ROBINSON

v.

FRERET.

said; all of which is hereby accepted by the said Jean Baptiste Oliver, in his said capacity."

The record is extremely voluminous, embraces other matter having a connection with the subject, but which we omit to state, as they are not material for properly understanding the question to be decided, which relates to the proper construction of the above clause in the lease. It is conceded, that if under that clause in the lease, the defendants contracted the obligation of sureties for Robinson, Hyde & Mackie, they had such an interest in the lease as entitled them to have it sold. We consider that, taken in connection with other parts of the act, it evidences a sub-lease by Robinson, Hyde & Machie, to the defendants, of such portion of the premises as should be necessary to locate their dock and carry out its operations, for which the company bound themselves in favor of the lessors, to contribute one-half of the annual rent; it further evidences the assent of the lessor to this sub-lcase, on the condition, that to the extent of one-half of the annual rent for the whole term, the company should be responsible to the lessor as the security of the lessees; so that, if from any cause the sub-lease should be afterwards rescinded and the company released from their obligations in favor of the lessees, they should still remain bound and liable to the lessor as the securities of the lessees, for one-half of the rent. The lessor had a right to impose this as a condition of his assent to the sub-lease, and it is expressed in clear and unequivocal language. The company did not bind themselves to pay to the lessor one-half of the annual rent-the obligation to pay the one-half of the rent was an obligation contracted in favor of the lessees as the consideration for the sub-lease of such portion of the premises as was necessary to carry on this business of the company. The clause by which the company furthermore bind themselves as sureties for the lessees, for one-half of the rent, shows that the parties did not understand that a direct obligation was contracted by the company in favor of the lessor to pay half the rent-the suretyship on the part of the company, so far as the lessor was concerned, was the real obligation entered into in substance as well as in form, and while we agree with the counsel for the plaintiffs, that the denomination of a contract by a particular name, does not necessarily determine its true character, we think it is clear that the parties in this instance, contemplated precisely such a contract as they styled this to be. It is further to be added, that the sub-lease did not exclude the lessees from the employment of such portion of the premises, as was not required for the business of the company, and that there was therefore such a joint interest in the lease, as the lessors acknowleged, when they consented to a judgment being entered up on the motion of the defendants, and in conformity with the prayer of their petition for a sale, to effect a division of interest between them. We think there was no ground for the injunction by which the sale was arrested. The defendants have asked for an amendment of the judgment of the court below in their favor, awarding them damages as claimed in their answer. It is averred in the answer, that the injunction was vexatious, illegal and wrongful, and had caused damages to the defendants in the sum of $500, for which judgment is prayed against the plaintiff and their sureties in the injunction bond in solido.

The injunction did not arrest a judgment for the payment of money—the Act of 1831 was therefore inapplicable, and the surety was not a party to the suit. The answer does not contain a reconventional demand for damages, aris

ing ex delicto, but sets up a claim for damages on the bond, against both principal and surety, which cannot be done in the same suit, in which the injunction was granted, unless it is a case arising under the provisions of the Act of 1831, when a judgment for the payment of money is enforced. We will, however, amend the judgment so far as to reserve to the plaintiffs the right of suing for damages in a separate action.

It is therefore ordered and adjudged, that the judgment of the court below be amended, by reserving to the plaintiffs the right to sue for damages for the wrongful issuing of the injunction; and that so amended, the judgment of the court below be affirmed, with costs in both courts.

ROBINSON

v.

FRERET.

STATE v. J. REBASSA.

The law requiring the keepers of coffee-houses to pay $67 for a license, is constitutional; it operates uniformly upon all persons of the same class, to wit, keepers of coffee-houses.

A

On appeal by the de1st. That the law giving

PPEAL from the Fourth District Court of New Orleans, Reynolds, J. Gaiennie, for plaintiff. Carrol, for defendant and appellant. Slidell, C. J. (VOORHIES, J., and BUCHANAN, J., absent.) This suit was brought before a Justice of the Peace to recover $67, for the defendant's State license, as keeper of a coffee house, for the year 1852. fendant to the District Court, two points were made. the tax collector the right of seizing and selling the property of those who are assessed for taxes, is unconstitutional. 2d. That the tax on different kinds of retailers not being uniform, the tax is unconstitutional. The District Judge affirmed the judgment, and the defendant appealed to this court.

