author: Manning, C. J.

text:
    No. 4389.
    Sara Stirling et al. vs. Sara P. Lawrason.
    When it appears that an executrix who had exercised the functions of her office under the exceptional circumstances, and at the actual theatre of a civil war, performed her duties with discretion and honesty, she can not be held responsible in law for losses that were inevitable as a result of war.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Fclward Phillips and Merrick, Race & Foster for plaintiffs and appellants.

      John H. New and Percy Roberts for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

James L. Stirling died in April 1860 in the parish of West Feliciana, leaving a wife, and mother and brothers and sisters surviving, but no children. By his will, which was duly probated, he gave all of his personal! property to his wife, except three notes of David Barrow for $7,500 each, and the money in the hands of his commission merchant, which he directed should be disposed of as the law directs. His widow was testamentary executrix, who qualified, administered the estate, and in February 1862 filed her final account, which was homologated. That account shews the sum of $12,625.31 for distribution among the heirs, who are the present plaintiffs, and for its re-' covery this suit is brought.

In that account enter the three Barrow notes, not then collected, but charged as of the sum which the principal and interest then aggregated, and they were the largest asset of the estate — amounting to nearly twenty-five thousand dollars. In June 1863 Barrow offered to pay — rather demanded to pay them. There was but one currency in use then, i. e. the Treasury notes of the Confederate States. Mrs. Stirling objected to receiving payment in those notes. In her testimony she says she was prevailed on to receive it, and that the money or Treasury notes thus received were handed to Mr. Winter, who promised to invest them in foreign exchange, and if he could not succeed in. doing that, he would invest them to the best of his ability. She thought he had invested them in cotton. What Winter did with them no cne knows. The money was utterly lost to the estate. The question now .is, shall the executrix be heid responsible for the sum reoeived, or acknowledged in her account to have been received by her ?

War prevailed then. The parish where Mrs. Stirling lived was open' to the incursion of the military forces then invading the country, and was in their actual possession. “ After the federal forces had taken possession of the country, says Mrs. Stirling, I had great trouble in hiding this Confederate money.” She kept it until her apprehensions for its safety became so great, that she determined to keep it no longer, and disposed of it as already narrated. “ Every day and every night, says the witness Lewis, squads of Federal soldiers were about, carrying off every thing they could lay their hands on.” Not a human being was on the place except three ladies. The slaves were gone. If she had not received the Confederate money when Barrow offered to pay his notes with it, she would have subjected herself to suspicion of disaffection or charge of treason, and might have got into serious trouble. If the Confederate money, or any other sort of money, had been found in her house by the soldiers, she would quickly have been relieved of all anx-, iety about its safety. There was no bank in the parish in which to deposit it. What could she do but give it to some friend to do with it as best he could ?

The legal question is, must an executrix be held to an absolute and unqualified responsibility for doing .what she could not avoid doing, under circumstances when she could not exercise any discretion, and when she was doing what appeared to be the best thing to be done at that moment with her surroundings. We think not.

The paper that is called an account and which was filed and homologated in 1862 must have been a provisional tableau, for it was not until 1869 that the executrix, having shewn that she had paid all the-debts, was finally discharged. This suit was instituted in 1872, more than ten years after the tableau was filed, from which time the plaintiffs claim interest, and the plea of prescription is filed, but we do not think it necessary to pass on it.

We prefer to rest our decision upon the broad ground, that under the exceptional circumstances in which fiduciaries were placed by the existence of war, when localities were possessed and ravaged in turn by contending armies, and when under these difficult circumstances they acted with discretion, and honesty, they cannot be held responsible in law for losses which were inevitable as a result of the war.

The judgment of the lower court was rendered upon the verdict of a jury, and was for the defendant. It is correct and is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7325.
    H. B. Claflin & Co. vs. Lisso & Scheen.
    The filing of an answer in this court by the appellee, in which he does not reservohis right to dismiss the appeal, amounts to an abandonment of his previous motion to dismiss.
    A judge has no authority to release an attachment of property claimed to be exempt from seizure on the ex parte application of the defendant. The plaintiff must be duly notified of the application, and given an opportunity to be heard.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Broughton, J.

      T. T. & A. B. Land and Kennard, Howe & Prentiss for plaintiffs and appellants.

      J. F. Pierson, W. M. Levy, L. B. Watkins, and Egan & Ogden for defendants and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Defendants and appellees filed motion to dismiss appeal, and on same day filed their answer, praying that the judgments be affirmed. In this answer there is no reservation of their right of dismissal. The motion to dismiss must be considered as abandoned and waived by the answer. 27 A. 284; 8 R. 168; 3 R. 169; 6 N. S. 531.

On the Merits.

Claflia & Co. sued out an attachment against defendants for a sum of nearly $10,000 on allegations that defendants were fraudulently disposing of their effects.

The order of attachment was, on proper affldavitof the absence of the district judge, granted by the parish judge. There being no sheriff or coroner in the parish, a special officer was appointed and sworn to execute the writ. Under this writ, the officers attached certain lands, also the remains of a stock of goods, and two safes and the contents therein” in defendants’ store. This seizure was made December 6,1878.

On same day, December 6, the defendants applied for and obtained an order from the parish judge, acting for the absent district judge, directing the officer to release and deliver to defendants the two safes which had been attached, on the ground that they were exempt from ■seizure, as being implements or tools necessary to their occupation, etc. This order was obtained) without any notice whatever to the plaintiffs, and was granted at chambers. Its effect was to release from attachment the “ two safes and their contents,” the safes being at the time ■of seizure locked and the keys and combination in the possession of defendants.

On the next day, December 7, plaintiffs applied to the said parish judge to rescind said order of release, and maintained the attachment •at least of the money, notes, etc., contained in said safes. This application was rejected by order, Dec. 7.

Plaintiffs on same day applied for and took a suspensive appeal from both orders, to wit: that of Dec. 6, releasing the property, and that of Dec 7, refusing to rescind the order of release.

Plaintiffs have assigned numerous errors, of which it will not be necessary to notice all.

Waiving the questions whether or not the parish judge has under art. 128 C. P. the power to grant in a cause pending in the district court an order releasing without bond property attached, and waiving the question whether such order can be rendered at chambers, we proceed to consider whether such an order can be granted by any judge, at any time, without notice to the plaintiff?

We do not hesitate to answer this question in the negative.

Such a practice is so repugnant to common sense, and so flagrantly violative of common justice, as to require no argument to condemn it. What would become of the rights of seizing creditors, if their debtor be «flowed to go to the judge in secret, and procure from him an order releasing property seized ? If he can do so upon one pretext, he can upon another. In this case, the pretext was that the safes were exempt from seizure, and under guise thereof “ the contents” were also released, though plaintiffs alleged and offered to prove on their motion to rescind that the safes contained large sums of money and securities.

The question as to whether a given thing is or is not exempt, under art. 644 0. P., is one of fact and law, and is to be determined after hearing the parties.

We are cited to arts. 652 and 653 0. P., relative to the reduction of excessive seizures under fi. fa. as analogous, and as permitting a seizure to be released without notice to the creditor. The articles cited do not sustain the position. To take the proceeding provided for in those articles without giving the creditor an opportunity to be heard, would be as arbitrary and illegal as the proceeding taken in this case. The property seized might amount in value to many times the creditor’s claim, and yet on account of previous incumbrances or seizures be wholly insufficient to pay the debt for which it is seized. Because the articles do not specially provide for notifying the creditor, is no reason for holding such notice unnecessary. Every principle of law and judicial procedure as well as every consideration of common justice requires such notice.

It is therefore ordered, adjudged, and decreed that the orders of Dec. 6 and 7, 1878, appealed from, be annulled, avoided, and reversed; and it is now ordered that the attachment sued out by plaintiffs be reinstated and maintained upon the said safes and their contents until released by due course of law; and that defendants pay the costs of _ both courts.


text:
    No. 7269.
    Succession of T. Gollain.
    It is the duty of an administrator to set forth in his final account and tableau of distribution a detailed bill of the clerk’s costs.
    The costs of holding a family meeting to appoint a tutor are not chargeable to the succession, if the minors have means of their own, but to the minors.
    The administrator is not entitled to his commissions on the proceeds of property-sold under executory process of an ordinary court, and which did not come into his hands for administration.
    An objection that the claims of the physician and nurse in the last illness were not recorded, and therefore can not be ranked as privileged debts, can not be raised for the first time in this court. It must have been pleaded in the lower court.
    The administrator is not liable for any losses to the succession caused by any illegal acts of the sheriff in the sale of succession property under the executory process of an ordinary court.
    A BPEAL from the Second District Court, parish of Orleans. J. Tissotz

      0. Drouet and A. J. Villeré for administrator and appellee.

      Henry Denis for Walter Pugh, opponent and appellant.
   The opinion of the court was delivered by

Spencer, J.

This appeal is taken from a judgment of the court of probates homologating the final account and tableau of distribution presented by the administrator of the insolvent succession of Theophile Gollain.

The grounds of opposition to said account and tableau of distribution urged by appellant are as follows, to wit:

First. — That the clerk’s costs, the notary’s fees, and the cost for ¡advertising the sale of real estate are improperly charged.

