New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-04-05


Of this honorable court, having been cap
tain of Company G, in the Crescent Regi-
ment, from New Orleans, in the service of
the s0-called Confederate States of America
during the late civil war between the
United States and the said Confederate
States"
The averment a. to the other ground then
is in similar terms.
These avermepts tender the only issues Of
facts to be found in the plea. 1t 10 obvious
that the plea fails of the required certainty.
There is no averment of time or place. The
"insurrection or rebellion against the United
States" extended over period of five years,
and over vast territory. The prosecution
is entitled to be informed by the plea when
and where tho Juror took up arms and joined
the rebellion and insurrectl0n against the
United States. The plea gives no informa-
ton upon these points. 1t lacks the preci-
sion and certainty required in all criminal
pleading, and is in this respect fatally de-
fective.
2. The plea concludes as follows: "And
that they are ready to verify; wherefore
they pray Judgment, and that by tho court
they may be dismissed and discharged from
the said premises in the said indictment
above specified"
The prosecution claims that this ID NOT
the proper cODclusiCn.
There SCENE to be some confusion in the
adiudicated cases upon the conclusion pro.
per to q plea in abatement. See tho King
We. Shakespeare. East, 81, where Lord
EllinbOn held that plea of misnomer, by
which the defendant prayed Judgment of
the said indictment, and that be might not
be compelled to answer the same, was well
pleaded, although" he said, .'if it had not
been for the precedent cited Of the King vs..
Westby, should have been much inclined
to think this plea bad in respect to its con-
clusion."
The conclusion adopted by the pleader in
this case is the one appropriate for and
used in pleas in bar, as the plea of autre
fois ac0uit or autre fois convict. See form
ll54, 9 WhartOn's Precedents. By the same
authority the proper conclusion TOR plea
in abatement, or plea that the defendant
has no addition, or plea OF msnomer, or
plea of wrong addition, is prayer that the
Indictment may be quashed. Sac Whar-
toms Precedents, forms 1l4l. 1142 and 1l44.
See also Archb holds C. r., 81; Starkie c. p,
473; VIII. c. L.. sec. 536.
The Judgment prayed for by this plea is
one only proper to be pronounced upon q
plea in bar. "In plea in abatement the
court will give no other than the proper
judgment prayed for by the party"
The King vs. Shakespeare. 10 East,
supra. As the judgment prayed for in this
plea in abatement. the plea is defective
and bad.
3. As to the objection that the plea is not
verified, simply remark that 60 far as
beenaable to look into the authorities, only
pleas of misnomer or wrong addition are re-
quired, and the plea should expose the de-
fen6ant's proper name and addition. Whar-
toms Am. Com. Law. sec. 5S. The reason
of the rule as applied to such pleas is Obvi-
t1,o
plea under consideration.
The result of my investigation is that the
plea is uncertain and insufficient. and does
not pray the proper judgment OF the court.
but the facts referred to, If properly plead
ed, would have justified judgment that
the Indictment be quashed.
The demurrer to the plea is sustained.
Since the argument of the demurrer it
has been suggested that section Of the
Revised Statutes was improperly included
by the cOmpilers in their revision OF the
statutes, that section not having been in
force on the first day of December, 1878.
This appears to be true. The sectien re-.
TERED to was section one of the act ap-
proved June IL, 1867, entitled an act defn-
ing additional causes for challenge, and
prescribing an additional oath for grand
and petty Jurors in the United States courts.
~ Stat, 430 This section was repealed
by the fifth section of the act approved
April 20, 1871, to enforce the provisions OF
the fourteenth amendment to the constitu-
ton Of the United States, and for other
purposes. III Stat, l5l
But the conclusion which the prosecutor
seeks to draw from these facts, namely,
that section $40 of the Revised Statutes is
not now part of the statute law, does not,
in my opinion. follow. The work of the
compi'ers, including section $40, was sub
mit.ed to Congress, and the whole re-en.
acted by the adoption OF the Revised
Statutes. The compilers may have ex.
ceeded their authority. Congress may not
have designed to re-enact section $40. but
it has done so, and We can not go behind
the law and cure the mistakes and mac
curacies of Congress. That must be done
by Congress itself, and until it is so done
we must take the law as We find it.
James A. Farley vs.. johnson & Goodrich
Verdict for $1,000 for plaintiff.
Superior District Court.
BEFORE JUDGE HAWKINS.
OK. s. M. A. Gallagher Va. Louisiana
Equitable Insurance Company-On plain
titf's motion. amount claimed reduced tC
| $500 by remitting the overplus.
c. s. Sauvinet vs.. j. A. Walker.-FrOn
Eighth District Court. On civil rights bill
A. Cheese and G. Herman subrOgated.
State vs.. Charles Clinton, State Auditor
| Injunction on appropriation bill. Interven
| ton of F. nj. Kerr for compensation as
cl .rk Of commission of persons submitted
State ex rel L. C. Roudanez vs.. Mayor
| and Administrators of New Orleans.-In
| junction issued restraining the city from
carrying into effect act No. 20 of March a
1876, authorizing . vote of the people upon
| the question of raising tax in aid OF the
New Orleans Pacific Railroad Company.
YoF
| Thompson, Chief State Engineer.-Relatol
sets fol tn his position as assistant engineer
| at salary Of $4,000; alleges that $3.50 is due
| from April l, 1875, to December 81, 1875
| that he has drawn his warrant, but that de
| fend refuses to approve it. Rule to show
cause fixed for April 10.
State ex rel Thomas Gill vs.. Auditor
| George 3. Johnson.-RelatOr alleges hold.
| ing certificate of 1908 80 from the Board
of Levee Commissioners, due May ~
! 1868; that by act No. 80 of 1869 $27 ,707 OF
was appropriated to pay such Indebtedness
| that there is balance of $4,000 to the
credit of the fund, but that the Auditor re-
! fuses to warrant for it. Rule to show
| cause April Is issued.
BY JUDGE LYNCH.
H. Boutte va. Mrs. Berens.-Exceptior
sustained and suit dismissed.
Mrs. E. Mccormick vs.. NJ. O'Sullivan.-
| Rule to dismiss Injunction made absolute.
Christian Boye vs.. G. E. Girardey ant
George B. johnson, State Auditor.-Injunc
| ton dissolved.
Victor Remand vs.. Recorder of Mort
gages.-Rule to give clear certificate mad
| absolute.
Superior Criminal Court.
| GRAND JURY.
| The following gentlemen were selected t.
serve as grand Jurors:
l .Inhn w Maiden fnreman.