Of the first point we have no jurisdiction in this cause. The amount in dispute not exceeding $300, our jurisdiction is confined to the question of the constitutionality and legality of the tax. Albert v. Brewer, 9 An. 64. Constitution, Art. 62.

If we consider this class of exactions as falling within the purview of the first clause of Article 123, still we think it constitutional; because it operates uniformly upon all persons of the same class, to wit, all keepers of coffeehouses. The defendant is required to pay the State what other keepers of coffee-houses are required to pay, no more and no less. See State v. Poydras, 9 Annual.

It is therefore ordered that the appellant take nothing by his appeal, and that he pay the cost thereof.

STATE V. THOMAS HAWTHORN et als.

Witnesses for the accused to contradict a witness for the State who had denied, on cross-examination, having sworn to certain statements, cannot be heard after the testimony on the part of the defence is closed, and after the District Attorney has offered testimony to sustain the character of the State's witness, but which he had withdrawn upon the defendants' counsel stating that he had no intention to impeach the character of the witness.

A

PPEAL from the First District Court of New Orleans. Robertson, J. Attorney General, for the State. Larue & Whittaker, Budd and Lambert, for appellants.

SLIDELL, C. J. Under the circumstances stated in the bill of exceptions, we think the District Judge did not err in refusing to receive the testimony offered. Judgment affirmed, with costs.

Bill of exceptions alluded to by the court:

Be it remembered that on the trial of this case, the testimony of E. Dennis was taken for the prosecution, and in the cross-examination he was asked whether he did not on a day named, before the Recorder of the Second District of New Orleans, swear that he had kicked Hamilton Rowan, on the day in question, on his breast and hands, as he was about ascending from the main to the poop deck; that he answered, no; whereupon Recorder Ramos, of the Second District, and Henry C. Reiley were offered by defendants to contradict said testimony. It was objected to by the District Attorney; the objection was sustained by the court, and defendants, through their counsel excepted to said decision.

By the Court.-These witnesses were introduced after the testimony had been closed on the part of the defence, and after the District Attorney had offered testimony to sustain the character of the State's witness, Capt. Dennis, but which he had withdrawn, upon defendants' counsel stating that they had no intention to impeach the character of the witness. The court believes that to prove a witness has sworn falsely is an attack upon the character of the wit(Signed) J. B. ROBERTSON, Judge.

ness.

SUCCESSION OF HENRY PUCK.-HENRY CLAUSEN, Under Tutor,

Appellant.

The widow having contracted a second marriage, without being continued in the tutorship by a family meeting, the tutorship is forfeited, and she cannot be reinstated as natural tutrix, but must give bond as dative tutrix.

A

PPEAL from the Second District Court of New Orleans, Lea, J.

Budd, for the under-tutor, appellant. VanDalsen, for appellee. BUCHANAN, J. (VOORHIES, J., absent.) The widow Puck having married again without causing a family meeting to be previously convened for the purpose of continuing her in the tutorship by nature, was deprived of the same by judgment of court. She subsequently prayed that a family meeting might be convened for the purpose of naming a tutor or tutrix to her minor child, Adelaide Puck. The family meeting was held accordingly, and recommended that

PUCK.

Mrs. Spindler (widow Puck) should be reinstated as natural tutrix. The pro- SUCCESSION OF ceedings of the family meeting were homologated, and the under-tutor has appealed from the judgment of homologation.

The family meeting erred in recommending that the mother should be reinstated as natural tutrix. The law does not sanction such a proceeding. The right of natural tutorship being forfeited by a second marriage, the mother could not be appointed, except as dative tutrix, and upon the condition of giving bond as dative tutrix. See Webb v. Webb, 5 An. This is the construction which we put upon the vote of the family meeting; agreeing in that respect with the views of the District Judge, as expressed in his conclusions in the decision of a rule to set aside the judgment of homologation; which rule was properly dismissed by the lower court as irregular.

