
    
      LIVINGSTON vs. HEERMAN.
    
    
      East'n District.
    
    
      May, 1821.
    
    
      Whether a challenge to the competency of a juror should be made before he is sworn?-quere.
    
    
      But if the party who objects to him, refuses to consent that he shall withdraw, and be replaced by and another, he cannot allege it as error.
    
    
      When a cause is tried on special facts submitted to a jury, the law has not made any provision for taking down the evidence by the clerk.
    
    
      Private deeds of sale for real estate, are legal evidence to go to a jury.
    
    
      A party cannot complain of the withdrawing of a paper which has been received in evidence, if he accompanys his objection by the declaration that he does not intend to make use of it.
    
    
      On a trial in which facts alone are submited to a jury, the court cannot change them on points of law.
    
      
      Appeal from the court of the first district.
    
    
      Workman, for the plaintiff.
    
    
      This suit is brought in pursuance of the provisions of the 46th law of the 2d title of the 3d Partidas;—by which it is enacted, that no man shall be compelled to sue another, unless when he goes about declaring that, that other is his slave, or defaming him in his character, or slandering his title to his property. See n. 2 of Greg. Lopez on this law; also 2 Elizondo. 136, and Febrero, page 2, l. 3, c. 1, no. 2. In these and the like cases, he who is thus defamed or injured, may petition the competent judge to oblige the defamer to bring suit and prove what he has said, or to retract it, or make some other reasonable reparation.
    
    
      This kind of suit differs materially from the common law action of slander of title; that action is founded on the supposed malice of the defendant. But if he can shew any title or fair colour of title, to the property in himself, the plaintiff fails entirely in his suit. Vid. 6, Bacon Abridg. 221, 1 Jacob's law Dic. 36. He can in that case recover no damages; and damages form the sole object of the action. 
      But this suit of ours goes much further. If the defendant can shew no title whatever, then, as in the common law action, we have a right to demand and recover damages for the malicious slander of our title. if he can shew any sort of title, which it may be supposed he believed to be just, the presumption of malice is removed, and.he is discharged from all damages whatever. But he must then go on to the proof of his title, so that his claim to the property in dispute, shall be finally decided. Our law provides far more wisely than the common law in this respect; if in the common law action for slander of title, the plaintiff is defeated by the defendant producing a colourable title, the plaintiff is then without remedy. His adversary may continue with impunity to assert and publish his supposed right to the property in question, and thereby prevent its owner from ever disposing of it to advantage, and the owner can not compel the claimant to bring the question of his title to a judicial determination. Our law, on the contrary, will not allow this claimant to go on indefinitely, alleging a title to what another holds. He must bring that title to the test of the law, so that it may be.known.who the real proprietor is. It is obvious that this provision of the Spanish jurisprudence is as beneficial to the whole community, as to the individual interests at stake.
    
      The facts submitted, need not be specially set out in the petition and answer. It is sufficient if they grow out of the pleadings.
    A person who slanders the title of another to real estate, may be compelled to bring suit, to prove the truth of what he has said.
    And, if in answer to the petition filed for that purpose, he sets up his title, and the parties go to trial on the merits, the court will not set aside the proceedings, on the ground, that nothing could be enquired into but the question, whether or not he was obliged to make good his declaration by an action at law
    And, in such a case, the defendant is actor, and the onus 
      probandi lies on him.
    It is not necessary to enable the court to decide on the title for land, that there should be a prayer in the petition to be put in possession. After a cause has been fully tried on its merits, the court will feel great reluctance to remand a cause on a technical objection. The words frente a la levee, do not signify a boundary on the river.
    The purchaser of a riparious estate, under these expressions, does not acquire land on the river, when it is proved, that there was property susceptible of private ownership, beyond the levee.
    In our petition, we have exactly complied with the requisites of this law. We first allege against the defendant, his slander of our title, and demand damages for it; or if the defendant hath any title, that he may be obliged to produce it; that the court do then decide upon it, and if it be found insufficient, that he may be forever enjoined from disturbing the plaintiff in his rights to the land in dispute.
    The defendant in his answer does produce what he considers a title to this land; and prays that it may be determined by a jury of the country. Whatever may be our opinion of this pretended title, we are willing to suppose that it is not set up through motives of pure, disinterested malice, as a mere pretext for the slander of our title; but that the defendant offers it for the sole purpose of obtaining possession of our property. We therefore relinquished the pursuit of damages; and we went to trial with him on his title, in the manner he himself desired.
    It is perfectly immaterial whether this question of title be determined on the claim of the defendant being set forth in his answer, or on being set forth in a petition of his, in a distinct suit. He might, we think, have chosen the last method if he had preferred it. But the law is complied with by either mode of proceeding The mode he has chosen, is certainly the best, inasmuch as it prevents multiplicity of suits, and the consequent delays, and accumulation of expence.
    And yet, though he has gone to trial in the manner he himself made choice of, he has now the front to tell the court that he has subsequently brought another and distinct suit for this very land; but of such a suit there is no proof, no mention whatever on the record. This court can therefore take no notice of it. If it were brought, as the defendant alleges, it would be a nullity; being brought during the pendency of this suit for the same thing.
    What can be the meaning and object of such vexatious procedings? Is it intended to weary out my client with never ending anxiety? To compel him to waste his life in perpetual litigation? Or is there some latent hope that by tormenting him in this manner, he may be at last induced to do in this instance, what he has done in too many others of a similar kind; to make a ruinous compromise of his interests; to sacrifice his property for the preservation of his peace?
    The defendant, it appears, now becomes the actor in this suit; the sole object of which, from the course it has taken, is to try the title he has set up against the possessor of the land. The circumstance of the defendant, becoming the actor in the suit, occurs in various instances in the common law practice, as well as our own. It occurs in the action of replevin; (5 Jacob's law dic. 484,) when the defendant makes an avowry. It occurs in many peremptory exceptions, reus in exceptione actor est: particularly in the plea of compensation; when the defendant becomes clearly a plaintiff, and may by our law, obtain judgment and execution against the other, or first plaintiff in the suit, if the amount of the debt pleaded in compensation, exceed that of the debt due to the original plaintiff.
    The form of this suit resembles that of the interdicts provided by the Roman law. They are explained briefly in the 15th title of the 4th book of the Institutes. There can be no more difficulty in rendering a judgment in this case, either for or against the plaintiff, as the merits of the question may require, than there was in the well known action brought by John Gravier, against the mayor. &c., of New-Orleans. In that suit the plaintiff stated in his petition, that the mayor, &c. of the city of New-Orleans, pretended to some right in the batture, &c. and disturbed the petitioner by publications, tending to discredit his title, and the petitioner prayed that the mayor, &c. might set forth their title; and that he the plaintiff might be quieted in his possession.
    The judgment of the court was, that the petitioner be quieted in his enjoyment of the batture, &c. against the claims and pretentions of the defendants, &c. See the Report of the Trial, pp. 1, 49.
    The like judgment may be given for us, if the defendant fails in substantiating his title, provided that we shall have shewn any title, or a lawful possession in ourselves. If, on the contrary, the defendant’s title is good, and better than ours, the land will then be ajudged to belong to him, and he will, of course, be entitled to a writ or mandate of possession, whereby the judgment of the court should be carried into complete effect. If we were even unprovided with any form of such a mandate, this court would have a right to devise one. The present defendant, Dr. Heerman, is undoubtedly entitled to all the rights, benefits, and advantages which he could justly claim, if he appeared on the record, as the plaintiff, in a petitory action. The present suit is, in fact, one of that kind known in the Roman law, by the name of actio duplex. Yet, although the defendant has become the real actor or plaintiff in the suit, it were better to continue to designate the parties as they are named, plaintiff or defendant, throughout the whole of this record. To change these denominations now, might produce confusion. It might be a sacrifice of clearness and perspicuity to that verbal fastidiousness, which, in judicial proceedings, is only justifiable when it is indispensibly necessary to secure both.
    II. The objection to Mr. William Brandt as a juror, came too late, as it was not made until he had been sworn, 3 Bacon, 764. Mima Queen vs. Hepburn, 7 Cran. 290. Nor was it made for any cause which happened subsequent to his being sworn. The defendant’s attempt to confound the cause of challenge with his own knowledge of that cause, cannot avail him. The sophistry is too obvious and flimsy.
    But, independently of this circumstance, it really does appear from the record, that Mr. Brandt was an excellent and most impartial juror. His impartiality is attested by his declarations, that neither party had any right to the batture in question. His opinion in particular, as to the manifest want of title in the defendant, was pronounced in court, after he had been sworn on the jury, and had heard the defendant’s titles read. This shewed that he was attending to his duty, as a good juror ought. And we are persuaded that the impression which these title-deeds made immediately, on the sound, honest, unsophisticated understanding of W. Brandt, is the same which they produced on all who heard them, and which they will produce on the mind of this honourable court. It is not, however, very important what were that gentleman’s opinions with respect to the rights of the contending parties. He was called upon to find a special verdict upon specific facts submitted to him, and not a general verdict, by which the legal rights of the parties, as well as the facts of the case, would be decided.
    III. The statement of facts submitted to the jury by the plaintiff, is objected to by the defendant, because they do not, as he contends, fairly arise out of the pleadings, and are not pertinent to the matter in dispute.
    The first law on this subject, 2 Martin’s Digest, 156, ordains that the court shall examine whether such facts, &c., are within the pleadings, and strike out such as do not fairly arise out of the petition or answer. The next statute on the same point declares, that the pertinency of the statement of facts, shall be judged of by the court. The legislature adopted this last expression, no doubt on considering the frequent scantness and insufficiency of our written pleadings ; and that many facts might be pertinent to a cause, although not fairly arising out of the petition or answer in it. This may often happen, from our very defective practice of not filing replications, even when pleas and exceptions are made, which contain new matter, and various distinct facts. It is enough, on the whole, if the provision of the last statue is fulfiled. That it has been fulfilled, will be seen by the inspection of our statement of facts. They are all pertinent to the main issue of this cause, whether the batture claimed in it, belongs to the plaintiff or to the defendant. On that point, the adverse party cannot complain, that he has been taken by surprise. The contrary is apparent, from his own statement of twenty facts and eight supplementary questions, which go to every material question that our statement embraces. But, if the wonted ingenuity of his learned counsel, can detect, in his own statement or in ours, any fact not pertinent to the matters in issue, let it be struck out by the court. Quite enough will still remain for the determination of the cause.
    The learned counsel further objects, that our statement does not contain simple or naked facts, but facts which are more or less mingled or complicated with questions of law. This is the amount of his oral argument on the subject. His bill of exceptions upon it, is manifestly insufficient for want of due precision. But where does the law require, that the facts submitted shall be thus simple and naked ? One statute requires, that the facts shall arise out of the pleadings; the other, that the facts shall be pertinent. But neither act says or insinuates one word about this absolute nudity, in which, according to the learned counsel, these facts should be exposed. The truth is, that it is often impossible to present facts relative to the right to lands and inheritances in this naked state. The most simple, the most familiar language in which such facts can be set forth, must be founded upon or inseparably connected with notions and principles of law.
    For instance; no fact can well be conceived more simple and naked, than the fact of the possession of a house or estate. It is a fact, which no one ever thought of objecting to, as improper to be submitted for the finding of a jury; yet there is no fact more frequently mingled with questions of law. I may possess a room in a house; that is a matter of mere fact. But will the possession of a single room give me the possession of a whole house, containing a dozen apartments? That is a question of law to be determined, according to the circumstances of the case. Will the possession of the key of a building, give possession of the building itself ? Will the possession of an acre of ground, be the possession of an estate of the 500, or 5000 acres adjoining ? These are questions, and often very abstruse and knotty questions of law. Questions which the general and immutable law of nature cannot always solve, and which positive municipal statutes are therefore requisite to determine. Facts may be known and proved to exist, though they cannot be entirely separated from every law; in the same manner as in chemistry, the existence of oxygen is demonstrated, although it never has been found, except in combination with some other substance. But the defendant is absolutely precluded and estopped from availing himself of this exception. His own very ample statement of facts and questions, is acknowleged to be as much mingled with law as ours. It is too late for him to decline the forum, and the proceedings which, as the record shews, he himself has chosen. The case of Center against Stockton & al., 8 Martin’s Rep. 211, has decided this point against him. It would be too unjust, too preposterous to suffer a party to play the game of litigation in his own way, and on his own terms, with every chance of winning the wager; and yet, if he should lose it, to allow him to withdraw his stake, and play the game over again, in a new manner.
    
