circumstances under which he received a mortal injury, are generally admitted in criminal prosecutions, but the death must be the subject of the criminal inquiry. Wharton, Am. Crim. Law, p. 179. Here, was the death of the complainant the subject of the inquiry? Surely not. The subject, or rather the object of the inquiry was the prosecution of the accused and the means of bringing him to his punishment. Wharton, page 181, says: “ The declarations are only admissible where the death is the subject of the charge, and the circumstances of the death are the subject of the declaration. Thus, in a case where the prisoner was indicted for administering poison to a woman pregnant, but not quick with a child, with intent to procure abortion; the woman was dead, and for the prosecution, evidence of her dying declaration upon the subject was tendered. The learned judge who tried the case, rejected the evidence, observing that, although the declaration might relate to the causes of the death, still such declarations were admissible in those cases alone where the death of the party was the subject of inquiry.” Here again, the circumstances of the death were not the subject of the declaration; the affidavit was merely made to procure the arrest of the defendant; for that purpose, the deceased may have related the causes of his expected death, so far as it was necessary to do in making his complaint, but surely there is nothing in the declaration, or in the manner in which it was made and received, showing that the death of the affiant was the subject of the criminal inquiry.</p> <p>One of my objections to the admissibility of the evidence is: that the State had no right to prove by parol the contents of a written declaration which had already been rejected by the Court. Roscoe, p. 33, says, on the authority of the cases therein cited: “Where a dying declaration has been reduced* to writing and signed by the deceased, neither a copy of the paper nor parol evidence of the contents can he received.” The rule is a safe one in favor of the accused, as it would be too dangerous to receive parol evidence of statements made by one person to another who reduced them to writing, inasmuch as the facts disclosed by the secondary evidence, might be inaccurately stated, or may have produced on the mind of the witness an impression entirely different from that which it should have really received. It is true that, in that case, the affidavit of the deceased had been rejected; but it was not the defendant’s fault if the State could not use it; it was very properly rejected by the Court, when offered by the State as a dying declaration; it -was not intended originally as such—it was not taken for that purpose, and it must seem strange that the contents thereof were allowed to be proven b3r parol, after the document itself had been declared to be illegal testimony. See also Wharton, page 182.</p> <p>But it will be urged that the parol evidence of the contents of the affidavit, having been preceded by the proof that the deceased was aware of his approaching death, this was sufficient to make the evidence legal; and this seems to bo the foundation of the opinion of the Judge a quo, when he admitted the testimony. This preliminary testimony was also objected to; but what does it prove ? The witness was present when the deceased gave his declaration to the magistrate; he saw the wounds of deceased, and judged that he had very little time to live. This, then, was simply the opinion of the witness, formed from his examination of the wounds; but he adds that the deceased said before and after giving his declaration, that he would die, and that the appearance of deceased indicated that he was conscious of his approaching dissolution.^ In what that appearance consisted, the witness does not say, and it must again be merely the opinion of the witness, from the appearance of the deceased only, ‘ and from what he may have said at the time. Is this sufficient to show that he was really conscious of his approaching death ? Was he fully aware of his situation? He said he would die, but people who say that very often recover". Wharton, loco citato, says : “ The dying party, to make the declaration evidence, must, at the time of making it, have an idea of a future state'.” Now, did the deceased in this case, express any such idea? In Roscoe, page 30, it will be seen that it was held that, “ for the purpose of determining whether the declarations ought to be received, the conduct of the deceased should be considered, to see if it was that of a person convinced that ‘ death was at hand,’ and not merely the expressions he used respecting his condition.” Here, far from having an idea of a future state, and far from abandoning all ideas of this world, the deceased, though he may have said he would die, was actuated, in making his affidavit, by motives of revenge; his object was the prosecution of the defendant, whom he accused of having shot him; and surely no one can conclude from his conduct, not even from his saying that he would die, that his mind was so penetrated'with the idea of a future state that he was conscious of his being in such a situation as to appear soon before his God! A man impressed with this idea would have acted differently.</p> <p>II. A new trial was moved for on two principal grounds: 1st, Because the defendant was served with a copy of the whole original pannel of the Jury, including therein a list of Jurors who, having nerved on the Grand Jury, by whom the bill of indictment was found, could not serve as Petit Jurors on the trial of this cause; and also including therein thenames of certain Jurors who were exempted by law and by the Court from serving on the Jury at all during the term. And, 2d, Because the regular pannel of the Jury, having been exhausted, the Court ordered two new lists of Jui’ors to be drawn successively; and said lists having been returned by the Sheriff successively during the trial, the defendant was ruled into the trial of his cause, without having been served with copies of said new lists as the law directs, and was therefore unable to prepare his challenges; and the two grounds may be taken together.