LION v. CAMPBELL, J. The defendants and appellees move for the dismissal of the WOLF & BROTHER. appeal on the ground that the transcript was not filed within the delay prescribed by law. The appeal was made returnable on the 4th Monday of January, 1854. The transcript was not filed until Friday, the 27th, more than three judicial days having elapsed, and no application having been made for further time, the appeal must be dismissed at appellant's cost, which is decreed. C. P. 590, 883, 585; Pond v. Horton, 7 L. 176; New Orleans & Carrollton Railroad Co. v. Hood, 3 Ann. 226; McDowell & Peck, 5 Ann. 42; Bonnabel v. Walter, Ann. 744. JOHN LITHERBURY V. MOSES GREENWOOD & Co. and LEWIS SNAPP. The rule excluding a party to the record as a witness cannot be extended to a case where defendants might have been sued separately. A PPEAL from the Third District Court of New Orleans, Kennedy, J. J. L. dants. OGDEN, J. The defendants, Greenwood & Co., promised to accept the drafts of their co-defendant, Lewis Snapp, at six and nine months, for $1166 67 each. On the faith of that promise, the plaintiff took the draft sued on, which was afterwards protested for non-acceptance, and the present suit is brought both against Greenwood & Co. and Lewis Snapp, as member of the firm of Snapp & Hanger, by whom the bill was drawn; and judgment is asked against them in solido. Judgment was rendered against Snapp, on his confession. The conclusion to which we have come, on one of the grounds of defence relied on by Greenwood & Co., renders it unnecessary to notice the other questions which have been discussed, as to their liability. It appears that, after the maturity of the draft sued on, the plaintiff addressed a letter to Snapp, informing him that he had drawn on him for the amount of the protested draft on Greenwood & Co., at three months from date. He begs him to accept the bill and not let it be protested, either for non-acceptance or non-payment. At the foot of the letter is a calculation of the interest which had accrued on the former bill, which, together with the costs of protest, is added to the new bill. This new bill drawn at 90 days, from the 30th October, 1851, was accepted by Lewis Snapp, but not paid at maturity. Snapp was produced as a witness by Greenwood & Co., and the plaintiff objected to his testimony on two grounds: 1st. That he was a party to the suit. 2d. That he had an interest in the result. His testimony was admitted, and the plaintiff, by a bill of exceptions, has presented the question of its admissibility for our decision. The rule excluding a party to the record as a witness, cannot be extended to a case where the de fendants might have been sued separately. As it was not necessary to join them in the same action, there could be no reason on that account to deprive either party of the other's testimony. The mere fact of the witness being a party to the record, does not disqualify him as a witness. See 1st Ann. R., p. 228; 2d Ann. p. 890; 5th N. S. 455. The only interest which the witness had, and by which his testimony could have been excluded, was that resulting from his liability for costs, for which he would have been responsible to Greenwood & Co. if they had been cast in the suit. That interest was released, and we think his testimony was properly received. This witness testifies that the understanding he had with the plaintiff was, that the draft on Greenwood & Co. was to be given up when he accepted the new bill; and this fact is rendered probable by all the surrounding circumstances. The new bill was payable to the order of James Hall, Cashier, and thus a new creditor was substituted to the old one, and the bill on Greenwood & Co. must have been considered as extinguished by novation. The judgment of the Court below is, therefore, affirmed, with costs. P. F. MICHEL v. POLICE JURY OF TERREBONNE. A strict compliance with the law and police regulations must be shown, to legalize a sale of land A PPEAL from the District Court of Terrebonne, Cole, J. J. C. & A. Beatty, for plaintiff, cited Newcomb v. Police Jury, 4 R. 233; Michel v. Police Jury, 3 Ann. 123. W. M. Mercer & Winchester Hall, for defendant and appellant. CAMPBELL, J. This suit was instituted against the Police Jury of Terrebonne for the sum of $2,156, and interest from September 7th, 1852, for which sum, as is alleged, he agreed to make a road on a tract of land described as the land of Joseph Elizir, a non-resident; that the job was adjudicated to him by the Road Inspector, at public outcry, as the lowest bidder; that in pursuance of said adjudication, he proceeded to make said road, which was accepted by the proper authorities. The petition avers that the land belongs to Robert J. Walker, a non-resident, and claims payment from the parish directly, on the ground that the petitioner, by the failure of the road inspector properly to advertise and notify the absent owner, is deprived of his right to proceed summarily against the absentee. It appears from the record, that in the advertisement and adjudication, the work to be performed is described as being on the land of Joseph Elizir, and MITCHELL v. POLICE JURY. that the notification, as published, was addressed to Joseph Elizir. It further appears, from evidence adduced by plaintiff, that the land originally belonged to Joseph Felix, and not to Joseph Elizir, and that the title to it, at the time of the adjudication, vested, by several mesne conveyances, in Robert J. Walker, a non-resident. It is urged by plaintiffs that the notice given is not such as is required by law; that the absent owner, Robert J. Walker, not having been notified by the inspector, in conformity with law, deprives him of his right to proceed summarily against the land. It is contended on behalf of the defendant, that the insertion of the name of the owner in the advertisement was unnecessary-that it would be mere surplusage; that, in the advertisement made, the land was so described by boundaries, as to admit of no difficulty in identifying it. Whether it is necessary to insert in the advertisement the name of the owner of the land, need not now be decided. We are of opinion, however, that, if the wrong name be given the error is fatal. A strict compliance with the law and police regulations must be shown, to legalize a sale of land made to pay for work done on roads, and such proceedings must be closely scrutinized. Hiriart v. Morgan, 5 L. 45; Winchester v. Cane, 1 R. 421; Jeannin v. Millaudon, 5 R. 76. The diligence displayed by plaintiff in tracing the title to the land, would have enabled the defendant to ascertain its ownership. They have shown affirmatively that a