      The object of our statutes was evidently to require juries, in certain cases, to give special verdicts. If there be any thing doubtful in those legislative acts, it may be explained by referring to that system of jurisprudence, from which the trial by jury is taken. In England it will be seen, 7 Bacon’s Abridg. p. 7, &c., that special verdicts very often, and no doubt unavoidably, contain matters of fact, mingled with matters of law.
    But not to leave any doubt or difficulty on this point of the cause, it will be seen on examining the record, that the jury have found facts enough, facts as clear, as simple, and as naked as such facts can ever be presented to the mind, to enable this court to make a final decision of the cause on its merits, and annihilate forever the inequitable, unjust, and unrighteous pretensions of the defendant.
    If the jury have found any matter of law, distinct from fact, the finding is only a surplusage, and can do no hurt to either party.
    The defendant objects to the jury’s having found some of the plaintiff’s title-deeds without setting them forth. This objection is now inadmissible. He might have taken his exceptions to these deeds, when they were offered in evidence; and then they would have been set forth in the bills of exceptions, and this court would have been enabled to judge of their sufficiency. He did so, as the record shews, in two or three instances. He might have done so in all the others, if he had thought fit.
    IV. The defendant excepted to a plan offered in evidence by the plaintiff at the trial. The judge over-ruled the exception; but the plaintiff thought it safer to withdraw his plan, and not let it be taken as testimony. By thus withdrawing the instrument, we complied with the defendant’s wish. We acceded to his exception—could he demand or expect more? Yes, he now contends, that he ought to have had the advantage of commenting upon and arguing against the very deed which, in the same breath, he contends was inadmissible in evidence. Is not this a preposterous inconsistency ? Can he be allowed to maintain, that the plan is bad as evidence, and good for the purpose of being argued upon, as if it were evidence, that is, both good and bad at one and the same time ? But, says the learned counsel, a party cannot withdraw any deed or writing which he has once filed or offered in court. We should not have withdrawn the plan in question, if he had withdrawn his exception to it. We could not, with safety, have suffered it to remain, while his exception to it stood on record. This would have been to risk the remanding of the cause for a second trial. But if the counsel really wanted to avail his client of any thing which that plan might prove, he should have withdrawn his exception to it in the court below. We have no objection, that he shall do this now, and make any use of that plan which he may think fit. But he must not complain, that he had no opportunity of arguing on that plan before the jury, when he himself, deprived himself by his own act, of the opportunity afforded him of doing so. The plan is declared by the jury not to be found; so that, whether it were good or bad, it can furnish no ground for remanding the cause for another trial. What the advantage is which the gentleman complains, that his client has lost by the withdrawal of this plan, may be judged of by this court, from the gentleman’s argument upon it. He has contended, that it would prove, that the batture, forming the subject of the suit, belongs to the public, and not to either the plaintiff or defendant. Such an argument might be of some use to the defendant, if he were in possession of the premises. But as he sues to acquire, and not to maintain a right, it is of no consequence to him who owns the property, unless his title to it be good. If it belongs to the public, as is pretended, it must remain with the present possessor, until the public shall assert and prove their right to it.
    V. The defendant has also excepted to some of the titles of the plaintiff, on the pretext, that they were made and passed by private signature. This exception has not been, and it is believed, cannot be sustained. The law requiring registries and other public acts, is for the benefit of third parties only. Between the parties themselves to an act, it is undoubtedly as valid, when made under private signature, as it would be if executed before a notary public.
    VI. The exceptions to the judge’s charge, are next to be considered. The defendant complains, that the judge refused to charge the jury on certain points of law, on which he was requested to state his opinion to them; and that, on the other points of law, the opinions delivered by him to the jury were erroneous.
    As the jury were impannelled to try facts only, it was not necessary for the court to have given them any charge at all on matters of law; nor can it affect their finding of any matter of fact, whether the charge actually given were, or were not erroneous, on any legal question. The law on this case, this court will presently see, is quite clear, independent of the decisions in the case of Morgan vs. Livingston. And sufficient facts, plain, naked, unencumbered facts are found by the jury, to enable the court to apply that law, and render a final judgment in the cause.
    VII. The defendant prayed for a new trial on various grounds, filed in the court below, and now annexed to the record. That court refused to grant it, and the defendant excepted to its decision.
    Many of the grounds on which the new trial was asked for,have already been discussed and disposed of. If these were not sufficient for remanding the cause, though no new trial had been required, they cannot, of course, justify the granting of a new trial.
    But there is another ground on which the defendant seems to rely : he alleges that the verdict is contrary to evidence in some parts, and without evidence in others. And he objects that the parole testimony was not taken down in writing, as he required, at the commencement of the trial, whereby this court might be able to judge whether the verdict was or was not conformable to evidence.
    In the first place, we contend that these grounds are not stated with such precision as that this court can decide, whether the judge erred or not in declaring them insufficient. The defendant, instead of stating generally, that the verdict; a verdict consisting of more than forty distinct findings, on as many distinct propositions or questions, was against, or without evidence, should have stated specifically what part, or finding of that verdict was liable to these objections. Without such a specification, this court can not say whether the judge below exercised his discretionary powers wisely or not, in refusing a new trial.
    To determine whether either party had a right to insist that the parole testimony should be taken down by the clerk in writing, we must refer to our statutes on this subject. The general law regulating the trial by jury in those countries from which we have taken that admirable part of our jurisprudence, gives no such right to either party. Notes of the evidence are taken by the nisi prius judge who tries the cause; and to these notes the parties and the court refer, when the evidence is made a ground for asking a new trial.
    The 18th section of the act of 1817, (p. 32,) provides for the statement of facts, and the finding of special verdicts upon them. The 12th sec. of the same statute ordains, “ That when any cause shall be submitted to the court or to the jury, without statement of facts, &c. the verbal evidence shall, &c. if either party require it, &c. be taken down in writing, by the clerk of the court, in order to serve as a statement of facts in case of appeal, &c.” Without this statute neither party could require the evidence to be so taken down. But this statute is confined to the cases where there is no statement of facts: it is not therefore applicable to our case, in which each party submitted a full statement of facts. The defendant then had no more right in this case to require that the evidence should be taken down, than he would have had before this statute was made; but no one ever had, or claimed such a right until that statute gave it. The object of that act is expressed and manifest. It is to provide what may serve as a statement of facts. When a special verdict finds the facts, no such statement is necessary. It would he a mere surplusage and incumbrance on the record : and it was no doubt to prevent the delay, trouble, and expence of such a proceeding, that the legislature put it in the power of either party to demand a special verdict when he thought proper. If neither the law of this state, nor the general law concerning the trial by jury, give the right which the defendant insists upon, what or who else can give it? Not this court certainly. Their powers are exclusively judicial. They cannot alter the usual mode of jury trial, further than our statutes authorize, whatever utility or convenience might arise from the proposed alteration.
    The innovation required in this respect, is by no means necessary, as the learned gentleman contends, to enable this court to decide whether the judge below refused anew trial in this case improperly. The defendant might have referred, according to the well known practice of the common law courts, to the judge's notes for that part of the evidence on which he founded his application for a new trial, If the communication of these notes were refused to him, he might have presented an affidavit containing the substance of that evidence, and have annexed that affidavit to his bill of exceptions to the judge's opinion. In either case, the requisite facts might have been ascertained and brought before this court. In the progress of the trial he might have taken down so much of the testimony as he might think would be necessary for this or any other lawful purpose: and in fact, we know that the learned gentleman did, with his usual diligence, and no doubt with his usual accuracy, take down all the material parole evidence that was given in the cause. He had it in his power then, to produce every thing which could have enabled him to assert his right to a new trial, on this ground, without the aid of a new law, or an embarrassing practice upon the subject.
    I examine the exception to the not taking down the testimony, merely with respect to the question of a new trial : in no other view can the enquiry be necessary. What reasons then could the learned gentleman urge for this purpose, at the commencement of the trial, why the evidence should be taken down as he desired ? That it might be necessary to support a motion for a new trial, if the jury should find a verdict which ought to be set aside ; that the judge might take no notes, or might take incorrect notes; or might lose his notes of the evidence, and that the said judge might also give an erroneous decision on the motion for a new trial. These are suppositions, mere gratuitous suppositions, not one of which can be fairly presumed. And even admitting them all, admitting that both judge and jury should neglect their duty, and should give erroneous verdicts and judgments; even all these admissions, would not, on this occasion, avail the defendant. The answer to him would be; if you apprehend all these neglects, faults, errors and evils, make a correct note of the testimony yourself; annex an affidavit of so much of this as you may have occasion for, to the paper setting forth your grounds for a new trial, and you will then bring the whole subject completely before the supreme court, if justice should be refused to you in the court below.
    If this cause should be remanded for a new trial, on the ground that the whole testimony was not taken down in writing, then it will be so remanded, not because this court know or believe that a new trial ought to be granted, but because they wish to know whether a new trial ought to be granted or not. It would be a remanding of the cause for experiment, or through curiosity. And this might lead to very absurd as well as dangerous consequences. If the evidence on the second trial should be different from that on the first, as might happen from the death of some of the witnesses, or various other causes, then the jury might on this evidence give a verdict different from that of the former jury; although the first verdict should have been according to the testimony on which it was founded, perfectly just. Thus, would this court be led to an erroneous conclusion, and one of the parties be by this unprecedented experiment, deprived of his property.
    Very different is this case from one where the court should have no statement of facts, or evidence to serve instead of it, on which they could give a judgment, by affirming, reversing, or correcting the judgment of the inferior court. It is not pretended that there are no facts presented in this case whereupon to found a final judgment. Such facts are essential, are indispensably necessary for the due exercise of the appellate jurisdiction of this tribunal. And where a judge neglects or declines to make a statement of facts, in a case where it is his duty to do it, this court will of course remand the cause. Such was their decision in the case of Porter vs. Dugal, 9 Martin’s Rep. 92, where the parties having agreed that a statement of facts should be made by the judge, he declined making it, having forgotten the facts and lost his notes.—The plaintiff had moved for a new trial on the ground of new and material evidence discovered &c., and on the ground that the verdict was contrary to evidence. And the parties agreed that a statement of facts should be made by the district judge, who promised to do it. Afterwards, being called on for it, he answered that he had lost his notes, and could make no statement. In this respect the case differs most materially from ours. There the party asking the new trial, was in no fault.—The judge promised to make the requisite statement, and the other party agreed to it. If no such promise and agreement had been made, the plaintiff himself might have obtained a statement of the facts in question, by proper affidavits, and have annexed them to his bill of exceptions in the same manner the defendant might have done in the present suit, so as to enable this court to decide without remanding the cause. But our adversary has done nothing to entitle him to the like indulgence. It does not appear, nor is it I believe the fact, that he asked the judge below for any statement of the evidence from his notes; he did not present any such statement to the judge, requiring him to recognize its correctness, by inserting it in, or annexing it to, the bill of exceptions, offered on the judge’s refusal to grant the order for a new trial. No consent whatever has been given by the plaintiff, as in the case to which I have referred. In that case, the plaintiff was in no fault whatever; he omitted nothing which he ought to do, for the end he proposed. In our case, the defendant has no one but himself to blame for not having taken the measures necessary to bring the requisite facts to the knowledge of this tribunal.
    