Secondly. — That the administrator’s commission is improperly ■charged on the sale of property sold by executory process dehors the succession.

Thirdly. — That the claims of the physician and the nurse for services in the last illness are improperly charged.

Fourthly. — That the administrator is responsible for the loss of the •sum of three hundred dollars, resulting from his neglect and refusal to compel a certain solvent person to comply with his bid at the sheriff’s ¡sale of some real estate of the succession.

1. We find in the account items as follows :

“ Clerk’s costs paid Pace, clerk, $50.
“ Clerk’s costs paid Herbert, clerk, $42 50.
Notary fees for family meeting, $10.”

We find no detailed bills of these clerk’s costs in the record — either by way of proof or voucher. It seems there was considerable contest for administration, several persons claiming it. Appellant contends that the costs of these contests, so far as relates to the unsuccessful applicants, are not chargeable to the estate, and in this he is clearly right. But on the record as presented we can not determine what part of these •costs are properly chargeable. It was the duty of the administrator to have filed detailed bills, and we shall remand the case, to allow the account to be revised in this regard.

The costs of holding a family meeting to appoint a tutor are not •chargeable to the succession, if the minors have means of their own. In this case they are allowed the homestead of $1000, and these costs should be deducted from that amount.

2. The administrator is not entitled to his commissions on the proceeds of the sale of property sold under executory process of the ordinary courts, and which did not come into his hands for administration and distribution. 10 A. 258.

3. The claims of the physician and nurse in last illness were opposed on the ground that the services were not rendered. They are sufficiently proven; and the objection, made in this court and in the brief of counsel only, that they were not recorded as privileges, was not pleaded and can not be now noticed. Non constat that if this defense and objection had been made below registry would not have been proven. The opposition to these items was properly overruled.

4. The sale referred to was not one made by the administrator or by the probate court. It was an executory proceeding in the Fifth Dis-trict Court, and the sale was made by the sheriff, who was not under the •control of the administrator. Nor is the administrator responsible for the sheriff’s illegal acts, if illegal they were, upon which we express no opinion. This ground of opposition was properly overruled.

It is therefore ordered, adjudged, and decreed that the judgment ■appealed from be amended as follows : first, by rejecting the administrator’s commissions on the proceeds of the property of the succession sold under executory process at the suit of the mortgage creditors ; 2d, toy the item of $10 notary’s fees for holding family meeting being •charged to and upon the minors’ claim of homestead; and, 3d, by remanding the case as to the two said items of clerk’s costs, to ascertain what portion thereof is properly chargeable to the succession under the -views above expressed.

It is further ordered that in all other respects said judgment be affirmed, and that the costs of appeal be paid by appellee.


text:
    No. 7181.
    Sun Mutual Insurance Company vs. Board of Liquidation. Secretary of State and Auditor, Intervenors.
    The sale of bonds constituting a part of the assets of the "free school fund,” made in virtue of act No. 81 of 1872, was utterly null and void, and conferred no title on the purchaser, and no future assignee of the purchaser, who took the bonds in good faith, for value, and before their maturity, could acquire a title to them.
    Bonds that are a part of the assets of the " free school fund ” are consigned by law to the custody of the Secretary of State and Auditor of Public Accounts, and those officers have a right to claim their possession in whatever hands they may be found. And this right is not affected by the prescription of three years.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Leovy & Kruttschnitt for plaintiffs and appellees.

      Jas. 0. Egan, Assistant Attorney General, for intervenors and appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs brought this suit to compel the Board of Liquidation to fund eleven bonds of $1000 each of the series issued to the New Orleans, Jackson & Great Northern Railroad under act of 1853.

The State, the Auditor, and Secretary of State intervened, alleging that said bonds belonged to and constituted part of the assets of the “ Free School Fund,” and pray that the same be delivered to them, the said Auditor and Secretary being the lawful custodians thereof.

The court below ordered the Board to fund the bonds, and rejected the demands of intervenors, as in case of nonsuit.

There is no serious contest over the legality of the bonds as lawful debts of the State. The contest is between the plaintiffs and the intervenors.

It appears and is admitted that these bonds did belong to and constitute part of the assets of the “ Free School Fund,” organized and created by acts No. 321 of 1855, and No. 182 of 1857, pursuant to the act of Congress of February 15,1843, 5th Statute at Large, p. 600.

It also appears that these bonds were sold, in pursuance of act 81 of 1872.

That they were acquired by plaintiffs before maturity, from persons who bought them at said sale. That plaintiffs are all citizens of Louisiana, and had no other notice of the fact that these bonds belonged to the “ Free School Fund” than would result from their presumed knowledge of the acts and proceedings of the State and its officials.

In “State ex rel. Durant vs. Board of Liquidation,” 29 A. 77, we had occasion to consider the legality and constitutionality of the act 81 of 1872, abolishing the “ Free School Fund,” transferring its assets to the- “ Redemption of Floating Debt Fund,” and directing their sale for the benefit of said last named fund. We there held that said act 81 was an act of spoliation — violative of the said act of Congress, and of the acts-of 1855 and 1857, carrying the same into effect, and of Art. 139 of the constitution of 1868, and that the sales of the bonds of said school fund under said act 81 were null and void and conferred no title on the-purchaser. We adhere to that view, and refer to that case as supplementary to our opinion in this. These sales were made in violation of prohibitory laws.

The Free School Fund having acquired said bonds,, they became-under the said act of Congress, and the acts of the Legislature of 1855- and 1857, carrying said act of Congress into effect, and under the constitution of 1868 affirming said acts of 1855 and 1857, inviolably appropriated, to the support of public schools, “ and for no other use or purpose whatsoever.” These laws to all intents and purposes took said, bonds out of commerce. They were placed in the special and joint custody of the Secretary of State and Treasurer, who were required to execute duplicate receipts therefor, and “to be and remain a perpetual fund” “ inviolably appropriated” to support of public schools.

We agree with the Assistant Attorney General that they ceased to be negotiable by virtue of these positive declarations of legislative will, and that the usages and laws of commerce relative to negotiable paper are superseded by these positive enactments, and are inapplicable to the case. We follow the commercial law only when it does not conflict with statute laws of the State, but no further. 21 A. 568. It is within the power of the State to destroy the negotiability of all paper, and to withdraw from commerce such things as it may deem proper.

Nor are we prepared to say that the purchasers of these bonds were guilty of no laches. Theyiean not plead ignorance of the laws of the United States nor of the constitution, laws, and public acts of the State. They therefore knew that sales of the assets of the school fund under act 81 of 1872 were illegal. They knew what bonds belonged to that fund, for they were exhibited in reports of the proper public-officers. They knew that these bonds had been illegally sold to pay the floating debt; for the sale thereof was duly advertised for thirty-days in the official journal and due return made and officially published.

Ordinary diligence and investigation of facts perfectly accessible and known or presumed to be known by all men would have protected plaintiffs.

The views we have taken and expressed herein render it manifest that the three years prescription pleaded by plaintiffs to intervenors’ demands can not be maintained. The intervenors do not ask any decree against the Board to fund said bonds, and we will therefore make no order in that-regard.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged, and decreed that plaintiffs’ demands be rejected, and that the intervenors be and are declared entitled to the possession and custody of the bonds sued on in this case, which are decreed to belong to the Free School Fund.

It is further ordered that said bonds be delivered to intervenors; and that plaintiffs pay costs of both courts.

On Application por Rehearing.

The plaintiffs’ counsel ask a rehearing, on the ground, among others, that “ there is no evidence in the record to show that bonds 716, 717, and 718, herein sued on, ever did belong to the Free School Fund.”

This suit was brought on eleven bonds, and a list giving the numbers of all the bonds held by the school fund was filed in evidence, these numbers being in many instances stated as from one number to another inclusive.

The plaintiffs’ counsel filed an elaborate brief, and argued the case throughout upon the hypothesis that all the bonds in suit belonged to that fund, nowhere intimating that in that labyrinth of numbers three of the bonds sued upon were not embraced.

This court has labor enough, and its power is sufficiently taxed, to decide the issues presented and pressed by counsel, without exploring records to discover defenses and points not urged.

If the counsel had in any way called our attention to the fact now . urged — indeed, it they had not misled us by an argument which seemed to admit that all the bonds sued upon were of those held by the school fund, we should not have made the oversight complained of. We will grant the rehearing only for the purpose of correcting our decree in regard to those three bonds. We see no reason to change it in other respects.

The rehearing is granted.

On Rehearing.

There is no evidence showing that the bonds sued on by one of the plaintiffs, J. E. G-lenny, and numbered 716, 717, and 718, belonged to the Free School Fund.

It is therefore ordered, adjudged, and decreed that our former decree herein be so amended as to reject the claim of intervenors to the three bonds above named; and it is now ordered and decreed that as to said three bonds the judgment appealed from is affirmed, and that they be and are declared legal and valid debts of the State, issued in strict conformity to law and for a valid consideration, and not in violation of the constitution of this State or of the United States, and are as such entitled to be funded in consolidated bonds.

It is further ordered that as to said plaintiff, Glenny, he recover costs of the lower court and pay those of this appeal. That in all other respects our former decree remain undisturbed.