</p> <p>1st and 2d. The original pannel of the Jury was composed of 48 names, a copy of which was served upon the defendant. Among those 48 names, nineteen had been drawn to constitute the Grand Jury, and two of them, to wit: Gústame Fournet and John G. P[a/rry, were by law exempted from serving on the Jury. It is also admitted that two lists of talismen were successively and immediately drawn in open Court during the trial; that the Sheriff made his returns immediately, and that the Jurors were also immediately called to serve on the trial, without any of the said lists having been served on defendant. It resulted, therefore, that in the list of 48 names served upon defendant, as being the list of the Jury that were to pass on his trial, there were 21 names of Jurors who could not be presented to the prisoner; and I contend that that is not only irregular and illegal, but that it vitiates the proceedings in such a way as to cause the verdict to be annulled. The same consequence must result from the want of service of the new lists.</p> <p>The law of1805 (Bull. & Cur., p. 248 No. 35) provides that “the accused shall have a copy of the indictment and a list of the Jury which are to pass on his trial, delivered unto him at least two days before he shall be tried.” This provision of the law is general in its terms, and the list must contain the names of the Jurors by whom he is to be tried. This is a right which belongs to the accused, which he cannot be deprived of, and the right is a very important one, in as much as it gives him a fair opportunity of consulting or reflecting upon .the Jurors who are to decide upon his fate, and of ascertaining the objections he may have to base his challenges upon. From the list served upon the prisoner in this case, how could he know that nearly one-half of the names could not pass on his trial ? How could he ascertain the names of those who were not to pass on his trial ? And how could he obj ect to the list when he had every reason to believe that among the 48 names, the Jury that was to try him w^as to be selected? He had prepared his challenges accordingly; but the names of the Grand Jurors, of course, were not called, and the accused must necessarily be thrown into great confusion and even disappointment, when he sees that Jurors, by whom he may have wished to be tried, are not called to the book, and that they are to be replaced by others called instanter, and taken among the bystanders. This branch of the question the Judge a quo has not touched in his written opinion; it did not strike him that the prisoner, relying upon the correctness of the listserved upon him, had no objection to make, could not be prepared to make any, as he could not know beforehand that one-half of the names given to him would not be called and presented to him. The case of the State v. Howell, 3 Ann., 50, is directly applicable to the question; the court says : “The object of the law in directing a list of the Jurors to be furnished to the accused is, to enable him to inquire into the characters of the judges by whom he is to be tried, and to prepare his challenges. The short time allowed himfor making this preparation is provided with reference to the limited number of the Jury.” And further : “ A list containing other names than those of the Jurors who are really to be presented on the trial, necessarily tends to embarrass the accused in his searches for information, and to confuse him in preparing his challenges, and thus defeats the ends of the law; such a list is not a compliance with either the letter or the spirit of the Statute, although it may at the same time' contain the names of all the Jurors who are to pass on the prisoner’s trial.” This question, it seems to me, is very clear; but the lower Judge, in recognizing that such was the right of the prisoner, and that he was entitled to be served with a correct list of the Jury that was to pass upon his trial, overruled his motion for a now trial, because ho thought the right had been waived by not objecting, and by having, as he says, accepted the Jurors who were presented.</p> <p>The decision of the Judge a quo on this last question, carries too far the doctrine of waiver: it is based upon the case of the State v. Hernandez, 4 Ann., 379, in which this Court decided that when a copy of the indictment has not been served on the accused, his being brought to the bar, his declaring himself x’eady fox' trial, and his accepting the Jurors who are to pass upon his trial, will be considered as a waiver of the right. But here there is, and thei'e cannot be any such waiver; the appellant does not complain that ho was not soiwed with a copy of the indictment, but says that the list of Jui-ors served upon him, was incorrect; that one-half of those Jurors could not pass xxponhis trial; that he could not know the fact of incorrectness when he was brought to the bar; that he thought the list was correct and had prepared his challenges accordingly; that when the Jury was "formed ho was induced to believe that the persons whose names were in the list without their being called, were absent; that he only ascertaiixed the fact and the cause of their not being called, after it was too late; that he was deprived of his rights without knowing at the time of the trial that the list was incori’ect; that he could not then make the objection; that the new lists of Jurors were made during the trial, without his having been served with copies thereof; and the Jurors were called to serve instanter ; and that he cannot be considered as having waived a right which he had at the time no reason to believe had not been extended to him, as ho was