      This court can only judge from the record before them, of what passed on the motion for a new trial. We see on that record, the grounds or reasons offered by the defendant, with his bill of exceptions, and nothing more. Nothing more can be presumed then to have been offered on the part of the defendant, or he would have asked for it, when he applied to this court for a mandamus, requiring the district judge to sign his bill of exceptions. Was it possible, I would respectfully ask, for any judge to have granted a new trial, on the grounds so vaguely and loosely stated, of a finding without evidence, and contrary to evidence ? The verdict of a jury of twelve men, on their oaths, must surely be presumed good, until the contrary be shewn, especially when that verdict is on matters of fact. What in effect is shewn by the defendant, in the paper containing his reasons for a new trial ? Not a word, whereby the judge could tell wherein the verdict was groundless, or erroneous. The trial had lasted nine days, and a large number of witnesses had been examined, upon thirty or forty distinct facts. Was it enough, in order to obtain another trial of such a cause, to allege merely that the verdict was without evidence, or contrary to evidence ? Was it not proper and necessary, in justice to the court below, and to this court, to have stated, article by article, wherein the several findings of the jury were supposed to be thus erroneous ? Then the district judge could have referred to his notes of the evidence, and decided accordingly. Then a full and satisfactory statement of the particulars might have been put on record, for the information of this tribunal. All this, no doubt would have been done by the defendant's learned and diligent counsel, if he were not well convinced that it would have been labour worse than lost; that it would have made the badness of his cause even more conspicuous and flagrant than it now appears.
    The principal purpose of this statute, respecting special verdicts, was, I conceive, to render the trial by jury more plain, easy and effectual. To insist on taking down the whole testimony, in such causes as these, where a multitude of issues and questions are submitted, would be, in a great measure, to defeat that purpose. It would be to render the trial by jury, in such cases, almost impracticable ; at least, so very tedious and painful, as to make it an object of dread to those called to administer and attend to it. If it were desirable to make the jury-trial unpopular and odious, a better measure could not be adopted. Let us suppose a jury summoned in the month of July or August, to try this cause. Without taking down the testimony, this trial lasted nine days. And if the testimony had all been taken down, the period of the trial must have been twice or thrice as long. An attack of the bilous fever would be hardly less annoying than to serve as a juror on such a trial, in the summer season. That no such tedious and vexatious proceedings are requisite for the purpose, the defendant professes to have in view, (the obtaining of a new trial) will appear from the proceedings in the case already referred to, of Porter vs. Dugal. That too, was a case where several special issues were submitted to the jury. No one asked, desired, or imagined to have the whole testimony taken down. A motion was afterwards made by one of the parties for a new trial, on grounds similar in part to those relied on by the present defendant; and yet we find that party no loss, as to the facts for determining his motion, from the circumstance of the parole evidence not having been taken down. The judge was properly applied to, and promised to state those facts. And he would have had no difficulty in fulfilling his promise and his duty, but for the accidental, and we may presume, rare circumstance of having lost his notes. The apprehended recurrence of circumstances so unusual, cannot he made the foundation for an embarrasing alteration in the law, or in the practice of a mode of trial, essential to our security, and which ought, by all means, to be rendered, in this state especially, as easy, as simple, and as little burdensome as possible to its worthy inhabitants.
    We are at length prepared to meet the merits of the cause.—Here the counsel went into an examination and developement of the law of alluvion, the causes for which it appeared to be established, and the principles by which it should be expounded and applied. He endeavoured to shew, that whether the law In agris limitatis, was or was not of force in Louisiana, the defendant’s land could not be entitled to any augmentation by alluvion, inasmuch as it was bounded on all sides by fixed, invariable lines, and that the river never was, or had become its boundary, or added any thing directly to it, by way of alluvion ; that the intervention of a public road alone, between a field, not bounded by the river, and that river, would in all cases prevent the owner of such land from having any right to the alluvial soil added by the river to that road, unless the state or sovereign to whom the road belonged, should make an exception to the general law of alluvion in favor of such proprietors. On these points the counsel cited various authorities from the Roman, the Spanish, and the French Codes, with the opinion of several commentators upon them. But whatever doubts, he observed, might exist on any of those, or other controverted doctrines, the court would feel themselves bound to decide this cause for the plantiff, on those principles which they had declared to be law in the case of Morgan vs. Livingston, and others.
    The claim of the defendant, Dr. Heerman, differs from that of Mr. Morgan, according to the special finding of the jury, in several material circumstances.
    1. The lot of Heerman is declared to be a limited field, and not to have been bounded by the river.
    
