COON then by the day, as appears by a memorandum of account WESTERN Dist. handed by him to the defendants, which he stated to be his September, 1834. whole account, up to the time when he left their employment. They annex an account for moneys and merchandise advanced, drafts and physicians' bills, paid at various times, when he was sick and unable to work, and for boarding and lodging while sick, amounting to one thousand and seventy dollars and sixty one cents, which they plead in compensation. At the commencement of the trial, the defendants pleaded the want of an amicable demand. After the trial had progressed, the defendants withdrew their plea of prescription, which had been previously filed, and the plaintiff withdrew his objections to the signature to a certain paper, purporting to have been signed by him. On the trial the plaintiff offered several witnesses to prove the time he worked for the defendants, and his agreement with them. The defendants offered in evidence, several account books, receipts and accounts of plaintiff, and orders which had been paid by them; and the testimony of several witnesses to prove, that the plaintiff was frequently sick, from imprudence and other causes, and lost much time. The counsel for defendants, moved the judge to charge the jury, "that they were not the judges of what was the value of the services of the plaintiff, as a brick-layer, per day, but that the plaintiff was bound to prove to them, by evidence offered before them," which the judge declined, but told the jury, "they were the judges of the value of the work on the evidence before them;" to which refusal and charge, the defendants took a bill of exceptions. The jury on examining and hearing the whole case, returned a verdict for a balance due the plaintiff of three hundred and sixty seven dollars. Judgment was rendered in conformity therewith, except as to costs, which decreed that the plaintiff pay costs up to the time of filing the defendants' answer, and that the latter, pay all subsequent costs. The defendants appealed. In answer to the appeal the plaintiff and appellee prayed, that the judgment be corrected, so far as to condemn the defendant to pay all the costs. vs. BRASHEAR ET ALS. WESTERN DIST. COON 78. BRASHEAR ET ALS. Lewis and Brownson, for the plaintiff and appellee. 1. The want of an amicable demand, is an exception, that must be pleaded in limine litis, and in this case came too late. 4 La. Reports, 105. 2. Defendants' plea of prescription, in the Supreme Court, cannot be received, because the same plea was put in below, and afterwards specially waived. Wharton, contra. Bullard, J., delivered the opinion of the court. The plaintiff sues to recover his wages as a mechanic, in the employment of the defendants, for a period of several years, a part of the time at the rate of forty dollars per month, and a part at forty-five. The answer admits, that the plaintiff had been in the habit of working for the defendants, but not at the rates of wages stated by him; compensation, as to a part of the demand, was also pleaded, and prescription. After this answer to the merits, the defendants further pleaded, the want of an amicable demand. During the trial, the plea of prescription was voluntarily withdrawn, by the defendants, simultaneously with certain concessions made by the other party, as to a disputed point of evidence in the cause. In this court, the appellants have renewed that plea. This is opposed by the appellee who urges that the waiver of the plea in the District Court, is tantamount to a renunciation of prescription, which can quired, may be validly be done after it is acquired, and that the renunciation either tacitly or expressly re- cannot be retracted. nounced. Prescription, when once ac When a party renounces pre course of the trial The Code has established the principle, that prescription once voluntarily when once acquired, may be validly renounced. The renunscription in his ciation is either express or tacit: "a tacit renunciation results favor, in the from a fact, which gives a prescription of the relinquishment in the inferior of the right acquired by prescription." Article 3424. As it renew it, or a- is only by way of exception or plea, that a party can avail it, in the Su- himself of prescription, it seems to us that the voluntary waiver of such exception in the course of a judicial pro court, he cannot vail himself of preme Court. COON vs. BRASHEAR ET ALS. ceeding, more especially, when accompanied by a concession WESTERN DIST. on the part of the adversary, is such a fact, as furnishes the September, 1834. strongest presumption of an intention to renounce the right itself. Indeed it is difficult to distinguish between, in this case, a waiver of the exception, and a renunciation of the The voluntary right, or to understand how the end is to be attained, after a waiver of the voluntary abandonment of the means. We are therefore of plea of prescripopinion, that the plea cannot be renewed, in this court, so as to avail the defendants. tion by a party in a judicial proceeding, especially when accompanied by a versary made in thereof, is the renunciation of Where a workman sues to recover his wages at a stipulated A bill of exceptions was taken to the charge of the judge concession on the to the jury, which is relied on by the appellant. His counsel part of his admoved the court to instruct the jury, that they were not the consequence judges of what was the value of the plaintiff's services, as strongest prebrick-layer, per day, but that the plaintiff was bound to prove sumption of the it to them, by evidence offered before them; but the judge the right itself. instructed the jury that they were the judges of the value of the work, on the evidence before them. It is true, the plaintiff sued for wages, at a stipulated hire, and the question was, hire per month, as a bricklayer, not what his services were really worth, but evidence had and evidence is gone to the jury without