Mr. Justice White took no part in the original, and takes none in this opinion.


author: White, J.

text:
    No. 7296.
    The State vs. J. O. King.
    An information which charges that the accused stole " one mule valued at seventy dollars, the property of John M. DeKee,” sufficiently describes the stolen property.
    The granting of a continuance in a criminal case is within the sound discretion of the court.
    APPEAL from the Eleventh Judicial District Court, parish of Union. Cfraham, J.

      H. N. Ogden, Attorney General, for the State.

      Rutland & Kilgore for defendant.
   The opinion of the court was delivered by

White, J.

The defendant having been informed against for stealing a mule, and having been convicted and sentenced to hard labor for four years, appealed therefrom. The record contains no assignment of errors or bill of exceptions. A motion was made to quash the information on the ground of want of proper description. The description in the information is “ one mule valued at seventy dollars, the property of John M. DeFee.” The description was sufficient. Archbold, Pomeroy’s Notes, vol. 2, p. 1160 ; Gabriel vs. State, 40th Ala. 357 ; People vs. Littlefield, 5th Cal. 355. An application for a continuance was made, which was overruled ; no exception was taken to the refusal to grant the continuance asked. The matter was within the sound discretion of the district court, and as shown by the face of the application proper steps had not been taken to procure the attendance or testimony of the witnesses whose absence was made the basis of the asked-for continuance.

Judgment affirmed.


text:
    No. 7182.
    Mrs. Louise Destrehan vs. Police Jury, Parish of Jefferson.
    The lease of a building for a court-house made under the authority of an ordinance of the police jury of a parish is utterly invalid, unless means for paying the rent stipulated in the lease is provided for in the ordinance.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Cotton & Levy for plaintiff and appellee.

      Josiah Fisk, District Attorney pro tern., and Ellis & Ellis for defendant and appellant.
   The opinion of the court was delivered by

White, J.

On the 14th of April, 1874, plaintiff leased to the Police Jury, Bight Bank, parish Jefferson, a certain portion of ground, with the buildings thereon, for the terna of five years, the stipulated rent being as follows: Five hundred dollars for the first year, one thousand for the second and third years, and twelve hundred dollars per annum for .the fourth and fifth. The lease purports to have been made under two-resolutions of the Police J ury, the one asking for proposals for leasing property to be used in establishing a court-house, the other accepting the proposal of plaintiff. The present suit, filed on the 14th Nov., 1877, is to enforce the lease thus made, to recover the sum of thirty-four hundred dollars ($3400) rent due and to become due under the lease.

The Police Jury make the following defense :

First. That the buildings were used for a court-house and parish offices, and were therefore a common parochial expenditure, they owing only their pro rata, and the “ Police J ury, Left Bank,” the remainder.

Second. That the lease created a debt or expenditure without making provision for its payment, and is therefore null.

1. The view we have taken of the second defense renders an examination of the first.unnecessary.

2. The lease was undoubtedly the creation of a debt, and we can find nothing, either in the resolutions calling for proposals and accepting that of plaintiff or in the lease itself, indicating in any way the making of provision for the debt thus created. The terms of the law are unambiguous: “The police juries of the several parishes and the constituted authorities of incorporated towns and cities in this State shall not hereafter have power to contract any debt or pecuniary liability, without providing in the ordinance creating the debt the means of paying the principal and interest of the debt so created.” R. S. 2786.

This provision has been uniformly enforced. Benham vs. Parish of Carroll, 28 A. 343 ; Smith vs. Parish of Madison, 30 A. 461.

The case is sought to be removed from the operation of the statute by contending that under the second section of Act No. 71 of 1874 the-Police Jury, Right Bank, were authorized to establish a court-house. But it is obvious that the mere delegation of a power does not delegate-the right to the exercise of the power in violation of a general and mandatory law. To establish imports to establish according to law. It is an elementary canon of construction that a special does not repeal a general law unless irreconcilably inconsistent, and we see no possible-inconsistency between the power to do and the obligation so to do in the-manner pointed out by law, and this reasoning meets also the argument-drawn from the general powers given to police juries to provide courthouses. R. S. 2746. The two provisions must be construed together. It is contended that the expense herein was necessary. Grant that it was; the mere necessary nature of the expenditure could not dispense from the necessary duty of providing according to law. The argument,' If argument it be, that because the Police Jury occupied the premises they ought to be condemned, however equitable, would not .justify us in disregarding the law. It more justly addresses itself to the conscience of the Police Jury to provoke under a quantum meruit legal provision lor what they may so in conscience owe.

The judgment of the lower court was in favor of plaintiff. We think it erroneous. It is therefore reversed, and the suit of plaintiff dismissed at her cost.

On Application foe a Beheabing.

We have been urged to remand this case to afford the plaintiff an opportunity of showing that provision was duly made for the claim. Our original decree was only one of nonsuit, and if the facts claimed can be shown the plaintiff will be able in another action to make that sufficient proof, said to be in existence, but not in the record before us. However, we will grant the rehearing, for the purpose of correcting our decree in such a manner as to leave no possible room for doubt of its being any other than one of nonsuit.

ON BEHEABING.

It is ordered that our former decree be so modified as to read as follows : The judgment of the lower court was in favor of plaintiff. We think it erroneous. It is therefore reversed, and the plaintiff’s suit dismissed as in case of nonsuit at her cost.


text:
    No. 7396.
    The State vs. Amos Avery.

      A witness who testifies to the confessions of one accused of crime is not reauired to swear to the precise words of the accused. It is enough that he testifies to the substance of what the accused said.
    "Whether the confessions of an accused were induced by threats or promises is a Question of fact which this court can not review.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      H. 'H. Ogden, Attorney General, for plaintiff and appellee.

      Kenneth Baillio for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was convicted of horse-stealing. Ha seeks to reverse the sentence on two grounds :

First. The witnesses who testified to the confessions of the accused stated, in effect, that they could not and would not undertake to swear to the precise words of the prisoner; but that they did remember the substance of his declarations. This was sufficient. To require more would be to effectually close the mouths of conscientious men when called on as witnesses to testify to such confessions.

Second. It was further objected that the confessions were not voluntary ; but were the result of threats and promises. The judge states that the evidence satisfied him of the contrary. He was the proper judge of the weight and credibility of the testimony of the witnesses detailed in the bill of exceptions. Whether those confessions were or not induced by threats or promises was a question of fact which we can not review.

Judgment affirmed.


author: Mare, J..

text:
    No. 7359.
    Widow Fields, Tutrix, vs. Gagné and Wife.
    The parish court is without jurisdiction of an action of revondication brought to recover property worth over $500, and which was sold by the administrator of a succession no longer in existence.

      A parish court has no jurisdiction of a suit brought to annul a judgment of a district court.
    ^PPEAL from the Parish Court of Terrebonne. Sidney, J.

      Thomas L. Winder for plaintiff and appellant.

      Lawrence F. Suthon for defendants and appellees.
   The opinion of the court was delivered by

Mare, J..

Joseph A. Gagnó was administrator of the succession, and tutor of the minor children of Frank Gagné.

In the course of administration he provoked the sale of certain property belonging to the succession ; and at this sale his wife, claiming to be separate in property by judgment of the district court, purchased a block of brick stores in the town of Houma, at the appraised value,-$3000. He also rendered accounts, provisional and final, which were homologated ; and he was discharged from his office as administrator. Subsequently he filed his account as tutor, and resigned the tutorship ; and Mrs. Fields became dative tutrix.

In her capacity as tutrix Mrs. Fields brought this suit in the parish court of Terrebonne against the former administrator and tutor and his wife, the objects of which are, as stated in the prayer of the petition, to obtain judgment annulling and setting aside the sale of the suecession property to Mrs. Gagné; annulling and disregarding as absolutely null the judgment in favor of Mrs. Gagné against her husband decreeing a separation in property, and awarding her $1200 : annulling the several judgments homologating the different accounts rendered by Gagné as administrator and tutor, and the proceedings by which he in his capacity as tutor renounced, in behalf of the minors, the succession of their father, and the community which existed between their father and mother; and to compel him to render a full and complete account, etc.

Both defendants excepted ; but as this appeal is from the judgment maintaining the exception taken by the wife, and dismissing the suit as to her, and brings up for review nothing but that judgment, it will not' be necessary to consider that part of the case and pleadings having reference to the husband and his gestión as administrator and tutor. The views which we entertain require us to pass upon but one of the several grounds of exception relied upon by Mrs. Gagné; and that is the want of jurisdiction by the parish court:

1. To annul the sale of the property in question, because the value exceeds $500;

2. To annul the judgment of separation, because it was not rendered in the parish court; and because the amount involved exceeds $500.