      2. The batture in front of that lot, is found to have existed, in a state susceptible of ownership, at the time of the sale under which he claims.
    3. The bank opposite to the lot did not pass as an accessory to it.
    4. The words of description in this case are, front to the levee, and not as in Morgan’s deed, front to the river.
    5. It is found here that neither the defendant, nor those under whom he claims, did repair the levee at their expence.
    The foundation of the defendant’s claim is a deed of sale by Bertrand Gravier and his wife, dated 10th of January 1789, to John Vessier, of the land in question, which is described as situada fuera de esta ciudad, y hacienda frente à la levee de este rio. From John Vessier it was transferred to the widow Trudeau, and afterwards it became the property of F. Trudeau, by whom it was sold to the defendant. In the transfer from F. Trudeau to the defendant, there are circumstances worthy of special remark: the act of sale, dated 30th December 1817, conveys the land to him in these words, “ all that lot of ground owned by said Felix Trudeau, situated in the suburb St. Mary, of this city, forming the corner of Levee-street and Girod-street, being in the front of the former seventy-three feet, eight inches, &c. It was soon found, that those words would not give the vendee a boundary on the river; and it was also discovered, that there had been some error in the direction of the side lines, and consequently of the line bounding the back part of the lot. To remedy these defects, a second act was ingeniously devised. It is dated 27th of March, 1818, and is called, an act ratifying and confirming the foregoing one. It states, that the plan annexed to the first act, having been found erroneous, from a survey which had since been made of the adjoining lots, the same should be corrected, &c. in the side lines, whereby a few inches were gained in the back part of the lot. And then this supplementary act goes on to say, “ and that the description of said lot shall be as follows : to wit, fronting the river, seventy-three feet, eight inches, &c.
    On these titles, the court will please to observe,—
    1. That the only errors in the act of sale of December 30, 1817, which it was the object of the ratifying act to correct, were the errors in the back and side lines, the front line remaining exactly as before. It could not then have been the intention of the parties to run the side lines out to the river; for, from the oblique direction of those lines, that would have given to the front line an extent four or five times greater than the deed of sale specified.
    2. Whatever may have been the intention of the parties, the vendor, Felix Trudeau, could not transfer any thing more than he himself possessed or had a right to. But the words of the deed of B. Gravier to Vessier, under which the defendant claims, are fronting the leveė of this river; words which could not, according to any mode of construction, liberal of rigorous, give the claimant any right to carry his front boundary farther than the levee.
    3. Even if the words, fronting the river, were to be admitted as the true description of this lot, they could not carry its front boundary to the river; for that would give to the whole lot above five times the quantity of land contained in the plan, and described in the deed. And this court has declared in Morgan vs. Livingston, 6 Mart. Rep. 225, that if the words, front to the river, or any other similar expression, would extend the lines so as to include four times the quantity of land called for in the deed; the court must deviate from the received sense, in order to avoid falling into an absurdity.
    4. But the jury have removed all doubts and difficulty on this part of the subject, by their finding, on the fourth special fact in the plaintiff’s statement, that the words frente à la levée, in Spanish, or their equivalent expressions in French, have not been used in this state, while it was a territory or colony, to signify a boundary on the river.
    Now this court, as well as the superior court of the late territory of Orleans, have constantly held, that such words in a contract, are to be understood in their most usual and known signification, and that that signification may be ascertained, as a fact, by parole testimony. That fact has been explicitly found, with respect to the words of description used in the conveyance under which the defendant claims the batture in question; and this court is so far bound by the verdict. On this ground alone, we are entitled to a judgment against Dr. Heerman.
    Independently of this fact, the jury have found another, equally decisive in our favor. This is the sixth of the plaintiff's facts, which the jury find to be true, as follows :—That when Gravier sold to Vessier, there existed outside the levee, and between it and the river, a parcel of land, partly original, partly formed by alluvion. That a part of it might have been reclaimed, occupied, and converted to the use of the proprietor, which land being since increased by alluvion, is the premises in question. The jury also find, that the sale did not speak of this land.
    If this part of the verdict stood alone, the defendant must lose his cause by it. The doctrine, that the sale of a lot of ground would include and carry along with it, a tract of land four times as large as that lot, not mentioned in the deed of sale, and lying on the opposite side of a wide public street or road, would be insupportable in every sense of the word. On the whole, Dr. Heerman is not entitled to this batture, either as an accretion, an accession, an accessory, or an appendage, because his lot was never bounded by the river; and because this batture was formed and was susceptible of being appropriated before he became the owner of that lot, and is not specified in the conveyance under which he claims it.
    
