HEWET & CO. vs. WILSON ET ALS., 7 La. 71

Bullard, J., delivered the opinion of the court. The plaintiffs in this case complain, that their store was broken open by a slave of the defendant, Wilson, and goods, of the value of five hundred dollars, stolen from them; and that the slave was conveyed out of the state by his co-defendant and overseer, so that they were unable to inflict on him the penalty of the law. They sue to recover the value of the stolen goods, and two hundred and fifty dollars damages. The defendant, Wilson, being an absentee, a curator ad hoc was appointed to represent him.

Both defendants appeared by attorneys, and severed in their answers. The defendant, Wilson, after an exception to the right of one of the plaintiffs to sue, without showing her husband’s authority; which has been waived, pleaded the general issue, and united in the defence made by Tuberville, his co-defendant. The latter pleaded, that the plaintiffs, according to their own showing, had no right of action against him, as the overseer co_defendant.

He further, denies the larceny, but avers that, being unwilling to screen the slave charged with the offence from punishment, he offered to surrender him to the civil authorities, or to suffer the plaintiffs to punish him; and that he was punished severely, and the plaintiffs expressed themselves satisfied. He denies having conveyed the negro out of the state, to protect him from prosecution.

Where all llie facts and circumstances of a case are placed before a jury of the country, who make up their verdict on all the evidence adduced, with a knowledge of the parties, they are considered much to°rdeo¡(i<Fe<beties^itigaut Sian the court, which spe^tUtheir°vcrdiet, unless clearly erroneous in law, or toryto^OT withdenee.eSal CV1" In a suit bj- a títutíonVfítoien goods in damages, where the wife is a party S^d^ations ?f her. husband matters in con-took1 a^Lctive ?re admisas forming a part bé^refa^as’repreanting bis wife of her partner.

Under this state of the pleadings, the case was submitted to a jury, whose verdict was in favor of the defendants, and the plaintiffs appealed. The evidence shows, that the store has been forcibly entered, and some goods were stolen; but there was no direct and positive proof that the theft was committed by the-defendants’ slave. Some articles were found in his possession on search, and were restored to the plaintiffs, and the slave was whipped by tbe husband of one of the plaintiffs, by permission of the overseer.

There is no legal evidence before the court, to show that more articles were stolen, than those which are proved to have been restored. The inventory made before the theft, and the one made afterwards, were both ex parte; nor do they exhibit specifically any articles. It does not appear whether the difference of two hundred and fifty dollars, between the two amounts, results from a different standard of appraisement, or from a diminished quantity of goods. It appears from the evidence, that the slave remained on the plantation, about six months after the larceny was committed.

All the facts were before a jury of the country, who, from ^eir knowledge of the parties and witnesses, were much more competent to decide between the parties, than we can be; and, although public policy as well as justice requires, tkat owners 0f slaves should be held to make full restitution for offences committed by them, yet we are bound to respect a verdict, unless clearly erroneous in law, or manifestly contrary to, or without legal evidence.

The only question of law presented, for the consideration of court, arises out of an informal objection to the admission of evidence, to prove the acts and declarations of the husband of one of the plaintiffs. It is true, he is not shown to be the agent of the firm, but as the husband of one of the partners, it is shown that he took an active

part in searching for the stolen property with the consent of the other partner, and . \ , . , _ ¶ rm i t ♦ inflicted corporal punishment on the slave. 1 he declarations made by him as to the amount lost, correspond with those made by the other partner. As to the declaration that he was satisfied, it referred to the punishment inflicted on the slave. He must be regarded as representing his wife, with the consent of her partners ; and his acts and declarations, as forming a part of the res gesta. at die institution tMedto^i^Sfor a?. allowance which is to be taxed in the costs of suit and paid by tlie party cast.

If he bean attorney lie may claim | fee as^for proces, or be aiiowIon fo£1S™!wi“Mo be paid in or out of the sonw)mn*LPre¡ presents. With this view of the law and evidence, we should affirm the judgment of the court, if it had condemned the plaintiffs to pay merely the ordinary costs of suit. But the court awarded to the curator ad hoc of one of the defendants, appointed at the inception of the suit, a fee of twenty-five dollars, and adjudged that it should be paid by the plaintiffs, as a part of the taxed costs. This court decided, in the case of Pontalba vs.

Pontalba, that a curator ad hoc is not entitled ’ to a fee. 2 La. Reports, 466. below must be reformed. In this respect, the judgment It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and proceeding to render such judgment on the verdict as ought, in our opinion, to have been given below, it is, further, adjudged and decreed, that the plaintiffs’ suit be dismissed, and that they pay the costs of suit, except the curator’s fee; and that the appellees pay the costs of the appeal.