First. The nullity of the sale is not demanded by reason of any alleged defect in the order of sale ; but because of the alleged nullity of the judgment of separation, and the consequent continued existence of the community; and the incapacity of the wife, presumed to be merely a person interposed, to purchase property of a succession, at a probate sale, provoked by her husband, who was administrator. The object of the demand, so far as it relates to Mrs. Gagne, is to recover the prop- • erty. It is an action of revendication, as to her, involving purely a question of title to real estate, the value of which greatly exceeds $500. Such a demand is in no sense a probate case. If the succession of Frank Gagné were still open and in course of administration, the administrator could not maintain an action in the £ arish court to recover this property of Mrs. Gagné, because such a suit is of ordinary civil jurisdiction ; and the value is in excess of the limit of civil jurisdiction conferred upon that court by the constitution; art. 87. When Joseph A. Gagné filed his final account, and was discharged as administrator, the succession was closed, and the heirs went into possession through him in his capacity as tutor. When he resigned, and Mrs. Fields was appointed tutrix in his stead, she was not the administratrix; she was the legal representative of the minors ; and any demand against them or in their behalf, exceeding in amount $500, would be cognizable only in the district court.

Second. If the judgment of separation was an absolute nullity, it might not be necessary in order to revendicate property, the title to which depended upon the validity of that judgment, to demand formally by suit the nullity of that judgment; but the prayer in this case is : “That there be judgment annulling and disregarding as absolutely null-the judgment of separation of property,” etc. The parish court was not asked, in a collateral proceeding, to disregard a judgment set up as a muniment of title, because of its absolute nullity; but to render a judgmént annulling it. This the parish court had no power or jurisdiction to do, because that judgment was rendered in the district court, and a judgment annulling it, in a suit formally demanding the nullity, could only be obtained in that court. Besides, that judgment decreed not merely the dissolution of the community, the separation of property, and the right of Mrs. Gagne to administer her separate property, but also that she recover of her husband the sum of $1229 ; a pecuniary value of which the parish court could not take cognizance.

The judgment appealed from is therefore affirmed with costs.


author: Manning, O. J.

text:
    7383.
    Virginia Thomas vs. J. J. Dundas.
    A lessor may obtain the writ of provisional seizure, on making the proper affidavit for rents not yet due and exigible.
    On trial of the motion to set aside a writ of provisional seizure, evidence is admissible to showthat the affidavit on which the writ issued is false. And when such evidence is introduced the plaintiff must support his affidavit by proof.
    The facts giving rise to that “ reasonable apprehension ” in a lessor that justifies him in issuing a writ of provisional seizure, need not be convincing enough to support a conviction on a criminal charge. It is sufficient that they are of such a character as to rebut the presumption of malice, or wantonness in suing out the writ.
    Seizing the movables of a lessee of a plantation under a provisional seizure before the end of the year for which the place was leased, will not prevent the lessor from recovering rent for the whole year, when it appears that the possession of the land by the lessee was not divested by the seizure.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Farrar & Spencer for plaintiff and appellant.

      H. P. Wells for defendant and appellee.
   The opinion of the court was delivered by

Manning, O. J.

The plaintiff, in her individual capacity and as tutrix to her minor children, leased a plantation in Madison parish to the defendant for three years, commencing with 1876, the annual rental being five thousand dollars, payable in three equal instalments on the 15th. of October, November, and December of each year. One of the stipulations of the lease was that a failure to pay any instalment of the price should operate its dissolution ipso facto. The defendant paid the October and November instalments of 1876, not at maturity but without long delay, and did not pay the December instalment. He continued in the possession and cultivation of the plantation.

On Sept. 17,1877, this suit was instituted wherein it is alleged that the December instalment of the previous year was unpaid, though long since due, and that the defendant is further indebted to the plaintiff in the sum of five thousand dollars for the rent of 1877, to become due in the three following months as above set forth, and after making the usual allegation under oath, prayed a writ of provisional seizure of all the property that was subject to the lessor’s privilege. The writ issued, the property was seized, and the defendant failing to bond, the plaintiff executed bond Oct. 20th. and took possession of the movables.

It appears that the plaintiff, in February 1877, had taken the defendant’s note for the unpaid December instalment of the previous year, which note was payable the following October, and this fact was unknown to her agent who had made the oath that such instalment was long since due. The note recited that it was given for this over-due instalment of rent. When this was discovered, a supplemental petition vyas filed Nov. 2d of same year, setting forth the error, making the correction, and producing the note, and praying judgment upon it.

The defendant moved to set aside the seizure on several grounds; 1. that McDowell, who had made the oath and obtained the writ, was not the agent of the plaintiff and had no authority or power to make the affidavit, 2. that the affidavit is insufficient in not stating whether the debt was or was not due, 3. that the affidavit was false in this, that the December instalment of 1876 was not over-due as alleged, a note having been taken for it as above recited, and that the defendant had not attempted to remove any portion of the crop from the premises, nor done or said anything which could produce a reasonable apprehension that he would do it, and therefore the plaintiff had not any reason to believe or fear that he would do it. An answer was also filed, setting up the illegality of the seizure, and praying that the lease be dissolved from the date of the seizure.

Afterwards, in January 1878, the defendant notified the plaintiff’s agent that he should continue to hold the place, and cultivate it, during 1878, whereupon the plaintiff sued out an injunction, forbidding the defendant from holding the plantation longer, or doing any act as lessee, and praying that the lease be dissolved. This suit was consolidated with the other, and upon trial of both, judgment was rendered for .the sum claimed, less $280 deducted from the rent of 1877 because the court held that the lease was dissolved twenty-one days before the expiration of that year by the action of the plaintiff. The judgment then proceeded to dissolve the lease from January 4,1878, the date of the plaintiff’s petition praying such dissolution, and also set aside the provisional seizure. Both parties appealed.

It may be observed here, that since the judgment expressly dissolves the lease from and after January 4,1878, it does not appear consistent to allow a reduction of the rent for 1877 on the ground that the lease was dissolved twenty-one days before the expiration of 1877.

That McDowell was the accredited agent of the plaintiff is no longer disputed. That a lessor may obtain the writ of provisional seizure upon and for rents not due is indisputable. Code Prac. art. 287. The affidavit states explicitly that the defendant is indebted as charged in the sums specifically set out, and the charge of indebtedness mentioned the several maturities of the instalments, so that it appeared that the debt was not then due. This was equivalent to saying the debt was not due, though not stated in ipsissimis verbis, which was not essential. The only remaining ground of the motion to set aside the provisional seizure is the falsity of the affidavit.

The Reports are singularly meagre of authority, upon the question, whether evidence is admissible to disprove the affidavit-upon which the writ of provisional seizure is based. In Macarthy v. Lepaullard, 4 Rob. 425 a rule was taken to set aside the writ on the ground, among others, that the facts set forth in the affidavit were not true, and the lower court refused to admit any evidence in support of it, and on appeal this court said “ This evidence was refused, it appears, because offered for the purpose of supporting the grounds of the- sale, some of which belonged to the merits of the case, and others related to the verity of the allegations in the oath, which no law authorizes the defendant to disprove. We are not satisfied that the judge erred.” The plaintiff’s counsel cite this case as conclusive, under the idea that the words ‘ which no law authorizes the defendant to disprove’ is the laAguage of this court, and is the authoritative statement of a legal principle. A critical examination of the opinion will shew that this is an error. It is really a statement of the ground upon which the lower judge based his refusal to hear the evidence, for immediately following this court, speaking for itself, adds — ‘we are not satisfied that the judge erred’— and gives as reason, that there was nothing very explicit or precise in the grounds assumed, and it is difficult to separate the grounds for setting aside the provisional seizure from the general merits of the defence to the action.

The only other case is Salter v. Duggan, 4 Annual, 280, where the court say that the rule taken to set aside the writ (on the same ground of falsity as here) and the testimony adduced, did not go to the main action, but simply to the plaintiff’s right to a conservative process by which he desired to protect an alleged accessary of his claim, and considering the severe nature of the proceeding, it was held proper to relieve the defendant from the seizure, where the apprehension of the plaintiff is clearly proven to be mistaken or unfounded. So that neither case expressly decides the point, though the last does by implication, since the clear proof must be assumed to have been admissible.

We think proof is admissible to shew that the affidavit, upon which a writ of provisional seizure is based, is false, when offered upon trial of a rule or motion to set aside the writ, and it was confined to that in Salter v. Duggan. The process is sharp and sévere, and the party whorésorts to it may be required to prove reasonable grounds of his apprehensions, which may be acts or omissions of the lessee, or of his subtenants, as* in this case.

Primarily the plaintiff or lessor has only to make the oath required, by the Code of Practice to obtain the writ of provisional seizure. The lessee may offer proof to shew the falsity of this oath, and then and not till then is the lessor required to fortify his oath by proof of its truth. The terms of this lease as to payment had at no 'time been complied with. No payment had been made at the maturity of the instalments, and the third payment of the first year was not made at all. It may be said the plaintiff had condoned this by taking a note, but the fact remained as a circumstance to excite apprehension for the future. One of the sub-tenants had taken some cotton off the place, and the plaintiff’s agent was informed that cotton was being removed by others at night. Without recapitulating the evidence, it is sufficient to say that the plaintiff’s agent had reasonable ground for his apprehensions. The facts or acts which constitute reasonable ground in such cases are not required to be so complete and convincing as are necessary to support a conviction on a criminal charge. They need only be sufficient to rebut, any presumption of malice or wantonness in suing out the writ.

The defendant contends that he should not be held liable for any part of the rent for 1877 — that his contract was for the possession of the plantation the entire year, and was not susceptible of division, and as the seizure was made before the end of the year, he should pay no portion of the rent. The seizure was of the movables, and as to his possession of the land, he claimed in January 1878 that he had a right to continue its possession and cultivation even during that year, and was only prevented by the plaintiff’s injunction from effecting his purpose to retain it.

