The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-03-22
Supreme Court of Louisiana.
Condensed Decisions-NEw ORLEANS, March 10. 1849.

7
intended for the protection of the owner and his
TO insist this right is not egularty of which the
slave can complain. he of the District Ator-
ney not indispensable to the validity of prosecution
against slave; and in the absence of the District Aor-
ney the Court invested with the power appoint
sci to prosecute in behalf of the State The objection
that one Of the Justices of the Peace present
aid in selecting the Jurors be made before the jurors
are sworn. "A person who charged slave, and
submits trial as such, without objection, for admits
his condition dispense the State from proving his
| slavery.
The STATE OF LOUISIANA Us. SLAVE JERRY.
Appeal from tribunal composed Of tUo Justices Of
The Peace and ten oWners Of SLAVES, Of the Parish of
| Madison. No. 1902. KING, j.. Per curiam :
| The defendant was convicted of the murder of a
slave, and from the sentence of the Court has ap-
| pealed. The grounds on which reversal of the
judgement of the lower Court is claimed, are l.
That no statute of the State makes the killing of
slave murder. g. That the accused was not arrested
IN virtue of writ issued upon previous affidavit
8. That the District Attorney did not assist at the
trial, and the appointment of counsel to prosecute
| on behalf OF the State unauthorized by law.
| 4. That the tribunal by which the defendant was
tried was Illegal and its proceedings void, because
the assisting Justice not notified to attend until
| the day of trial, and not present to assist in
| selecting the slave-owners who served as jurors
). That the accused was not proved on the trial to
| be slave. 6. That the sentence was signed by
but one of the Justices.
Il. The first point has been determined in the
case of The State the slave Dick, Gust decidedly
| II. The slave was taken into custody and bis
presence secured at the trial. 1t can be of no i'm
| portance now to inquire by what authority he
arrested. The provisions Of The act of 1885, (p ll5,
sec. 49, directing that affidavit be made before
the arrest of slave, is intended for the protection
of the owner, who cannot be required to surrender
his slave until facts shall have been 10 which
| authorize prosecution. His neglect to insist on
this right is not an irregularity of which the defen
dant can complain.
"llI. The statute imposes upon the District Attor
ney the duty of prosecuting slaves accused of capt.
tai crimes, but his presence not made ndispensa
| Bile 10 the validity of the proceedings. All of our
Courts vested with the power to appoint counsel
to prosecute in behalf of the State, in the event Of
the absence of the District Attorney.-R. d c. Di
| p. 1856, sec 90.
CIV. The objection that the assistant Justice was
| not present to aid In selecting the slave-OWners,
| should have been urged before the jurors
| sworn. The accused cannot be permitted, under
the provisions of the statute to accept jurors who
| may have been irregularly chosen, and, after
dict, take advantage of the irreguarity If he per-
| init them to be sworn without objection his silence
must be considered waiver of the irregularlty.
See The State US. slave Isaac, 3Annnual, mot yet
reported.l
| "V. The defendant having been charged as
slave, and having submitted to trial as such with
out objection, SO far admitted his condition as to
| dispense the State from proving his slavery.
| "Vl. The signatures OF both of the Justices of
the Peace to the sentence, are not required by the
statute. The judgement appealed from is there
| fore affirmed" Attorney General Gilmore for the
State, appellee; Haynes and Moore for defendant
| and appellant.
An injunction will not lie against the seizure of slave
executoy process the ground the naccuracy othe
description of his color when his identity unquestion
able in point of fact and he has been described by
| and age in the act of mortgage
| FRANCES GRIFFIN, EFT AL. Us. The BANK OF
LOUISIANA. Appeal from The SerenM Judicial
! District Court Parish Of West FeIiciana. No.
| 1894. .EUSTIs, &. j.. Per Cur7dm: The Bank
of Louisiana instituted executory proceedings
mortgage executed by Mildred Brown to secure the
| payment of a loan of money. A tract of land and
| several slaves We're included in the mortgage. At
| the decease of Mildred Brown her property was
sold by the Court of Probates, and at the sale the
| plaintiffs became the purchasers Of slave named
| jim He is described in the process verbal of the
| slave as a negro man named Jim, thirty five years
of age, and is mentioned in the inventory made of
the deceased's property under the same description.
In the mortgage given by the plaintiffs to secure
| the payment of the purchase money, the slave is
| described a negro man aged about thirty-five
years. In the mortgage to the Bank which the
| executory process issued, dated about two years
previous to the SALE he is described as the negro
| man Jim, aged thirty-three years. The executory
| process was executed by the seizure of slave in
the possession of the plaintiffs bearing the of
| Jim, who it appears is a mulatto. An injunction
| was granted, and after a trial before jury, who
|
perpetual and the Bank has appealed. 1t is urged
| that The jury were satisfied that the wrong slave
| had been seized and they were proper judges of his
identity, the slave himself was before them.
| This finding would be conclusive with under
| any other circumstances. But in this case the
| plaintiffs in their petition do not undertake even to
allege that the slave seized is not the slave mort
| gagged. True he is mulatO, but In the several
acts which we have before reclted, he is described
| as negro. The name and age given him it is not
I.La
unquestonabe in point of fact, and the only matter
put in issue by the petition for junction, is the
curacy of the description of his color, which is not
| of itself material the description of him by name
| and age being sufficient to render the mortgage
| valid Succession of Montgomery, Annual AL
The mortgage in favor Of the Bank containing
the pact de non. dl,enando and subsstng under the
| charter, Notwithstanding the sale by the Court of
Probates. the slave in question was lawfully seized
The points raised by the counsel for the plaintiffs
in argument in favor of the extingulShment of the
debt due the Bank on the original loan, we think
| untenable
The judgment of the District Court is therefore
reversed, the injunction dissolved, and the plain
tifs petition dismissed with costs in both Courts
Raliff and Cowgirl, for plaintiffs and appellees
| w. B. Phillips, for defendant and appellant.
creditor of an nsovsnt will be allowed judgement
with privilege in suit against the Syndic. Privileges
must be settled in proceedings taken by the creditors of
the insovent contradictoHly among themselves. The
syndo represents the of the creditors, and in
dividual creditors.
| MARGARET PosEY AND HUSBAND Us. SYNDICs
| OF A. DUNBAR Appeal from the Seventh judicial
District Court Parish of West Feliciana. No. 1925
EUsTIs, C. J. Per Curtain: &c Margaret Posey
and her husband, the appellees, interviewed in a
suit between the Syndcs of A. Dunbar and Ste
phen and Gideon Neville, which was instituted for
the recovery Of the purchase money of certain
tract of land bought by Stephen Neville at the sale
of the insolvents property. The petition of inter-
vention claimed the price of the land under the
privilege of the vendor, Margaret Posey having
| sold the land to Dunbar, the nsolvent, who had
never paid for it. He had placed this tract of land
among his property on his schedule, and surrendered
to his creditors, whose Syndics took possession of
| it, and sold it to Stephen Neville. A tableau of
distribution was filed by the Syndics on the 18th
of April, 1S43, which was homologated, so far as
not opposed, on the 23d of May following. On the
| 18th of December, 1874 the attorney of the appel
lees made application for leave to file oppo-
sition TO the tahleau which application was disal-