      This is the third time that the claims of the front proprietors, to the everlasting batture, have been tried and decided by jury in this city; and in every case, the verdict of the jury, whether general or special, pronounced those claims to be illegal and unjust. We frequently adduce the opinions of other judges and tribunals, even those of foreign countries, in support of our arguments and our causes. I would, on the present occasion, offer the verdicts, the unanimous verdicts, of three juries of New-Orleans, as an authority entitled to high consideration and respect; not merely in so far as those verdicts are decisive of certain fronts, but as they furnish a fair construction of the law applicable to those facts, or with which those facts are connected or co-mingled. The law in question, relates to one of the plainest and commonest transactions of the business of life; the contract of buying and selling. This contract, the great legislators and jurists tell us, is founded upon and regulated by the law of nature; that is, in simpler phrase, by the rules of good sense; by those rules of conduct acknowleged to be suitable and beneficial to all men, in whatever state of civilized society, and under whatsoever government they may be placed. Clear and explicit, and obvious, however, as these rules generally are, some of them may, in their application to particular cases, admit of controversy. To what authority shall we appeal in such cases? To that common sense and common honesty in which this universal and immutable law originates. When Grotius, the oracle of the law of nature and nations, investigates any dubious question, to whom does he appeal to decide it? Frequently to the celebrated poets, and orators, and historians of the world; not as possessing in themselves any authority to determine such difficulties, but as promulgating the general opinions and sentiment of mankind, to which, as the last resort, the decision of all such questions must be referred.
    The general opinion, the general sentiment, calmly, cautiously and steadily expressed, of plain upright men, on any ordinary dealing or transaction with which they are well acquainted, and on which they are not biassed by any particular interest or affection, is entitled to great respect, and ought generally to be decisive, where positive municipal laws do not otherwise determine. The juries of whom I speak, were composed of honest, intelligent men, the principal occupation of whose lives was buying and selling. If they felt any partiality in the causes they had to try, it was much more likely to be for the front proprietors, many of whom are wealthy and influential men, bank directors, and the like; than in favor of the opposite party, consisting of some poor, unknown foreigners; and a few of our own countrymen, not distinguished for opulence or invested with power. And yet those three juries; thirty-six of our worthy fellow-citizens, have declared unanimously, on their oaths, that the sales of the front lots of the suburb St. Mary, did not convey to the purchasers any title to the opposite batture.
    The concurrent verdicts of three juries are considered in the united states, and in England, as conclusive. Even when the courts believe such verdicts to be contrary to law as well as to evidence, they will not set them aside, or disturb them by granting any more trials. After three concurrent verdicts in ejectment, the courts of equity will issue their injunctions to prevent further litigation on the titles determined by those verdicts. This, it is true, takes place only where the litigation is between the same parties, for the same thing, and in the same rights: but it serves to shew the veneration in which the trial by jury is held in those states in which the civil rights of men are best understood and secured. This court assuredly prizes those rights as highly as any tribunal can do: it will therefore maintain inviolate that noble institution which is their most effectual safeguard.
    
      Hennen, for the defendant.
    It is admitted that the remedy for what may be termed a slander of title, is more extensive by the law of this state, than that which is provided by the common law of England. But the authorities (all founded on the 46th law, 2 tit. 3 part) quoted by the counsel of the plaintiff do not go the full length to which they are attempted to be extended in this action. The remedy provided by the Partidas, extends no further than to obtain a judgment against the party setting up a claim to the prejudice of another, ordering him to institute an action within a given time, to the end that his rights may be judicially ascertained. To this the defendant has, and can have, no objection. But to insist, because he has had the candor and good faith to set forth the nature of his title to the estate in controversy, that therefore the defendant shall be compelled to litigate his rights with the plaintiff, on his own terms, is more, far more than the law authorizes; though the plaintiff in a cause is bound to make out his case by legal proof, yet in many respects he has a decided advantage over the defendant. The plaintiff need not institute his suit until he is perfectly prepared with all his requisite evidence; and should he find himself mistaken or unprovided at the trial, he may discontinue. Not so the defendant, he is at the mercy of the plaintiff; and being so, an unfair plaintiff may take the advantage of him at the moment when most unprepared. So in the present action, the defendant is mocked with his pretended advantages of being the actor, or real plaintiff in the cause: and told that he has every advantage which he could have had, were he plaintiff This is very far from correct. The plaintiff, E. Livingston, could, and no doubt would have discontinued his action, if the special verdict had been found in conformity with the clearest evidence that was ever presented to a jury; evidence far clearer and more positive than that on which this honourable court decreed the batture to Benj. Morgan, against the present plaintiff. But the jury having found a verdict in conformity with the views of the plaintiff, in vain would the defendant move the court for leave to discontinue; much less would the plaintiff consent to give him such right as could not be refused him, were he in fact the plaintiff in the cause. Such considerations alone, without dilating, are sufficient to determine the judgment of this honourable court, not to extend the remedy beyond the provisions of the law; however plausable arguments may be used for the utility and convenience of another course.
    It is said, however, that the defendant consented to this mode of trial, and that after verdict it is too late to make the objection now taken. The defendant no more consented to the trial than he did to the institution of the action. Every thing has been done, not only without his consent, but in violation of his rights as claimant of the property in contest. The defendant, it is true, has done all he could to protect himself in defensive warfare; but as yet he has not had the opportunity guaranteed to him by law, of attacking his adversary in the time, place, and manner which might have produced a totally different result in the special verdict, which now stains this record. The defendant, though he has asserted his rigid to the batture, does not in his answer, claim any thing more than to be dismissed. He denies the right of the plaintiff to the $20,000 damages, claimed for the alleged slander of his title; but does not pray for any thing in his favour. It is then most incorrect and unfounded on the part of the plaintiff’s counsel to say, that if the special verdict could have warranted it, judgment might have been awarded in favour of the defendant, to recover that which he does not pray may be granted to him. Had such a special verdict been rendered in this case, as its merits and the evidence, required at the hands of the jury, the defendant could have been met with objections perfectly unanswerable: no decree could have been pronounced in his favour against the plaintiff for restitution of that which, indeed, he asserted was his; but for which he had made no prayer of restitution. Had the court a quo have been disposed on such special verdict, to render a decree of restitution against the plaintiff, would he not have exercised his right of discontinuance of the action to prevent it? The defendant could not have prevented it. Should not the inconveniences of the doctrine contended for by the counsel of the plaintiff, be apparent in this action, they must and will be in others, if a precedent is established by this honourable court, at variance with the principles of jurisprudence of every civilized nation.
    For these reasons, the defendant contends, that this honourable court, disregarding all which occurred at the trial, ought to decree, that the defendant, as is prescribed by the Partidas, shall bring his suit within a specified time, for the purpose of ascertaining, by the judgment of a competent tribunal, his rights to the property, of which he has asserted himself to be the owner.
   Porter, J.