The judgment of the lower court is in part erroneous. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court setting aside the writ of provisional seizure is avoided and reversed, and that said writ is maintained. It is further decreed that • the judgment on the moneyed demand be amended by striking out the allowance of two hundred and eighty dollars as a credit on or deduction from the sum sued on, and with this alteration and amendment that the judgment of the lower court is affirmed, the defendant paying costs of both courts.


author: DeBlanc, J.

text:
    No. 7144.
    The State vs. Arthur Boitreaux.
    A sheriff can not legally authorize a constable elected in and for another parish to . execute, within the parish of which he is sheriff, an attachment issued for an absent witness in a criminal case, and a return made by such a constable that the witness " could not be found,” is not sufficient. A return in such a case must be specific, and describe what inquiry and search for the witness had been made.
    When a prisoner has, in proper time, ordered subpajnas to issue, he can not be compelled to apply for attachments, swear to the facts he intends to prove by his witnesses, or go to trial without them, until an earnest and vain effort has been made to bring them into court.
    Where a reasonable doubt exists as to whether an accused, charged with a capital offense, has had sufficient assistance given to him to enable him to produce his witnesáes, he must be given the benefit of the doubt.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Mo Vea, J.

      J. JI. Lamon, District Attorney, and H. N. Ogden, Attorney General, for the State.

      Chas. 0. Lauve and Alex. Hébert for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Arthur Boitreaux was indicted, in the parish of Iberville, for the murder of one Alfred Reneaud. He obtained a change of venue, was tried in the parish of East Baton Rouge, and — there—the' jury returned against him a verdict of guilty, with put capital punishment.” He was, accordingly, sentenced to hard labor in the State Penitentiary, for the term of his life, and — from said verdict and sentence— has appealed to this court.

It appears, by defendant’s bill of exceptions that, on the 12th of March, his trial was fixed for the 22d day of that month, and that, on the 12th his counsel ordered subpoenas to be issued for two of his witnesses, JDuplessis Bergeron and Yirginia Boitreaux, who reside — the' first in the parish of Iberville, the other in the parish of Pointe Coupee. His counsel’s instructions were not complied with, and the subpcenas ordered not issued. This grave neglect is not accounted for.

Though, in this respect, the prisoner’s instructions had been entirely-disregarded, the court, on the 22d of March, granted writs of attachment against said witnesses and postponed the trial to the 28th of said month. Those writs, directed to the sheriff of East Baton Rouge, were —by him — placed in the hands of a constable of the parish of Iberville, specially authorized, by him to execute the same, one in and the other out of the parish of the constable’s residence.

This was, partly at least, irregular. The sheriff could not, legally, have authorized a constable elected in and for the parish of Iberville, to execute an attachment in the parish of Pointe Coupée. The officer thus deputed could, under the law, have acted, either in his official capacity, or with the sheriff’s delegated authority, but within the limits of the parish in and for which he was elected and commissioned as constable.

C. P. 765 — Rev. St. sect. 638, 641.

He was, however, deputed to execute the important mandates of the court, and his returns thereon were — on that under which he was to attach Bergeron, “ could not find such a man,” and on the other, that under which he was to attach Virginia Boitreaux, “ could not be found.” This was not sufficient.

It is urged, in behalf of the State, that no description of the person or places of residence of said witnesses was given, except that they lived on False River. The answer to this argument is that, when the life and liberty of a prisoner are at stake, and that prisoner chained within the walls of a dungeon, it is the duty of the sheriff or of his deputies, in charge of subpcenas or attachments for his witnesses, to go to his dungeon, and obtain from him any information which may enable them to execute the process of the court; nor is this all: their return must show what steps they have taken, what inquiries they have made, from whom and where those inquiries were made, to find the prisoner’s witnesses. It is not for them to pronounce that the witnesses cannot be found, they must state every fact which, in their opinion, justifies their belief. This done, and the return presented, the judge then decides whether there has been, on the part of that officer, that diligent search without which the prisoner might be deprived of a constitutional privilege, and his life and liberty arbitrarily imperiled.

Constitution of 1868, art. —, Voorhies, Rev. St. sect. 992.

From merely the naked return “ could not be found,” written at the foot of the writ by one who had no authority to execute it, we cannot— in a cause of this magnitude, even presume that the constable has repaired to any section of the locality which — it is contended — was too vaguely designated; much less can we presume that the witnesses he was ordered to attach do not exist, or — if existing — do not reside in the designated section.

When — to procure the attendance of his witnesses — the prisoner has; in proper time, ordered subpoenas to issue, he cannot be compelled to apply for attachments, swear to the facts which he intends to prove by them, or go to trial in their absence, until an earnest and fruitless attempt has been made to bring them in court.

On the 28th of March, one of the prisoner’s counsel moved for a continuance of his client’s case, and based his motion on an affidavit prepared and sworn to by himself, in which he averred that, as the witnesses of the defence had not been subpcened, no search could have been made for them, and that, to the best of his belief, the accused could prove by them, and particularly by Virginia Boitreaux, that — prior to the homicide — the deceased had been in constant carnal communication with his — the prisoner’s — wife, and the prisoner notified of that fact.

Was the alleged adulterer killed in the bed, while leaving the bed, or trying to escape from the chamber of the accused ? Was he killed while the act of adultery was progressing, or immediately after the criminal intercourse, with or without deliberation? The circumstances under which the homicide was committed are not disclosed in the affidavit, and — in this respect — it is insufficient: but though unintentionally — as we have every reason to believe — the prisoner has — to a certain extent— been denied the process guaranteed to him by the constitution and the laws of the State for obtaining witnesses in his favor.

Const, of 1868, art. 6; Rev. St. sect.

“ It would appear — as said by Mr. Waterman, in his notes to Archibold’s Criminal Practice and Pleadings — that the moral sentiment of the civilized world justifies the homicide of a wanton destroyer of female chastity and domestic happiness.” In such a case, as the fact to be ascertained is whether the infliction of the indignity was the real, the immediate, the exclusive cause of the homicide, those who resent and avenge that indignity, should be vigilantly assisted in every sincere and reasonable effort to procure the attendance of the witnesses by whom the infliction may be established. Here, there is at least a rational doubt that the assistance extended to the prisoner was as complete as it should ever be, and he is entitled to the benefit of that doubt.

It is, therefore, ordered, adjudged and decreed that the verdict returned and recorded against defendant is annulled and set aside, the judgment appealed from avoided and reversed, and this case remanded to the lower court, to be there proceeded with according to the views herein expressed and according to law.


text:
    No. 6680.
    The State vs. George Bess.
    "Where the counsel o£ a defendant convieted'of manslaughter has in due season presented to the lower judge his written bills of exception to the rulings of the judge on matters of law, and without any fault of the accused or his counsel the bills of exception are absent from the files of the court, a new trial will be granted, even though it appear that the application for a new trial was not made to the lower court until after an appeal had been taken.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Mb Vea, J.

      M. N. Ogden, Attorney General, for the State.

      Edward B. Talbot and Ohas. 0. Lauve for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for murder — was convicted of manslaughter — and sentenced to hard labour for five years, and appealed. The prisoner’s counsel reserved several bills -of exception to the charge of the court, which were prepared for the judge’s signature, and handed to the clerk. The judge obtained them from the clerk for the purpose of assigning his reasons for the ruling, and they have not since been seen. The judge never assigned his reasons, and did not return the bills to the clerk. This was in April 1876.

In May 1877, another judge being on the bench, an application was made for a new trial, reciting the above facts, and stating that “ the counsel of the prisoner requested the judge, E. E. Dewing now residing in New Orleans, to return said bills of exception into court in time for the appeal, and was assured that the same would be done, but they have never been returned.” The counsel also allege that they cannot remember the reasons or grounds of exception, except those set forth in one of the bills. The judge then sitting refused the new trial because an appeal had been taken, and his jurisdiction had ended.

Technically, and perhaps really, this was true, but we cannot refuse to grant a new trial. The prisoner was charged with the gravest of crimes — was convicted of one, the penalty of which was the deprivation of his liberty, and had been sentenced to five years’ confinement. His counsel had excepted in his behalf to what they conceived to be erroneous ruling of the court -in matter of law, — and incorporated their objections in bills reduced to writing apparently in due time, — and by no fault of theirs, or of the prisoner, they were absent from the files of the court. Indeed it is not disputed that they came into the possession of the judge, who was unmindful of the fact that his retention of them was jeoparding one of the dearest rights of a citizen. If we should not grant the new trial, this retention would not only have jeoparded, but have lost to the prisoner his liberty for half a decade. We cannot permit such a result to be accomplished by the negligence and carelessness of a judge.

• A new trial of the prisoner is ordered, and the cause is remanded in order that it be had.


author: Mannins, O. J.

text:
    7299.
    The State vs. Stephen Perkins.
    The confession of one indicted for lareony, made while in custody, and without any threat, promise of reward, or immunity from punishment, is admissible in evidence.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Smith, J.

      H. N. Ogden, Attorney General, for the State.

      O. J. JBoatner for defendant.
   The opinion of the court was delivered by

Mannins, O. J.

