[Giraudel v. Mendiburne.]

the plaintiff ought not to have been permitted to show he landed goods of the defendant at Tabasco, because he had not alleged it. We think the parish judge erred in permitting the question to be asked.

But we are of opinion the fact thus attempted to be proved, was an immaterial one; because the plaintiff had not alleged it, and had alleged another, which dispensed him with the proof, that he unloaded any goods at Tabasco, viz. that the defendant did alter the voyage, viz. one from New Orleans to Campeachy and Tabasco, to one to Campeachy and Cysale.

The defendant, when the verdict was pronounced, did not pray, as he might, to have it set aside, as given on illegal evidence. would not prejudice him in this court, if the evidence appeared to us material; but while we feel it our duty to remand, when we apprehend a material fact has been permitted to be proved contrary to law we think ourselves bound not to put the party in possession of a verdict, to the unnecessary vexation and expense of a new trial, when the fact complained of as improperly proved, is of no importance. Bowman v. Flower, 2 N. S., 273.

The question of fact appears to us to have been correctly solved by the jury.

Damages for the frivolous appeal are asked; but while we admit that the plaintiff has introduced illegal evidence, we cannot mulct the defendant in damages, for having sought a relief, which we think we ought not give him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be affirmed, with costs.

Waggaman, for the plaintiff.

Canon, for the defendant.

Brooking v. Wade. III, N. S. 513.

THIRD District.

Case remanded by reason of verdict plainly contrary to evidence.

Ireland v. Bryan et al. III, N. S. 515.

THIRD District.

Service at the last place of residence in this state, is not of course at his usual place: already decided in Baldwin v. Martin et al., 1 N. S. 519.

Oldham v. Croghan. III, N. S. 517.

Held, a synallagmatic agreement may be given in evidence, though not executed in duplicate.

FIRST District.

When the cause was on trial, the plaintiff offered in support of the allegations contained in his petition, an agreement between him and the defendant Croghan. The introduction of this document was objected to, on the ground that it had not been executed in duplicate. This objection was sustained by the court; upon which the plaintiff offered the deposition of a witness, to show that the defendant had executed the agreement The testimony was opposed, because it was proving a parol contract, when plaintiff had declared upon a written agreement; of this opinion also was the judge, and the plaintiff suffered a nonsuit, and appealed.

We think the judge erred. The objection made, seems to us to have mistaken entirely the nature of the proof offered; it was not as defendant stated, to prove a parol contract where a written one was declared on; but it was to prove a written one had been executed, and the same declared on in the pleadings. On recurring to the petition to ascertain whether this evidence would have differed from the allegations therein contained, we find that instead of presenting any variance, it is in strict conformity with them. The petition states, that a written agreement had been entered into, containing a stipulation, that the plaintiff should hire the defendant certain slaves; that in

[Oldham v. Croghan.]

pursuance thereof he did deliver them; that the defendant received. them; that they worked on his plantation a year; and that he paid a considerable part of the hire. The bill of exceptions declares, that the deposition was offered to show the defendant had executed his agreement; which is the very allegation in the petition, for we are at a loss to conceive in what other manner he could have executed it, than by receiving the property, and paying the money agreed on for the hire.

We also think the judge erred in refusing to let the paper be read, although it was not executed in duplicate. Our Code does not declare that acts under private signature, which contain synallagmatic agreements, are null, unless there be as many originals as there are parties; it states they shall not be valid. The proof of their not being void results from another provision, which declares that if executed afterwards, they have effect as if made double. Although, therefore, they have not the effect of making proof of every thing contained in them, as they would have, the moment their execution was established, if made in as many originals as there were parties; they are still good as commencement of proof in writing. The obligation contained in them exists, and if it can be legally proved in any other way, its execution must be enforced; according to the maxim of all laws, and one on which we have so often acted, ut res magis valeat quam pereat. 12 Martin, 713; 6 Toullier, Droit Civil Français, vol. 6, lib. 3, tit. 3, cap. 2, nos. 22, 23; Ibid. vol. 8, cap. 5, nos. 320, 322.