exception, to prove the usual wages out objection to of that class of mechanics, and we think the judge did not prove the usual wages of that err, in giving such a charge to the jury. He was clearly class of mechacorrect in refusing to give the charge asked by the defendants' nics, the jury are the judges counsel, to wit: that the plaintiff was bound to prove, the of the value of the work charged value of his services. It was enough for him to prove his as having been contract, and the length of time he was in the defendants' done, on the eviemployment. introduced with dence then before them. In a suit to re sufficient for him tract and the On the merits, it has been urged, that the verdict of the cover wages at a jury was contrary to, and without legal evidence. It has stipulated hire per month by a been particularly insisted, that the jury was bound to disre- mechanic, it is gard the testimony of one of the principal witnesses, on the to prove his conground, that he had stated what was clearly proved to be length of time false, and the counsel relies on the rule of evidence, as stated he was in the deby Starkie and other writers on that branch of the law, ployment. "falsum in uno, falsum in omnibus.” 1 Starkie, 524. It is true, that when a witness has wilfully perjured himself, ly on a material point in a cause, on a point material to the cause, the jury is authorised to the jury is authodisregard his testimony altogether. But the jury is to judge gard his testimony altogether. fendant's em Where a witness swears false rised to disre WESTERN DIST. Whether the misstatement was wilful or material, and what September, 1834. degree of credit ought to be given to the witness. COON vs. BRASHEAR ET ALS. ther a misstate or material, and It is difficult to establish any technical rule on this subject. In the case now under consideration, it may have appeared to the jury, as it does to us, quite immaterial, whether the plainThe jury are the judges whe- tiff put up two buildings or one, inasmuch as his demand ment by a wit- Was for services by the month, and not for the price of a ness was wilful particular job. It could not be supposed that the witness what degree of would wilfully perjure himself on a point of fact, which was credit ought to be given to his wholly irrelevant to the issue, and could not avail the plaintiff. This court cannot control juries, as to the credit due to the The Supreme Court can judge statements of particular witnesses; we can judge only, of the only of the effect of the whole evi- effect of the whole evidence taken together, and whether dence of the case verdicts rendered by them, are manifestly against, or without and whether the legal evidence. This is the principle to which we uniformly jury is manifest- adhere, and which, in this case, does not authorise us to ly against or disturb the verdict of the jury. testimony. taken together, verdict of the without legal evidence. This is the principle ed to, and when The appellee in his answer, alleges that there is error in uniformly adher- the judgment to his prejudice, which he prays may be corthe verdict is not rected. It appears that after the answer to the merits, and of this character, on the eve of the trial, the defendants pleaded the want of amicable demand, and such demand not having been proved, the plaintiff was adjudged to the payment of costs, up to the amicable de- time the answer was filed. We think the court erred in this mand was made, it will not be disturbed. The exception or plea that no must be specially particular. This court has already decided, that such exceppleaded and in limine litis. It is tion should be specially pleaded, and in limine litis. It was too late to put in too late to put in the exception after the contestatio litis. 1 La. the exception after contestatio Reports, 105. litis. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the plaintiff and appellee recover of the defendants, the sum of three hundred and sixty-seven dollars, with costs in both courts. M'INTIRE US. WHITING. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE judge The ceding debtor, after surrender and appointment of syndics, has no longer any capacity to appear in court, in relation to the property surrendered. But where a ceding debtor has a qualified property in goods, acquired after the surrender as bailec or carrier, which are seized by a judgment creditor, he has a right to move the court and have the writ and seizure annulled and set aside. Property belonging to the ceding debtor at the time of the surrender, cannot be seized in execution by a judgment creditor, who was a party to the concurso. The District Court on motion, by an insolvent debtor, has the right to quash an execution, which improvidently issued, contrary to the order staying proceedings; the debtor, although incapable of appearing in `court, in relation to the mass of the property surrendered, was a party to the original suit, and might well make such a motion. This action commenced by a written motion of the defendant, to annul and set aside a levy and seizure made under a writ of fieri facias, which issued on a judgment of the plaintiff against the defendant, after the latter had made a cession of his goods. The judgment upon which the fieri facias issued, was recorded in October, 1832, in the parish of St. Mary. The defendant is a resident of Texas, but was, at the time of recording the judgment against him, a partner in the commercial firm of George Whiting & Co., in a store, which had been carried on several years in the town of Franklin, in said Parish. On the 22d October, 1833, the firm of George Whiting & Co., filed their bilan, upon which the plaintiff's judgment was placed, as one of the debts owing by the firm. The surrender was accepted by the judge, and a meeting of the creditors ordered. The attorney of the plaintiff appeared before the notary, and swore that the amount of the said judgment was due to the plaintiff by the firm. . |