The defendant was indicted for stealing a hog, and upon conviction was sentenced to one year’s hard labour.

The only bill of exception taken was to the admission in evidence of the prisoner’s confession. He had been arrested by six men, none of whom were officers and without any warrant. One of these was armed with a pistol, and two others had shot-guns. While held in custody thus, and while under guard, without any threat, or promise of reward, or of immunity from punishment being made, and without any violence being offered or threatened, the prisoner confessed the larceny. The court, in assigning its reasons for admitting the confession, says the confession was purely voluntary, that the prisoner requested the person to whom it was made to step aside with him as he wished to tell him something, and did tell him without solicitation, or promise, or threat the fact of the larceny, and the circumstances under which it was committed.

We think the confessions were properly admitted. 1 Wharton. Crim. Law, l 683.

Judgment affirmed.


text:
    No. 7372.
    Sarah T. Bowman et al. vs. P. G. A. Kaufman, Sheriff, et al.
    Where the plaintiff in injunction, and the surety on her bond take separate suspensive appeals from the judgment dissolving the injunction, and the plaintiff’s suspensive appeal is dismissed and a judgment on appeal is rendered against her surety, her right to take a devolutive appeal will not be suspended while the application for a rehearing on the part of her surety is pending. She has a right to a devolutive appeal so soon as the decree dismissing her suspensive appeal becomes final.
    On the merits, the j udgment rendered by this court in this ease, in the 30th Annual, p. 1021, is adhered to.
    APPEAL from the Seventh Judicial District Court, parish of West Feliciana. Yoist, J.

      Samuel J. Powell for plaintiffs and appellants.

      W. W Lealce for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

This case was before us last year, see 30 A. 1021.

Mrs. Bowman’s appeal was dismissed on March 6, on motion of defendants and appellees. We maintained the appeal of her surety on the injunction bond.

No application was made for rehearing by Mrs. Bowman, and our decree dismissing her appeal became final six judicial days after its rendition — i. e. on March 13.

On 23d April following, Mrs. Bowman took a second and devolutive appeal, citing all parties as appellees.

On March 6, the date of dismissing Mrs. Bowman’s appeal, the appeal of the surety was decided, reversing in general terms the judgment below,, and perpetuating plaintiffs injunction.

Defendants applied for and were granted a rehearing to correct this manifest error of the decree on the merits, and the court restricted its terms so as to operate only in favor of the surety.

It is now urged by appellees that this second appeal of Mrs. Bowman, on April 23, was premature, because the jurisdiction of this court continued in consequence of appellees’ application for rehearing up to May 6, when the decree on rehearing was rendered.

We think this an error; there was no rehearing asked on the motion to dismiss Mrs. Bowman’s appeal. Mrs. Bowman did not and the appellees who moved for the dismissal could not ask it. The rehearing was asked by appellees as to the judgment in favor of the surety on the merits. After her appeal was dismissed, Mrs. Bowman was in the cause only as appellee, and our decree could not pass upon issues between appellees.

The general terms of our first decree on the merits were the result. of inadvertence, and would, even without the correction made on rehearing, have been necessarily limited to the issues between the sole appellant and the appellees. We could not in the nature of things reverse a judgment as between two appellees.

Mrs. Bowman’s appeal having been dismissed by a decree final on March 13, she had the right to renew it, at any time thereafter, before the year expired.

The fact that a party is one of the appellees in a cause does not prevent his appealing subsequently from the same decree in order to have it corrected as between him and the other appellees. It is the only mode of relief open to him, since he can only file an answer asking amendments as against appellant.

The motion to dismiss is overruled.

On the Merits.

The case is identical with that decided by us on the appeal of .the surety, and is submitted on the same record and briefs.

We have twice before examined this case on its merits, and a third examination has,not altered our views as expressed in our former opinions, to which we adhere.

It is therefore ordered, adjudged, and decreed 'that the judgment appealed from be avoided and reversed, and it is now ordered that plaintiffs’ injunction be made perpetual, and that defendants pay costs of both courts.


author: Spenoer, J.

text:
    No. 7395.
    Roth Deblieux & Co. vs. Joseph Hotard.
    A decree of court refusing to order the executor, on motion of a judgment creditor of an heir, to turn over to the sheriff the undivided portion of the heir in a succession whose debts and legacies have not been paid, is an interlocutory decree from which the creditor can not appeal.
    The executor can not be compelled, under the garnishment process of a judgment creditor of an heir, to surrender the undivided portion of the heir in a succession whose debts and legacies are unpaid.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. . McVea, J.

      Alex. Hebert for plaintiffs and appellants.

      Barrow & Pope for intervenor and appellee.
   The opinion of the court was delivered by

Spenoer, J.

Plaintiffs being judgment creditors of Joseph Hotard caused a fi. fa. to issue, and made Samuel Mathews, testamentary executor of Alexander Hotard, deceased, garnishee.

McWilliams, another judgment creditor of Jospeh Hotard, intervened, denying plaintiffs’ right to seize by garnishment of the executor the rights of Joseph Hotard in the succession of his deceased father, Alexander Hotard. He further claims to be the first judicial mortgage creditor of Joseph Hotard, and claims to be paid by preference out of his hereditary interest in the said succession, the same being subject to his judicial mortgage. This intervention and opposition has not been put at issue or tried.

Mathews, the executor, answers the interrogatories propounded to him in substance as follows:

That he is the testamentary executor of Alexander Hotard, with seizin by the will of his entire estate, which is now being administered by him. That there are by said will special legacies to a certain stated amount, and an unknown amount of debts, and also expenses of administration yet to be ascertained. That he holds in his said capacity, as shown by the inventory, real estate valued at $18,800, personal property at $4296 70, and cash $5516. That Joseph Hotard is an heir to one tenth of said estate ; that it is as yet unknown what is due him, and it can not be known until said estate is administered and settled.

Thereupon plaintiffs suggesting to the court that it appears by the answers of the garnishee that he had property and effects belonging to the judgment debtor, Joseph Hotard, moved the court that said executor “be ordered to turn over into the hands of the sheriff all the property, rights, credits, and money now under his control, when same shall become due, and that same be applied to satisfy as far as it may the writ of ft. fa. in the hands of said sheriff against Joseph Hotard.”

After hearing, the court refused said order and plaintiffs appeal.

Appellee has moved to dismiss this appeal on the grounds that if the order appealed from is a final judgment it is not signed, and if interlocutory it does not work irreparable injury.

We think the order interlocutory, and the injury, if injury there can be, not irreparable. The substance of the motion is, to take the property out of the hands of one officer, the executor, and put it into the hands of another officer, the sheriff. It is manifest that until said succession is administered, and its debts and legacies paid, the executor can not be compelled to surrender the property, or any part thereof.

It is equally manifest that until said succession has been partitioned among the heirs or their assigns no specific sum or thing can be turned over to Joseph Hotard ; much less an undivided tenth of an aggregation of things. What authority or mission have the executor of the deceased and the creditors of one heir to ascertain, fix, and determine the amount or things to be turned over to that heir in a proceeding to which the other heirs are not parties ?

If, therefore, the plaintiffs have by their garnishment made a valid seizure (upon which we express no opinion), they can suffer no injury by the property being left in the hands of the executor, to be by him administered under supervision of the court, to the end that the debtor's interest therein, the thing supposed to have been seized, may be ascertained, fixed, and determined. If the seizure is valid, it is not, nor is the privilege resulting therefrom, impaired by leaving the property where it ought to be, in the hands of the executor. No irreparable injury can result therefrom.

It is therefore ordered that this appeal be dismissed at costs of appellant.

Mr. Justice White recused.


author: Manning, C. J. Spencer, J. White, J.

text:
    No. 6953.
    J. W. Montgomery vs. E. T. Wilson et al.
    The creditor o£ a vendor can not maintain a revocatory action to rescind the sale on the ground that the sale was in fraud of the vendor’s creditors, unless he shows that the vendee was a party to the fraud. The fact that the price of the sale was below the actual value of the property does not authorize a conclusive presumption that either the vendor or vendee was actuated by a fraudulent intent.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      J. W. Montgomery, in propria persona, appellant.

      W. G. Wyly & J. M. Kennedy and C. M. Pilcher for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

This is a revocatory action, in which the plaintiff seeks to annul a sale from Wilson to his co-defendant Ingraham of certain lands, and the sale of one half the same property by the latter to one Davis, also a defendant. Wilson owed the plaintiff over two thousand dollars. The debt was originally due the law firm of Sparrow & Montgomery, of which plaintiff was a member, and was acquired by him by transfer.

Wilson made the sale to Ingraham on Nov. 28,1874, the price being $10,000, of which one tenth was cash, and the residue was payable in four equal annual instalments. In less than a week, Ingraham sold the -undivided half to Davis for five hundred dollars cash, and Davis assumed the payment of one half of Ingraham’s notes. Wilson removed' to Texas shortly afterwards.

The petition alleges an intention by the debtor and vendor to defraud — the knowledge by the successive vendees of that intention, and their co-operation in effecting the fraud — and the accomplishment of the purpose through a sale of all the debtor’s property, and the placing the proceeds thereof beyond the creditor’s reach.