We think, therefore, that the instrument offered in the court below, as it was a writing signed by the defendant, and had emanated from him, might on general principles be used in evidence against him. And the question recurs whether there was any thing contained in the petition in this case, which deprived the plaintiff of the right of using it. The objection that has been made on this ground, supposes a degree of technicality in our proceedings, which our laws do not. sanction. The statute merely requires a plaintiff to state his cause of action with the necessary circumstances of places, and dates. The best rule to insure a compliance with this provision is, to relate the case, as it has occurred, without running into unnecessary prolixity. This has been done, and we do not think the petition need have set out in what manner the writing was to have its effect; as a commencement of proof in writing, or as made double. Had it been executed in the latter form, and suit brought on it, there would have been as much reason for objecting to the petition, because it did not state that the instrument was obligatory, in consequence of having been so made, as there is in the present case, because it is not alleged that it has effect as a commencement of proof in writing. And yet, in the case first put, it is hard to believe such an exception would have been thought of. It is sufficient to apprise the adversary of the facts on which a claim is set up against him. The legal consequences resulting from them, may be shown on the trial. The plaintiff appears to have related his case as it occurred, and we would greatly regret if a

[Oldham v. Croghan.]

suitor in our tribunals could be turned out of court, and mulcted in costs, because he did not do something more.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the cause be remanded, with directions to the district judge to admit the agreement offered by plaintiff as a commencement of proof in writing, and also to permit him to prove it was executed in part by the defendant, and that the appellee pay the costs of this appeal.

Strawbridge, for the plaintiff.
Pierce, for the defendant.

Prentice et al. v. Waters. III, N. S. 522.

On the death of the defendant, and the appointment of a curator to his estate, the plaintiff may demand the removal of the case to the court of probates.

FIRST District.

MARTIN, J., delivered the opinion of the court.

After issue joined, the defendant died, and his wife took letters of curatrixship on his estate, and the plaintiffs, on a suggestion of these facts, prayed for the transfer of the cause to the court of probates, which was accordingly ordered. The defendant afterwards prayed for, and obtained the rescission of the order of transfer, whereupon the plaintiffs appealed.

The legislature having given exclusive jurisdiction to the court of probates, of all claims against vacant estates, it follows, the jurisdiction of other courts is thereby taken away, and that all suits pending in such other courts, must be cumulated to the mortuaria in the court of probates, which granted the letters of curatorship; for otherwise the will of the legislature cannot take effect.

It is urged that the plaintiffs may dismiss their suit, and institute it anew in the court of probates. This may be true; but the plaintiffs may, by doing so, lose many an advantage. Possibly prescription may have attached, the nature of the pleadings may have given him some legal and just advantage, which he may lose by dismissing his suit; he must at all events pay costs.

It is true, the legislature has pointed out no mode of transferring

[Prentice et al. v. Waters.]

the record; but in taking away the jurisdiction of one court, and vesting it in the other, the last has been virtually possessed of the means of exercising its jurisdiction, and that must be by the record being sent to it. Cum quid conceditur, conceditur et id per quod pervenitur ad illud.

It is, therefore, ordered, adjudged and decreed, that the order of the district court, rescinding the order of transfer, be annulled, avoided and reversed, and the order of transfer reinstated, and the case remanded to the district court, to be transferred to the court of probates, and the costs be paid by the appellee.

Whittelsey, for the plaintiffs.
Hennen, for the defendant.

Henry v. Cuvillier. III, N. S. 524.

Either party who discovers, during the trial, that one of the jury on the first trial has been sworn, may demand that another be substituted to him, and the denial of this is a good cause to demand a new trial.

FIRST District.

MATHEWS, J., delivered the opinion of the court.

It appears by the record that this cause was tried before a jury in the month of January, 1824, and that a new trial was granted at the request of the defendant, which took place in December, of the same year. The defendant being again dissatisfied with the verdict of the jury, moved in the court for another trial, which being refused, and judgment rendered on said verdict, he took the present appeal.

As a basis of the motion for a new trial in the last instance, in addition to the ordinary and formal grounds, of the verdict being contrary to law and evidence, two more are found. 1: That one of the jurors who tried the cause in the last trial had served on the jury, which rendered the first verdict. 2: That the jury, disregarding the charge of the judge a quo, in relation to the defendant's legal right to claim a credit against the plantiff's demand for money advanced, by him, to her, previous to the commencement of the present action, returned a verdict contrary to that charge.

We will examine these last two grounds. Being of opinion that either of them singly, is sufficient to support the appellant's motion;