The petitioner asserts that he is the owner of a lot of ground situated in the fauxbourg, St. Mary, having certain metes and boundaries on which he has made improvements; that he has wished to sell it, and that he could have obtained a great price for it. But that one Lewis Heerman, of the said city, gives out in speeches, that he is the owner and proprietor of the same; that he (the petitioner) had requested him to desist from thus slandering the title, or if he had any just claim for the property, to bring a suit for it. That the said Heerman will neither give up his claim continues to assert his right to it, to the damage of the petitioner, $20,000.

The petition concludes with a prayer, that Heerman may set forth his title, if any he has, or pretends to have, for the said parcel of land, or any part thereof, and on his not producing a satisfactory title, that the petitioner may be quieted in his possession against his said claims and pretensions; that he be decreed and enjoined utterly to desist therefrom, and if the court shall decree that the said Heerman is the true owner of the said premises, that he be decreed to pay for all the improvements which the petitioner has made on the land, and expences by him incurred therein, to the amount of $90,000.

The defendant answered, denying all the allegations in plaintiff’s petition; and specially alleged, that he was the true and lawful owner and possessor of a certain lot of land, situated in the suburb of St. Mary, having certain metes and bounds; that the prolongation of these boundaries to the river, included all the land within them, known by the name of batture; that the plaintiff has not any legal title to the said premises, or any part thereof; and he further prayed that he may set forth his title, or pretended title, under which he claims.

The defendant further answered, that all the improvements made by the plaintiff on the premises, were made in his own wrong, and were an injury to the defendant, and concluded by a prayer that the premises may be enquired of by a jury.

The real question arising out of this petition and answer is, whether the alluvion or batture, in front of a lot, on Chapitoulas road belongs to the plaintiff or defendant? The plaintiff asserts his right to it by possession and a conveyance from the heirs of Bertrand Gravier. The defendant claims in virtue of a sale made by said Bertrand Gravier and wife, in the year 1789, to one John Vessier, and by said Vessier, regularly conveyed, by several mesne conveyances, to him.

This cause was tried by a jury; on the part of the plaintiff, nineteen facts were submitted; on that of the defendant, twenty-one; and eight questions.

Before we can arrive at the merits of the cause, our attention is called to various bills of exceptions taken by the defendant.

I. The competency of Brandt, one of the jurors, is first objected to. From the first and second bill of exceptions, it appears that the plaintiff discovered this defect, after the jury were sworn, and that he immediately communicated it to the court, offering to withdraw this juror, and replace him by another, or to go on and try the cause with the remaining eleven; to both these propositions the defendant refused to accede.

1821. It does not very satisfactorily appear that the juror was incompetent; for though the declaration made by him applied to the defen- dant's title, he followed it up by asserting, that he did not believe either of the parties had a right to the property,-that it belonged to the

public. The plaintiff insists that the challenge should be made before the juror was sworn, and that it came too late. Such is declared to be the law, 3 Bacon ab. 764. 7 Cranch, 290; and a new trial has been refused when the objection was not taken in due time. 2 Bay, 150. But it is unnecessary to examine that point, and see whether cases might not arise which would be properly an exception to the general rule. For as the defendant in this cause refused Permit the juror to be withdrawn, he cannot now make his incompetency the ground for remanding the case for a new trial.

II. The defendant, on the swearing of the jury, called on the court to direct that the evidence about to be given should be taken down by the clerk; this was refused; and a bill of exceptions being taken to this opinion, a question of some importance is presented.

This court, which has supreme appellate powers, is limited as to the manner in which it exercises them, and can only take cognizance of causes brought before it in that way, which the legislature has thought proper to direct.

On the organization of this tribunal, under the constitution, the act establishing the practice to be pursued in it, provided that there should be no reversal for any error in fact, unless on a special verdict rendered in the district court, or on a statement of the facts agreed upon by the parties or their counsel, &c.

It was, I believe, the general understanding of the profession throughout the state, as soon as this law was known, that the facts of a cause could not be presented to this court in any other mode, but that which the act pointed out.

Judicial interpretation of the statute soon confirmed this idea.

In the case of syndics of Hellis vs. Asselvo, 3 Martin, 201, the appeal was dismissed because the statement of facts was signed after, and not before judgment; it was not pretended there that the statement was incorrect; but it was rejected because the law had declared it should come up in an other manner.

In the case of Longer & al. vs. Pigneau, ibid. 221, the court decided that it could not act on the information derived from facts stated in the opinion of the judge.

In Beard vs. Poydras, ibid. 505, one of the parties offered to introduce new testimony. It was refused, and the court observed that the legislature had determined the mode in which causes should be sent up; that this was not the manner pointed out by the act, and that evidence coming in any other way was inadmissible. The same principle was recognized and enforced in Dubreuil vs. Dubreuil, 5 Martin, 81.

The power of the court, in regard to new trials, I understand to be exercised under the same limitation. Whenever we gather from the record, brought up according to law, that the merits of the case require us to remand a cause, it is our duty to do so. But we cannot arrive at a knowledge of the facts which require us to do this, in any other mode but that which the law points out.

The legislature has thought proper to afford to the citizen the benefit of a new trial from this court in many cases; as when improper evidence is received; when proper evidence is rejected; when new testimony is discovered after trial, which by due diligence could not be had before; when there is error in the opinion of the court on matters of law: in these and similar cases the remedy exists, because the mode of bringing the error before the appellate tribunal is pointed out. But if that legislature has not provided the means by which the court can get the facts before it, so that it may be enabled to judge of the propriety of granting a new trial, where the verdict is contrary to evidence; does it follow, as a consequence, that this court can supply the defect, and direct a mode in which the facts shall come before us? I am clear in the opinion that it cannot; and that we are not permitted to take notice of facts, either for the purpose of granting a new trial,or in giving final judgment, in any other manner but that which the law has pointed out, and that where the legislature has chosen to be silent as to the means-it is an admonition to this court, that the end did not require they should be extended.

The reasoning is strengthened by the circumstance that when the act was passed, making the verdict of the jury conclusive on parties submitting a cause in the manner it has been done here; provision was made for taking down the evidence in every other case, except where a cause was presented on special facts. Acts of 1817, page 34, sec. 12.

It is true that in some of the courts in this state, since the passage of the act just alluded to, parties have been in the habit of taking down the evidence. But in those courts where that practice has been pursued, resort was had to it (as far as my experience extended) by consent; for as the verdict was uncertain, each party wished to guard against the consequences. This was the case in the suit of Porter vs. Dugat, decided at the last term of this court for the western district, and as the objection was not made there, no inference can drawn from the court, remanding it for a new trial.

III. The fourth and fifth bills of exception were taken to the introduction of private deeds, the execution of which by the parties, was however admitted. I have been at a loss to discover on what this objection rests; an argument might perhaps be raised as to the time when they operated as notice to third parties, but that could not prevent them being evidence to go to the jury.