proceeding against the owner of the land would have been ineffectual, inasmuch as he had never been notified, which, in our opinion, dispenses him from proceeding against the land, before suing the Police Jury. Lex nemem cogit impossibilia rect vara. Newcomb v. Police Jury, 4 R. 233; Michel v. Police Jury, 3 A. 123. Judgment affrmed. CAM Ꮯ CASSIMER TREMOLET V. THE PARISH OF TERREBONNE. YAMPBELL, J. The principles involved in this case, cannot be distinguished from those just decided in the case of Michel v. The Police Jury of Terrebonne. For the reasons there assigned, the judgment rendered by the District Court in this case is affirmed with costs. THE STATE V. THOMAS MAY. No appeal can be taken to the Supreme Court in a criminal case, until the punishment shall have attached, or shall have been incurred, by sentence of a court. PPEAL from the District Court of the Parish of Jefferson, J. C. Clarke, the accused. BUCHANAN, J. The defendant, having been convicted by a jury in the parish of Jefferson of the offence of receiving stolen goods, moved the court in arrest of Judgment. His motion was overruled, after argument. Thereupon, and before judgment and sentence pronounced upon the verdict, the defendant appealed. The Attorney General now moves to dismiss the appeal, on the ground that no sentence having been pronounced upon the verdict, there is no judgment from which the defendant can appeal under the Constitution. The appellate jurisdiction of this court exists in criminal cases, by article 62 of the Constitution, "whenever the offence charged is punishable with death, or imprisonment at hard labor." This provision we understand to mean, that the punishment shall have attached, or been incurred, by sentence of a court, in the particular case, where the appeal is asked; otherwise there is no foundation for the appeal. See Hornsby'; case, 8 Rob. p. 590. Appeal dismissed, with costs. 9a 69 48 798 48 1009 9 69 | Case 1 114 415. SLARK et als. v. BROOM & CAUGHLIN. Article 2236 of the Code, which declares that counter letters can have no effect against creditors or bona fide purchasers, is not to be restricted to cases where there is an authentic act from which the counter letter is to derogate. Therefore, where a counter letter shows that only a part of the purchase money of a ship had been paid, while the bill of sale registered at the custom house recited the entire payment-Hold: That the counter letter could not prevail against a judgment creditor. Α' PPEAL from the Fourth District Court of New Orleans, Reynolds, J. H. Gaither, for plaintiffs. D. N. & W. D. IIennen, for opponents and appellants. SLIDELL, C. J. Plaintiffs being judgment creditors of defendants, seized and sold, under fieri facias, the ship Diogenes. The heirs of Samuel Broom, former part owners of the vessel, filed a third opposition and claimed a vendor's privilege on the proceeds in the hands of the Sheriff. There was judgment against them, and they have appealed. It appears that the Diogenes being the joint property of one Draper and the heirs of Broom, was sold to effect a partition, and purchased by Caughlin in his own name. The bill of sale, which was registered at the New Orleans customhouse, recites that all the purchase money had been paid, but a writing signed on the following day by Caughlin, acknowledges that only one-third of the price had been paid. SLARK ET AL. v. By Article 2236 of the Code, "counter letters can have no effect against BROOM & CAUGH- Creditors or bona fide purchasers; they are valid as to all others." This arti LIN. cle appears to us conclusive against the appellants. It is said this article applies only to cases where there is an authentic act, from which the counter letter is to derogate. But it contains no express terms of restriction, and when the policy of the law is considered, we see no reason to exclude the present case from its operation. For here is a document which is not, it is true, an authentic act in the sense of the Code; but it is a document which has been, pursuant to law, registered in the public books of the customhouse, and so informed such of the public as thought proper to resort there for information that Caughlin had paid the whole price of the vessel. A document thus registered, has quite as much publicity as an act spread on a notary's books. Whether the rule of Article 2336, applies to ordinary private writings, it is unnecessary now to decide. Judgment affirmed, with costs. D. N. & W. D. Hennen, for a re-hearing : The third opponents respectfully ask for a re-hearing in this case, upon the following grounds: 1st. The court have virtually decided that the customhouse is an office of registration, the records of which have the same binding effect upon the public and the parties, as the records in our State offices for the registration of the sales of immovables. Where is the law for this? None is given in the opinion of the court; none was cited by the plaintiffs' counsel. The notice given by a registration in the State conveyance office, is an artificial and constructive notice-a fiction of the law created by express statute from motives of public policy. But there is no law creating any such fiction in the case of ships and other movables; and this was abundantly shown by the authorities cited by opponents, and which the court have passed over sub silentio. 2d. The court has not noticed the point that plaintiffs had constructive notice even according to the strict doctrine of registration, and that such constructive notice is equivalent to one made in due form of law. 3d. The court have said that the sale of the ship as recorded in the custom house, is not an authentic act; and yet it relies upon the article of the Code which the authority of Toullier and Merlin, quoted, shows is applicable only to authentic acts. Re-hearing refused. H. KEANE V. W. P. FISHER & Co. A sale is not divested of its character as a cash sale by a delivery before payment. Where a vendor who sells goods for cash consents that the purchaser may ship them before payment, he can not hold the purchaser liable for disposing of the goods before payment, under the 10th section of the act of 1840, entitled: An act to abolish imprisonment for debt. Where the usage proved is not in conflict with the law, the court may call the attention of the jury to it. A dormant partner need not be joined in an action by the ostensible partnership. Α' PPEAL from the Fifth District Court of New Orleans, Buchanan, J. Race & Foster, for plaintiff'; Counsels for defendants have most ingeniously endeavored to divert the mind of the court from this issue, by quoting the following authorities, viz : |