If the plaintiff has succeeded in sustaining these allegations by satisfactory proof, he will be entitled to a revocation of the sale, for it is not to be tolerated that a debtor shall be able to alienate all that he has to pay his creditor with, and his vendee, a participant in his fraud, shall reap benefit from the wrongdoing, and the creditor shall have no redress.

Ingraham avers in defence, that he bought in open market, in good faith, and for a valid consideration, and Davis reiterates these averments for himself. Wilson denies fraud, and alleges that, being desirous of removing from this State and establishing himself in a new country, he offered his property to divers parties for the same price at which he afterwards sold to Ingraham, and among the persons to whom he thus offered to sell was the present plaintiff, who refused it. Had he stopped there, the answer would have been straightforward and unobjectionable, but he adds — “ the notes sued on were obtained without consideration and the signature thereto obtained through fraud and duress.”

The notes were executed by him to Sparrow & Montgomery to defend him from an indictment for murder, and there is not a line of proof in the whole of the voluminous testimony to support the shameless pretence that the fee was not promised willingly by the imprisoned accused, or that his benefactors, who gave their time, character, and learning, successfully to his defence, extorted from his necessities what was but the guerdon of their services.

•The Code has consecrated certain fundamental principles of equity touching the relations of debtor and creditor, and the acts which may not be done by the one so as to affect the interests of the other. Thus it says, that every act done by a debtor with intent of depriving his creditor of the eventual right he has upon the property of such debtor is illegal, and ought, as respects such creditor, to be avoided, art. 1961. But only those contracts of the debtor can be avoided that are made in fraud of creditors, and such as would actually defraud them, if carried into execution, for if they are made in good faith, they cannot be annulled, even though they may prove injurious to creditors; and if in bad faith, they cannot be rescinded unless they operate to their injury art. 1973. new nos. 1969 and 1978.

' And as to those, with whom the debtor has made “the contracts, if the contract be onerous, but made in fraud on the part of the debtor, but in good faith on the part of the person with whom he contracted, if the value of the property transferred by such contract exceed by one fifth the price or consideration given for it, the creditors may annul it, and take back the property on paying the price with interest. But if the person, with whom the debtor contracted, be in fraud, as well as the debtor, he shall not be entitled to a restitution of the price, when the contract is annulled, except only to so much thereof as he shall prove has enured to the benefit of the creditors by increasing the value of the property, arts. 1976 — 7. new nos. 1981- — 2.

So Marcadé — il faut que l’acte, pour pourvoir étre revoqué, ait nui au cróancier et ait été fait frauduleusement. II faut d’abord que l’acte ait nui au cróancier, en causant ou augmentant l’insolvabilitó du debiteur, car, si celui-ci n’était devenu insolvable que plus tard, ce ne serait plus l’act lui-méme, mais telle ou telle circonstance postérieure, qui aurait causé la perte. II faut en outre qu’il y ait en fraude du dóbiteur, c’est-a dire qu’il ait accompli l’acte sachant le tort qu’il causerait a ses cróanciers, connaissant son insolvabilite. Exp. du Code Napoleon to. 4, «487.

It appears that the- act of sale from Wilson to Ingraham did not include the whole of the land, a small strip of the tract lying just above Lake Providence having been left out, not by design but through misdescription. Magruder, a judgment creditor of Wilson, seized this outlying strip in Dec. 1875. Ingraham and Davis injoined the enforcement of this seizure, alleging that the conveyance from Wilson did include that strip, and that their title, derived from him, transferred the ownership of the whole property to them. The plaintiff was the lawyer of Ingraham and Davis in this injunction suit, signed the petition, assisted in conducting the .trial. The injunction was dissolved. Ingraham and Davis plead now the estoppel by conduct against the plaintiff. This suit of Magruder was in the parish court, and was appealed to the District court, but before hearing, Davis paid Magruder’s judgment either from his own funds, or from funds furnished by parties interested, and in May 1876 Wilson made a supplemental deed, conveying to Ingraham the strip of land, and reciting that it was the intention of both parties to include it in the sale of 1874, and thus effectuating their will and understanding. No additional price was paid or stipulated. The present suit was instituted after the date of this second deed.

The evidence is entirely satisfactory that there was no fraud on the part of Ingraham or Davis. Wilson’s desire to sell, and intention to sell, was not a secret. The lawyers of the village all knew of it, and the offer was made to some of them. E. E. Montgomery, one of plaintiff’s counsel, was told by Ingraham that the property could be bought very cheap, and thinks $7,000 was mentioned as the sum — that Wilson was determined to sell, and wanted to give him (Ingraham) the preference, and Ingraham wanted him (the witness) to go in with him, and that he took “the matter under advisement, and tried to get Mr. Delany to go in, but received' no encouragement from him, and owing to the great uncertainty about the value of any kind of property here then, I let the matter drop. An additional reason was, I did not care to go in debt.” One of the reasons assigned, he thinks, for Wilson’s desire to sell was his alarm about the Sparrow debt, and the impression made upon the witness by Ingraham at this interview was, that Wilson wanted to get rid of the Sparrow debt. He adds, “ Mr. Ingraham did not communicate to me any intention or desire to defraud Gen. Sparrow, or any other creditor of Wilson. He said he had advised Wilson to go to Gen. Sparrow and make some satisfactory arrangement. I recollect once, I think very soon after the institution of this suit, I proposed to Mr. Ingraham to buy his interest, and tried to get him to fix his terms. After thinking of it a day or two, he told me he declined to sell, because Dr. Davis was not willing. I was sorry I did not go into this arrangement for the purchase of this property, but I did think it a good trade, and was willing to buy from Ingraham.” The witness intended, in the event of purchasing, to compromise the ‘ Sparrow debt,’ now held by the plaintiff.

Mr. Delany, also counsel for plaintiff, repeats the statement that In-graham before his own purchase apprised him and his law partner that “ this property could be purchased from Wilson for a small sum, and wanted them to go in with him and purchase it.”

Wilson swears that he offered to sell to the plaintiff, but the plaintiff states unequivocally that he has no recollection of such offer. Wilson states the offer thus ; — “ I made a written proposition to Gen. Sparrow proposing to take $10,000 for it (the property) taking the notes he had against me as part payment, and $2,000 in money, the balance in one, two, and three years with interest from date. He, Sparrow, refused the proposition and referred me to J. W.- Montgomery his partner. I then made the same proposition to him and he also refused to accept it. I told them both that I was going to sell the property. I made to Sparrow and Montgomery the first offer.”

Ingraham’s testimony is copious, and it has the ‘ring’ of honesty. His physical infirmity does not appear to have abraded his moral sense. Only a part of the testimony can be transcribed.

“ I had been trying to get Gen. Sparrow to buy Mr. Wilson out for about a year; requested Wilson to go to Gen. Sparrow’s house, not his office, that I thought the General would do what was right. Mr. Wilson returned. Told me he had seen the General. I then went and saw Gen. Sparrow myself, and asked him if Wilson had been there. I asked the General, why he did not buy his property, — that Wilson was in trouble and wanted to leave this country, after getting clear of the murder scrape. He replied, Wilson asked too much for his property, and I’m too old to go in debt.”

The General did not tell me what Wilson charged him for the property. Wilson had been asking ten thousand dollars for the property. Gen. Sparrow said he would see Judge Montgomery, may be he would buy it; that closed the interviews. Mr. Wilson said he could not get Gen. Sparrow to buy his property; he had offered it to me a year before I purchased it. I think it was generally known that Wilson was trying to sell his property and go to Texas. I told Gen. Sparrow, that Mr. Wilson had been in trouble and wanted to sell his property and go to Texas. Mr. Wilson was quite a young man. I had understood from a friend of Mr. Wilson’s that he would take seven thousand ($7,000) dollars for his property. I went to the office of Messrs. Montgomery & Delany, and told them what I had heard; that he would take seven thousand dollars for his property, and proposed them to go in and we would buy it of him. Messrs. Montgomery & Delany were both present, they declined the proposition, saying the property was worth little or nothing, they could never sell the lots ; the plantation was in a bad fix, which it was — no fence, ditches being filed up, and it was a cocoa patch, which it was. I talked with Gen. Sparrow about Wilson being greatly alarmed about his, Sparrow’s debt, it was so large ; he Wilson could never pay it without selling his property. When I bought this property from Mr. Wilson, he told me he would pay every dollar he owed in this parish. Called Judge DeErance in to witness the promise to me, as I would not have anything to do with the sale if there was anything wrong in it, which I told him. I told Mr. Wilson that if there was any fraud in this sale I would have nothing to do with it. He said to Judge DeErance, “ Judge, I am selling out to pay my debts,” that he would pay every cent he owed before he left the country. I consider the price I was giving Mr. Wilson for the property as a very high price at the time of the sale. I understood that Mr. Wilson owed nothing, except a debt of about $2,000 to Gen. Sparrow. He said the price I was paying him for the property would be ample to pay all his debts, and give him means of subsistence in Texas. At the time of the sale Wilson was not insolvent, the price I gave him for the property was a good deal more than what he owed. I have known Gen. Sparrow for about thirty years, and have been intimate personal friends for twenty years, and am still a warm friend of his. I never had any motive or desire to defraud Gen. Sparrow, or Judge Montgomery, or impede the collection of their debt against Wilson or. any one else. When I purchased the property, I had no impression of any motive on the part of Wilson to defraud either Gen. Sparrow or Judge Montgomery. He had stated to me he would pay every dollar he owed before he left the parish. I told Mr. Wilson that if I had the least idea of any intention on his part to defraud Gen. Sparrow or Judge Montgomery, or any one else, that I would have nothing to do with his property. I have been living in this parish thirty-ñve years. I have been engaged in managing the largest plantation in this parish for others, and have been a planter myself since I have been here. I had a large acquaintance among the old settlers, and I believe I know most every body that’s here now. I have always thought that I enjoyed the confidence of the people of the parish, ever since I have been here. I have had a great many business transactions with the people of the parish of Carroll. This is the first time since I lived in this parish of Carroll that I have been dragged before the courts on a charge of fraud. I paid one thousand dollars cash money, and Major Oliver counted the money. I have always been able to make moneyed arrangements, and believe I am abundantly able to buy the property.”