IV. A plan of the plantation of Bertrand Gravier, made by F. Trudeau in the year 1788, was offered in evidence, to the introduction of which the defendant objected upon the ground that Jean Vessier, under whom he claimed, did not purchase in pursuance thereof. The judge in permitting the paper to go to the jury, stated that they were not to consider the plan evidence in itself; but that it might be evidence if connected with the purchase, by extraneous proof. To this opinion the defendant excepted.

Immediately after the bill of exceptions was signed, the plaintiff asked permission to withdraw the plan which the jury had before them. The defendant resisted this, stating that he did not wish to use the plan as evidence. But objected that the plaintiff had not a right to withdraw it. The court however, allowed him to do so, stating to the jury that they were not to consider it as evidence in the cause. To this opinion the defendant also excepted.

The most regular course, perhaps would have been, to have called on the party to shew the relevancy of the plan to the purchase made, before it was submitted to the jury. This is the ordinary practice, though it is difficult, when the evidence in a cause is made up of a variety of facts, to prescribe a certain order in which they must be presented. But the question now is, whether the admission of the document before its connexion with the defendant’s title was shewn; under the declaration of the judge, that it was not evidence in itself, but might hereafter be made so by other testimony, has worked such an injury to the party that the cause must be sent back. I think it has not; because the judge told the jury that it was not evidence against the defendant until other proof was brought connecting it with the title; because it was withdrawn under a direction from the court, that the 1821. jury were not to consider it; and because it appears that they did not so consider it; for in their finding on the third fact submitted on the part of the plaintiff, they declare that the plan was not in proof before them.

On the right of the defendant to have this paper retained after the plaintiff offered it, altho’received under his exception, I should have no doubt, were it not for his own declaration annexed to, and making part of the bill of exceptions, “ that he did not want or intend to make use of the plan in evidence.” If he did not want it, then he could not be injured by its being withdrawn.

It is this circumstance which distinguishes this case from that of Posten vs. Adams; there the party wished to use the paper he first objected to.

V. The eighth bill of exceptions was taken to the refusal of the judge to charge the jury on different points of law, and directing them erroneously on others ; as nothing but facts could lawfully be submitted to the jury, and as any law which they might mix up with their verdict, must be disregarded here; I do not see how the defendant could be benefited by the charge he required, or injured by that which the judge delivered; it is unnecessary therefore to remand the cause for that reason.

VI. There is another bill of exceptions in which the defendant objects to the opinion of the judge, on the pertinency of the facts submitted to the jury.

The first law on this subject, contained in 2 Martin's Digest, 156, ordains that the court shall examine whether the facts are within the pleadings, and strike out such as do not fairly arise out of the petition and answer.

The next statute on the same point: Act of the legislature, 1817, page 32, sec. 10, directs that the pertinency of the statement of facts shall be judged of by the court.

If the legislature intended these statutes to have the construction contended for by the defendant in this cause; that the facts as stated in the petition and answer, should be submitted and nothing else; there would not have been any necessity to provide that the parties should draw up a statement of the facts, and that the pertinency should be judged of by the court.

This law has received a different construction, and the practice under it has been, that the plaintiff may present to the jury facts which go to establish the claim set up, although they should not have been set forth in the petition. It is true, that these facts must not be at variance with the allegations contained in the petition and answer. But it never has been understood that all the different circumstances which give a right, or furnish a defence of a particular kind, should be put in the pleadings. The facts submitted are always pertinent when they tend to support the title set up; and as no replication is filed, the plaintiff must often require that matter, not alleged in his petition, should be put in the statement, to rebut that growing out of his adversary’s answer. If, by our loose mode of pleading, either party should be surprised, the law has vested ample power in the judge to correct the injury. Nothing of that kind however, appears here, no case ever heard in this court shewed parties better prepared, more perfectly acquainted with the strong and the weak part of their adversary’s claim, and the care with which every fact that could bear on the cause was drawn out, and submitted, proves that both came fully acquainted with what they had to resist, and what they must establish.

These objections over-ruled,—the next enquiry is, what facts have been ascertained by the verdict? The jury have found

That Bertrand Gravier, of the city of New-Orleans, died intestate, in the year 1797; that at the time of his death he was possessed of a farm in the neighbourhood of New-Orleans, of which the premises in question formed a part; that Livingston, the plaintiff, took possession of the property now in dispute, in the year 1807, and that he is still in possession thereof.

That prior to the time of the sale of Gra-vier to Vessier, under whom the defendant claims, the said Bertrand Gravier, had laid out a part of the plantation above mentioned, into building lots bounded by streets.

That, at the time of the sale to John Ves-sier, there was a road, at least forty feet in width, lying between the levee and the said lots; and that outside of the levee, and between it and the river, opposite to the said lots, there was a parcel of land, partly original, partly formed by alluvion, which was covered with water only at the time of annual inundation—was the rest of the year uncovered, and was of such height and extent, that a part of it might have been reclaimed, occupied, and converted to the use of the proprietor; which land being increased by alluvion, is the premises in question.

That the plaintiff has been in possession for more than ten years, with the exception of the time he was dispossessed, in the years 1810 or 1811, by the marshal, and a trespass committed in 1808, by the same officer.

In opposition to these facts, the defendant has presented his title, under the following finding:—

That John Vessier purchased from Bertrand Gravier and his wife, in the year 1789, a certain lot or parcel of ground, in the now suburb of St. Mary, in front of which is the soil called batture, being the premises in dispute, and that part of said lot has been purchased by the defendant, from those who held under said Vessier, by several mesne conveyances, which conveyances are annexed to the facts found by the jury, and make a part thereof. That the plaintiff was dispossessed in 1808 and 1810, by the marshal, and put in possession in the year 1813.

A variety of other facts have been submit-ed and found, as to the sum of money expended by petitioner; the period when each set up their respective claims, &c. all of which, from the view I have taken of this question, are quite immaterial in the decision of this cause. The law, which the jury has blended with their finding of the facts, must be entirely disregarded. 6 Martin, 209.

But before we can reach the merits, another question, which has been raised, must be disposed of.

It is contended, that by the law, in virtue of which this action is commenced, the only judgment, which the court can pronounce, is to decree, that Heerman shall bring suit.

Little can be gathered from the books, as to the particular practice adopted in Spain, in cases of this kind.

The law, par. 3, tit. 2, l. 46, declares, that no person can be compelled to bring suit, except in particular cases, wherein the judge may, by law, oblige him to do it; as when a man publicly says, that another is his slave,

&c. in these and like cases, the person injured may petition the judge to oblige the defamer to bring suit, and prove what he has said, or to retract,or to make such reparation as the judge shall deemjust; if he refuses to bring the suit, the party agrieved shall be for ever absolved from the charge made against him.

This law applies, according to the Spanish authority, to defamation respecting property, as well as person, and that whether itbe moveable or immoveable, Gregorio Lopez, on the above-cited law, n. 2. Elizondo Practico Universal, vol. 2, p. 136.

Now, when a suit is commenced like the present, the defendant should do one of two things, either deny that he has said so, which would amount to a waiver of title, or admit the accusation, and aver his readiness to bring suit.

In the first alternative, this court would proceed to try the fact, whether he had defamed the title or not, and give damages accordingly.

In the second, they would order suit to be commenced. This, it appears to me, is the regular course. The object of this law was intended to protect possession; to give it the same advantages when disturbed by slander, as by actual intrusion. To force the defamer to bring suit, and throw the burthen on him of proving what he asserted.

