dissenting. A very thorough consideration of this case has not enabled me to concur with my brethren in the disposition they have made of it. Our difference of opinion relates, I believe, only to matters of fact. I am not aware of any naked question of law, which is presented for our determination, concerning which we do not concur. The case turns exclusively on the facts, according to my view of it. Were there any such questions of law, which the court could examine, independent and separate from the facts, and it should be in favor of the plaintiffs, they certainly should have the benefit of it, for I never could consent to surrender the decision of questions of law to a juiy-
The point which, it appears, presents the principle obstacle to the affirmance of the judgment, is the want of consent of the Beaulieus to the contract of sale, which is sought to be enforced by Furst; and this defect of consent seems to rest on the want of credibility of a witness, and on their gross ignorance and want of intelligence.
On this subject, I consider that the defendant, Fur-sl, has the verdict of two juries, under evidence which was contradictory, and which it was peculiarly their province to weigh and determine.
In a case of this kind, involving the reputation of a party, the credibility of a witness, and questions of fact resting on contradictory evidence, I do not feel myself at liberty, in the exorcise of a sound legal discretion, to set aside this second verdict, which the defendant has had in. his favor. A much, stronger case than this ought to be made out, before the court would be authorized, in my judgment, to set aside the verdict. I, therefore, dissent from the opinion of the court.
Cr. B. Duncan, Benjamin and Micou, argued that the judgment of the court 'below must be affirmed, Soulé, contri!. The rule taken by the appellee, and the argument at the bar-, imply: 1st. That under the present organization of the court, unless three judges should assent to a decree of reversal, the judgment appealed from is to be affirmed. 2nd. That it is not lawful for any judge to recuse himself after hearing a case, and that his abstaining from all participation in the judgment .rendered, amounts to an agreement-with the minority of the court, and is to bo construed accordingly: 3rd. That the parties litigant have a right to inquire into the motives which may have induced the judge to recuse himself. From such premises only can be inferred the broad principle assumed by the appellee in the rule, that, as the four judges were present at the hearing of the case, they must be considered as having participated in the decree rendered ; and that, therefore, as but two j udges were for the reversal of the j udgment appealed from, the same ought to be affirmed. The appellee has quoted, in support of his pretensions, article 68 of title 4 of the constitution, and articles 338 and 340 of the Louisiana Code of Practice. The appellants submit, in answer, the following brief remarks: I. By the article quoted from the.constitution, no decree of an inferior court ■can be affirmed on the appeal, unless it actually meets with the assenting •opinion of at least two judges. Two, when they are equally divided; two, when there is but a quorum of the court. A majority of the four judges constitute a quorum (title 4, art. 64, Const.), and when they are a quorum, they possess the full constitutional authority vested in the court; and this must bo based on the presumption that the judge absent or recused would, if present or not recused, have joined .the majority; otherwise, the recognition of sufficient power in three of them to act for the whole court would constitute a glaring inconsistency, and defeat the very principle which provides that an equal division of the judges shall enuro to the benefit of the party having the judgment of the court of original jurisdiction. il. That judges may reeuse themselves, is not denied, and, indeed, one of the articles quoted from the Code of Practice provides, “that the judge may recuse himself in such cases, where the parties themselves would have the right of recusing him.”' But it seems to be the opinion of the counsel for the appellee, that this recusation cannot take effect after the hearing of the case, nor without the parties having the opportunity of testing the correctness of the ground upon which it may be founded. Judges, in England, have considered not only that they were at liberty to abstain from giving an opinion after hearing the case, but that they might even participate in the form of the judgment, without at all joining in the opinion of the other judges. In the case of Tatham ■v. Wright, which had been heard before the Lord Chancellor, assisted by the Lord Chief Justice and the Lord Chief Baron, the Lord Chancellor said: “That he had given no opinion, and should give none; that the judgment was in form his, in substance that of the other leai-ned judges; his former position as counsel in the case, precluded him from giving any opinion as to its merits.” Legal Observer, London, vol. 2, pages 317, 318. But the rule of law which prevails here, being derived from the French Code of Practice, it may not bo improper to test its bearing with the French authorities, and to ascertain how in the French tribunals it was formerly understood, and is still now applied. The royal ordinance of 1667, after stating the cases in which judges may bo recused by the parties, has this provision: “The judge who is aware of the existence in himself of sufficient cause of recusation, shall recuse himself, without awaiting that he be recused by others.” Art. 17. And the article 380 of the French Code of Practice also pr-ovides, “ that any judgo who may be awaro of the existence in himself of some causo of recusation, is bound to declaro it. in order that it may be decided whether or not he shall abstain.” Under the rule laid down in 1667, it had been contended by some that the recusation, when coming from the judge himself, was to be acted upon by decree and confirmed. Indeed there was an express provision to that effect in article 24 of the ordinance; but, says Favart de Langlade, vol. 4, page 765: “L’ordonnance ne s’observait pas it la rigeur dans le ressort de plusieurs parlements, et nombre de juges se déportent aujourd’hui sans qu’une décision de la Chambre ordonne qu’ils s’abstiendront.” As to the time when the judge was to abstain, or to recuse himself, the same author adds: “La loi ne fixe pas le temps dans lequel le juge qui reconnait cause de recusation en sa personue est tenu d’en faire la declaration.” Ibid. Nor is any time fixed by the article quoted from our own Code of Practice.*51The day after these opinions were read, the counsel for the dofandant, on motion, obtained an order of court for the appellants to show cause why the decree reversing the judgment of the lower court should not be set aside, and one affirming the judgment be rendered in its place, on the ground that the constitution of the State orders the judgment of the court below to be affirmed in all cases tried before the four judges of the Supremo Court, unless three of the judges unite in reversing.it.
The very point in controversy was brought, in 1832, before the Court of Cassation, under the authority of article 380 of the French Code de Procedure, which is so much more restrictive than our own, and the court held: “that in the case of a judge recusing himself, the question was one of discipline, cognizable only by his colleagues, involving no contradictory proceedings, no debate, arising from the spontaneous declaration of the judge that there exist legitimate «reasons why he should abstain, and requiring neither decree nor procés-verbal, but a mere mention of the motives that induce him to abstain.” See the opinion at length in the Journal du Palais of Ledru Rollin, vol. 24, years 1831, 1832, page 1126. The appellants maintain: 1st. That a judge may abstain in all cases for reasons which might justify parties in recusing him, and this at all times before judgment. 2nd. That such a recusation is only cognzable by the court in chambers, and need not be preceded by decree, debate, nor procés-verbal. 3rd. That the exercise of judicial authority manifests itself only in the opinions and decrees delivered by the judges, and not in the part which they may have taken in the hearing of the case. 4th. That there is nothing so sacramental in the hearing of a case as should preclude a judge who has participated in it from recusing himself afterwards, if he should discover that there is sufficient reason for doing so. 5th. That the constitution, when determining the number of judges necessary to form a decree, does not compute the judges present at the hearing of a case, but those giving an opinion in the case. Art. 68, tit. 4. 6th. That in the present case but three judges participated in the decision. They formed a quorum. They .could not force the fourth to join them in their deliberations. They were bound to dispose of the case. They did dispose of the case. Their decree ought to be maintained, and the rule dismissed. 1. W. Smith, on the same side. An application for a re-hearing was .also presented in this case by the counsel for the defendant.