not then aware that nearly one-half of the Jurors named in the list were incompetent to pass on his trial, nor could he know the fact when the names of the Jurors who were to try his case, were called. On comparing the list of Grand Jurors with the names of the Petit Jurors, who tried this cause, the Court will see that .none of the Grand Jurors were sworn to try this case; and why ? Because they were not called to the book,' being then yet on the Grand Jury; they were not called, for the officers of the Court knew that they could not serve on the Petit Jury; and yet, their names were on the list served upon the accused, as Jurors who were to pass upon his 1/rial. In the case of Howell, 3 Ann., 50, it was held that a prisoner does not waive his right, under Sec. 86 of it: 4 May, 1805, to have delivered to him a list of Jurors two days before his trial, by pleading without claiming it. The case of Howell is in all respects applicable to the present one, and not the case of Hernandez, where the question tried and decided was with regard only to the want of service of a copy of the indictment. Here, again, the list of Jurors was served, but it was incorrect, and the incorrectness was such as the accused could not discover at the time of the trial. The absolute want of service of the other lists, is also a fatal defect in the proceedings of this case; the accused was deprived of this important right, and his pleading and going to trial without claiming it, is not a waiver of it.</p> <p>III. On the motion in arrest of judgment: This motion is based on the same grounds at those already disposed of; and upon four other grounds relating to the appointment by the Court of a counsel to represent the State in lieu of the District Attorney, and to the manner in which' said counsel signed the bill of indictment, to wit: as District Attorneg pro tem. for the fourteenth Judicial Distl’ict of the State of Louisiana.</p> <p>The questions arising from the appointment of a counsel to represent the State, have been fully argued by my associate counsel in his brief, and I shall not add anything in that respect to his argument. But I contend that the counsel who was acting in this case, by special appointment from the Court, had no right or authority to sign the bill of indictment as District Attorney pro tem. for the fourteenth Judicial District of the State of Louisiana, and that his signature as such is a fatal defect, which, of itself, is sufficient to quash the indictment. It is a well-known rule in criminal law, that the indictment must be signed by the prosecutingattorney, and that he must endorse the capacity in which he signed the bill which he presents to the Grand Jury. Here, the prosecuting Attorney calls himself, or rather styles himself, as occupying an office unknown to the Constitution and laws of the State; there is no such office as District Attorney pro tem. for any of the Judicial Districts of the State of Louisiana; and although he was acting as District Attorney under the special appointment of the Court, his signature at the foot of the bill in any other capacity, cannot have any more effect than if the bill had been signed by any stranger assuming the quality of District Attorney pro tem. This objection, if available, will have the effect of quashing the indictment, and thus will put an end to the case.</p> <p>Before closing, I shall call the attention of the Court to the rule established by recent decisions, to wit: that when a prisoner has been indicted for murder, and the Jury found him guilty of manslaughter, upon a new trial granted, he cannot be tried again for the crime of murder. 5 Ann., 398 and 489. So, if a new trial is granted in this case, the appellant shall only be tried for manslaughter.</p> <p>Han'dy & Gates, for the State.</p> <p>When a document purporting to be a dying declaration, has been rejected, as being an affidavit, parol testimony to establish what were the dying declarations of the deceased, is not a violation of the rule of evidence prohibiting parol testimony to establish the contents of a written document.</p> <p>“ The dying declaration of a person who expects to die, respecting the circumstances under which he received a' mortal injury, are eonstantly admitted in criminal prosecutions, when the death is the subject of inquiry.” (Wharton, p. 179. 2 Starkie’s Evid., p. 261.)</p> <p>“ It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them in evidence, that they were made under a sense of impending death." (Greenleaf’s Evid., vol. 1st., p. 158. 2 Starkie’s Evid., pp. 261 and 262.)</p> <p>It is contended, that there was no error on the part of the Judge below, in admitting the testimony of G. Biewoenu to prove what the dying declarations of the deceased were. That the testimony established: That there was that sense of “impending death” necessary to make the declarations of the deceased admissible.</p> <p>It is contended that the “motion for new trial” was not improperly overruled by the Court below. That the objections of the defendant came too late after verdict, and are not good grounds for a motion for new trial. (Yide Acts of 1846, p. 65. State v. Hernandez, 4 La. R. 379.)</p> <p>It is contended, that the “motion in arrest of judgment” was not improperly overruled. That under the Act of 1817 the Court had the power to appoint a District Attorney pro tempore. That when the regularly appointed District Attorney recused himself, he was, as to the case at bar, by law presumed absent. That the Act of 1817, being in force under the Constitution of 1812, and the Constitution of 1845 not clashing with that of 1812, containing no clause relative to the appointment of District Attorney contrary to or repealing that of 1812—the law of 1817 was in force under the Constitution of 1845. That the District Attorney pro tempore was the proper officer to draw up, sign and present the bill of indictment to the Grand Jury.</p>