If this course had been pursued here, the defendant Heerman would have been directed to bring suit (in the language of the law) to prove what he had said; and the plaintiff, relying on possession, would have been maintained in it, until a better right was shewn. Instead of doing this, he has chosen to maintain the truth of what he has advanced, by setting forth his title in his answer, and avering it to be a better one than the plaintiff’s. Having done so, I think the court can examine it, as well in that answer, as if set forth in a petition; it is only, in fact, anticipating the order which the court must have given, and coming forward, at once, with that title which the court would have directed him to produce in another suit. His adopting this course, at his own choice, cannot change the mode in which the proof must be adduced ; he must make out his title as alleged; and cannot take from the plaintiff the advantage which he derives from his possession, by varying the form in which he has thought proper to make good his claim to the premises.

If it should appear, that he has a title for the premises, I have no doubt, that we can decree, that he has not slandered The plaintiff's title; that he has a better one; and that such decision would form the res judicata as to their titles, in virtue of which the defendant can, at any time, obtain possession by an action to that effect; for it is not necessary to enable the court to pronounce on title, that there must be a prayer to be put in possession. If the plaintiff succeeds, we can declare, that the defendant has failed to produce a title; that the plaintiff be preserved in the quiet enjoyment of his property, and the defendant be enjoined from reasserting this title to it.

This case differs little from the case of Gravier vs. the Corporation of New-Orleans, except. that trespass, as well as slander, was alleged there.

But if this point was doubtful, I should have great reluctance to send the parties back on a mere matter of form, to travel over the same ground again. Interest republicœ ut sit finis litium. And never did the maxim have a more proper application than in the cases which have grown out of this subject.

Having arrived, at last, at the merits, I shall state, as concisely as the nature of the subject will permit, what I understand to be the law in cases circumstanced like this. After sixteen years, that the question has been in one shape or other before our courts, and the best talents of the bar and the bench employed in its discussion, the materials for forming an opinion, are in the hands of every one; and to cite authorities in support of the plain elementary principles, by which I consider the case to be governed, is only to quote what has already been cited twenty times before.

By alluvion, I understand, that which is added to land, little by little, so that we cannot know how much is added at each moment of time.

And, that all a river thus adds, by alluvion, to our field, becomes ours by the law of nations, or public law, common to all countries.

He, therefore, who owns land, bounded by the river, acquires whatever is added to it, as he suffers the loss of that which is taken from it.

When, therefore, a dispute arises between different purchasers, claiming under a person who once owned the riparious estate, their rights must be determined and governed by the fact—to which did he give a boundary on the river?

The defendant, Heerman, to establish his right to the property, produces a bill of sale from Bertrand Gravier and wife, to John Vessier, dated the 19th of January, 1789, by which they sell un terreno de mi, la dha Dna. Maria Josefa Deslonde, compuesto de dos cientos y quarenta pies de frente y ciento y sesenta de fondo, situada fuera de esta ciudad y haciendo frente à la leevé de este rio. A lot belonging to the said Maria Josefa Deslondes, having 240 feet in front, and 170 in depth, situated outside of the city, fronting, or having a front to the levee of the river.

The defendant owns a portion of this, containing 73 feet 8 inches in front, regularly conveyed from John Vessier; and in virtue of the title, asserts his right to all the alluvion formed between the levee and the river.

The force and effect of the words face au fleuve, face, frente, frente al rio, in a deed, or other act of conveyance, was most elaborately discussed in the case of Morgan vs. Livingston. Under the circumstances of that case, and the facts proved in it, the court held, that these expressions give the first proprietor a boundary to the river.

In that case it was proved, that the words mentioned were used and universally understood, to designate an estate bounded by the river.

And it was established, that at the time of the sale from Gravier to Poeyfarré, there did not exist any private property susceptible of ownership between the trapezium and the river.

But in this case, the facts are wholly different. First, it is found by the jury, that the words used in the deed from Gravier, and wife to Vessier, frente a la leveé, front to the levee, do not signify a boundary on the river.

And that, at the time Gravier sold to Vessier, there existed outside of the levee, and between it and the river, land susceptible of ownership.

If this last circumstance stood alone, without the finding of the jury, on the expressions used in the deed, I should think, that it would controul the effect of those words, which have been held to carry the vendee to the river. For, if it had been the intention of one of the parties to sell, and the other to acquire the private property that intervened, it would have been so expressed; and the omission to insert it in the act of sale, is clear evidence to me, that did not enter into the consideration of the contract.

But we are free’d from all difficulty in this case, by the finding of the jury.

It has been held in the case of Morgan vs. Livingston, 6 Mart. 220, and that of Gravier vs. mayor, aldermen and inhabitants of New-Orleans, Report of case, 17, that the meaning of certain expressions in deeds, giving boundaries was properly ascertained by parol evidence, proving the sense in which they were used, and generally understood.

The meaning of the expression in defendant’s deed, frente á la leveé, has been submitted to the jury, and found by them not to give a boundary on the river.

A great deal of discussion took place at the bar, whether the lot purchased by Vessier was what is called a limited field, or whether the law in agris was in force in this country. But these points it is unnecessary to decide on.

I have, in the opinion just delivered, noticed every thing which I consider material, to answer, and comment on, all that was said, would be to write a treatise instead of delivering an opinion.

I have examined the case with the utmost attention, and with an anxiety that has more than once been felt as painful, to do that which is right between the parties and satisfy the law. And on the whole, I am of opinion, that, as at the time of the sale from Gravier and wife, to Vessier, there existed a portion of soil susceptible of private ownership, between the levee and the river; that this soil was retained by the vendor, and that the expressions in the deed, frente à la leveé, did not carry the purchaser beyond it.

That as the front boundary of said lot is given, in the act of sale, by particular expressions, which expressions the jury have found were not used under the former government, to signify a boundary on the river; that the purchaser did not acquire a riparious estate, and consequently, that he has no right to the alluvion formed in front of it.

I am, therefore of opinion, that the judgment of the district court be affirmed with costs.

Mathews, J.

The principal difficulty I find in the decision of this cause, as it is presented to the court, arises from the situation of the appellant. He is a defendant in an action for having slandered the title of the plaintiff to certain property, claimed by the latter, as set forth in his petition, and of which he has had uninterrupted possession during a long period of time.

The law, on which this action is founded, authorises a judgment, requiring and compelling a person who speaks against the title of a bonafide possessor, by asserting a right in himself, either to desist from such assertions, or to bring suit in support of his alleged claim; for the purpose of opposing his title to that of the possessor, in order that the respective claims, rights and titles of the parties may be finally settled according to law and justice.

If the pleadings in the present suit, do place the defendant in a situation similar to that which he would hold as a plaintiff, in an action which he might be compelled to institute; I can see no good reason for delaying a final judgment in the case, and that such is his situation, I agree in opinion with judge Porter.

The numerous exceptions taken to the propriety of the proceedings in the court below, have been so fully examined and correctly determined, that I consider it useless farther to notice them.

As to the merits of the case, I have entertained but one opinion, in relation to the property of which the premises in dispute make a part, since the judgment in the suit of J. Gravier vs. the city, to the present time. I have always believed, that the alluvion or batture, as it is called, so far as it was sufficiently formed, to be a subject of private or individual ownership, at the time when B Gravier sold the lots of land on the front of his plantation, made a part of said plantation, that the right to it was vested in him, and that he had acquired a complete title according to our laws, on the subject of alluvion.

The verdict of the jury in this case, shews that the lot or parcel of land in dispute, being a part of said batture or alluvion, was thus formed, and did exist at the time when Bertrand Gravier, sold the lot of land, situated immediately in the rear of the disputed premises, to the person under whom the defendant claims. And I am opinion that the expressions in the deeds of conveyance offered by him, are not sufficient to support his claim, against that of the plaintiff who claims under the same original title, viz, that of B. Gravier.

I doubted much on the propriety of the decision, in the case of Morgan vs. Livingston, and finally assented, under a conviction that full proof had been adduced shewing that no alluvion existed in front of the trapezium, at the time of its sale to Poeyfarré, the vendee of B. Gravier.

Upon the whole, I am of opinion, that the judgment of the district court ought to be affirmed.  