The judgment dismissing the rule is affirmed; that homologating the proceedings of the family meeting is amended, by requiring Mrs. Spindler, the mother of the minor, to give security as required for a dative tutor, within ten days from the recording of this decree in the District Court. The costs of the rule to dismiss, in the District Court to be paid by the appellant, and those of this Court by the appellee.

STATE V. JONES.

Holmes and Jones agreed to purchase a schooner on joint account. Holmes gave Jones his note for one-half the purchase money to be delivered to the owner of the schooner, which note Jones converted to his own use. Held: This was a breach of trust under the Statute of March 8th, 1845.

A

PPEAL from the First District Court of New Orleans, Larue, J.

A. P. Field and Morse, Attorney General, for the State. VanDalsen, for defendant and appellant.

OGDEN, J. The defendant having been indicted and convicted of a breach of trust, under the Statute of the 8th of March, 1845, brings the case up on an exception to the refusal of the Judge below to charge the jury, that if they believed from the evidence that there was an agreement between Holmes, the prosecutor, and the defendant to purchase a schooner on joint account, and that Holmes had placed a note in defendant's hands to be delivered to the owner of the schooner, in payment of his half of the price, but which note the defendant had not delivered, but negotiated, then it was not a breach of trust under the Statute.

The court refused to give that charge on the ground that it did not apply to the case, and correctly charged the jury what are the essential ingredients to constitute the offence.

We think the court did not err. The agreement between Holmes and Jones to purchase the schooner on joint account did not deprive the transaction of the character of an agency, undertaken by Jones for Holmes in purchasing the onehalf interest in the schooner for him.

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

40

STATE V. WILLIAM JOHNSON and ANDREW MELVILLE.

A man's concubine is a competent witness in his behalf.

PPEAL from the First District Court of New Orleans, Robertson, J.

A Morse, (Attorney General,) for the State. Waples, for defendant and

appellant.

CAMPBELL, J. (VOORHIES, J., and BUCHANAN, J., absent.) The only question for our decision, is presented in a bill of exceptions taken by the defendants, on their trial for murder, to the refusal by the court to permit Martha Field, who was offered as a witness, to be sworn and examined in their behalf.

In answer to questions propounded to her on her voir dire, she declared that she had lived with Melville, one of the accused, as man and wife, for four years; but that she had never been his wife—had never been married to him. We think the Judge erred in deciding that these facts destroyed the competency of the witness. In our opinion, they affected her credibility only. She not only declares herself not to be the wife of the prisoner Melville, but for ought that appears, the parties never were reputed to be husband and wife, or supposed themselves married, or that she bore his name, or that either of them ever acknowledged or avowed that that relation existed between them. The answers convey to our minds the idea, that though they lived together as man and wife, that is, cohabited, she was his concubine or kept mistress, and not his wife.

The facts do not bring the case within the questionable rule invoked by the State, as established by the decision of Lord Kenyon, when Chief Justice of Chester, which decision seems never to have been reported, but is stated by Richards, Chief Baron, in Campbell v. Tremlows, 1st Prier, 81. In that case, the woman had for a long time cohabited with the man, and was acknowledged and passed as his wife. Even under these circumstances, her incapacity has not only been doubted, but it is believed the current of authority is against the decision. Wharton's Crim. Law, p. 296.

The rule excluding husband and wife as witnesses for or against each other, is founded chiefly on principles of public policy, which lie at the foundation of civil society; and its disregard would tend, by destroying the confidence which should always subsist in that sacred relation, to impair its sanctity.

"This rule of protection," remarks the late Dr. Greenleaf, in his admirable treatise on the Law of Evidence, vol. 1, s. 389, "is extended only to lawful marriages, or at least, to such as are innocent in the eye of the law." “If,” he adds, "the cohabitation is clearly of an immoral character, as, for example, in the case of a kept mistress, the parties are competent witnesses for and against each other." This doctrine is asserted in the case of Batthews v. Galindo, 4 Bing. 610, and was adopted by our own courts as the true rule, at an early day.

In the case of M. Cornier v. Couet, 2 M. R. p. 56, a witness having been objected to, on the ground that defendant lived with him as his wife, though they were not married, was permitted to testify; the court holding that this went only to the witness' credit, not to his competency. We assent to the correctness of this decision, and are unwilling to disturb it.