This testimony was objected to, but properly admitted, as being in rebuttal of that offered by plaintiff, and responsive to tbat part of the defence which repelled the charge of fraud. Without going into a recital of the testimony relative to Davis’ alleged participation in the fraud charged, it is sufficient to say that the evidence in its entirety satisfies us that Wilson had made up his mind to go away, and this removal, determined on with deliberation, was carried out with persist-ency. “I had gone out to Texas the July previous to look out a location to move to, and had made my arrangements to remove there. I had been involved in personal difficulties and trouble, and I felt that a change of association and location would be to my advantage.”

The execution of this fixed resolve to get away from his surroundings was obstructed, or delayed, alone by his inability to sell his property. He tried to sell it to Gen. Sparrow, and pay the debt now owned by plaintiff as part of the price. Gen. S. then owned one half of the debt. He tried to sell to others, and notably to lawyers who held a claim against him. No one would buy. No doubt his desire for removal became morbid. His words above quoted shew it was not a transient notion, but a fervent desire. He offered to sell to Ingraham, and Ingraham offered inducements to others to buy along with him. Everybody had a chance to buy cheap, but nobody would buy, until finally Ingraham closed the negotiation and bought. Then everybody found out that the property had been sold for a bagatelle, compared with its real value, and many believed it had been sacrificed.

The same thing occurs every week here. The witnesses who fixed the value of this property at (one of them as high as) $19,000, forget that the value of property in legal phrase is what it will sell for, and that the witness himself could have bought it for $7,000 and refused it. Gen. Sparrow would not buy it, because he would not encumber himself, even though an opportunity was afforded to realize the debt due to his partner and himself, and Mr. F. Montgomery was afraid of debt, and besides the value of all property was very uncertain. What appeared cheap that year might prove to be an onerous bargain the next year. Mr. Delany took the same view. The two witnesses, Sutton and Murfee, bought single lots at large prices, which form no criteria of the market value of the whole. Every one, to whom the offer to buy was made, knew that he could sell a single lot here and there for an enhanced price, but for all that he did not choose to try the speculation, because there were so many risks to run, and the future was so uncertain. The assessment was $6,000, and though that is not of itself proof of value, it is a fact worthy of note along with others tending the same way.

Sales cannot be disturbed upon hypothetical valuations or estimates of property, or upon the diminution of the price below what witnesses think it ought to have brought, or below what its actual value may be supposed to be. Its actual value as a saleable commodity is conclusively shewn to be the sum it actually brought in open market, with free competition, and fair opportunity to all comers to bid.

The fact that Wilson has not paid the debt to the plaintiff, which every consideration of honor and honesty demand should be paid, is an unfavourable and prejudicial fact to him. But the sale was not made with the intent of depriving his creditor of his eventual right upon the property. On the contrary he sought at first to enable the creditor to realize that right, nor was the party who contracted with him in bad faith, nor the price other than what it had been offered at without success. The plaintiff, upon this state of facts, proved with detailed circumstantiality, is not entitled to have the sale revoked.

The judgment is affirmed as to Ingraham and Davis, but must be reversed as to Wilson, and one of nonsuit entered.

The land was attached as the property of Wilson, and process of garnishment was taken against Davis. The plaintiff sued upon the notes, and an absolute judgment in Wilson’s favor might be pleadable in bar of a future pursuit of him. Therefore.

It is ordered and decreed that the judgment of the lower court is affirmed except that part thereof which is absolute and unqualified in Wilson’s favour on the demand for the amount of the notes, and as to that, that there be judgment in his favour as in case of nonsuit, the appellees to pay costs of appeal.

Dissenting Opinion.

Spencer, J.

I concur in the decree so far as relates to the halt interest of defendant Davis in the property attached. He purchased from Ingraham before this suit was brought, and there is no satisfactory proof that he was cognizant of, or party to, what I think were the fraudulent acts of Wilson and Ingraham.

Fraud is a ground of nullity in contracts only as between and against parties to them. It differs in this from error or lesion, which vitiate contracts absolutely. Thus a bona fide purchaser, without notice, will not be affected by frauds perpetrated between his vendor and antecedent owners of the property.

But as to the half interest of Ingraham, I think the sale should be avoided. He was the confidential friend and adviser of Wilson, and evidently well advised as to his purposes and intentions. He was overanxious that Wilson should do the fair thing with his creditors, Sparrow & Montgomery. He sent Wilson to Sparrow a day or two before he himself bought, with instructions to offer Sparrow the property. But note the terms. Ten thousand dollars in money, and the surrender of' the notes held by Sparrow for $4000 more. This, too, at the very timeIngraham was telling F. F. Montgomery and Delany that Wilson would sell out for $7000, and was endeavoring to persuade them to join him in the purchase. F. F. Montgomery, a perfectly reliable and disinterested witness, says that he gathered from Ingraham’s conversation that Wilson was anxious to avoid, “ to get rid of ” the Sparrow & Montgomery debt, and that that was his motive for selling. True, F. F. Montgomery declined to join in the purchase, for reasons satisfactory to himself, but this in nowise breaks the force and credit of his statements as to what Ingraham said and did. Finally, Ingraham concludes to purchase alone, at nominally $10,000, of which $1000 were to be cash and the balance on long time.

He proceeded with unusual, nay, suspicious caution. When he agreed with Wilson on the price and terms he calls in Judge DeFranee, and proceeds to declare himself in substance as follows : “ I have agreed to buy Ed. Wilson’s property at such a price ; but now, Ed., if there is any fraud in this — if you are doing any thing to defraud your creditors, I won’t have any thing to do with it.” Whereupon Wilson, of course, protests his good faith, and avers that so far from selling out to defraud his creditors, he is doing so to pay them. Having thus laid the bona fides of his conduct on a sure foundation, the parties proceed to the notary to pass the act. Marl^ Ingraham’s caution here. He was determined that there should be no “ afterclaps.” Major Oliver, a prominent citizen, is requested to come in and count the money. Wilson receives the money and notes, ostensibly discounts the latter at the rate of twenty-five per cent to S. W. Davis, and departs for Texas. This whole transaction between Wilson and Ingraham bears, to my mind, the brand ■of collusion upon its very front. Their whole conduct is unusual, and •evinces a degree of caution and painstaking which is not the natural production of good faith. Wilson is shown by this record to have received (if in truth he received any thing) but about $6000 cash for this property, and yet much stress is laid on his having offered it to his creditor a few days before for $14,000. So far from this offer to Sparrow proving Wilson’s good faith, to my mind it is one of the strongest evidences of the contrary.

The effect of this transaction was to put Wilson’s property beyond the reach of his creditors, if it be maintained. It was to render him, ■quoad his creditors, to all intents and purposes insolvent, and to defraud them. The rule in this matter is, that if “ the effect of the act ” is to Injure and defraud the creditors it may be avoided. C. C. 1978; 9 R. 273. Of course, if a debtor has available, tangible, seizable property sufficient to pay his debts, his creditors can not complain; but it would be a mockery of justice to say that a debtor can convert and pocket the whole of his property in money, with the avowed and known purpose of defrauding his creditors, and yet the purchaser, his adviser and co-adjutor in these acts, can defeat the revocatory action of creditors by suggesting that the debtor is not insolvent, but has more money in his pocket in Texas than his debts amount to. Our law says that when a party has sold or is about to sell, has converted or is about to convert into money his property to defraud his creditors, they may attach. If the sale, as in this case, is omnium bonorum, the law presumes fraud, and the creditors of necessity have the right to couple the revocatory action with a writ of attachment. Of course, if the revocatory action fails by reason of the good faith of, and good consideration given by the purchaser the attachment will fall; but not otherwise.

I think the sale as to Ingraham’s half should be avoided and the attachment maintained.

On Rehearing.

White, J.

Involving mainly a question of fact, we granted a rehearing of this cause, to afford us a second opportunity to examine the testimony. That re-examination we have carefully made, with the help of additional oral and written argument from both parties, and it has •served only to strengthen our original conclusion.

It is therefore ordered, adjudged, and decreed that our former decree remain undisturbed.

Justice Spencer adheres to his original dissenting opinion.