author: Mannxít&, C. J.

text:
    No. 7032.
    The State vs. Elbert Faulk.
    Where a party is tried for perjury, for having sworn in a civil suit that he witnessed the sale of certain property, he has the right to introduce in evidence the judgment of the court in said suit decreeing that said sale had been made, and the reasons for said judgment given by the court.
    Ho has also the right to show by witnesses that said sale took place on a different day from the one he had sworn to, even though the effect of such evidence is to contradict and discredit another witness in the case without having laid the basis for such, contradiction.
    In criminal eases it is not necessary that there should be any foreman of the jury. Nor is it necessary that the verdict of a j ury should be written, or signed. It is sufficient that a member of the jury utters the verdict orally. Nor is it necessary that the verdict should express the name of the prisoner, or the specific crime for which he is condemned.
    APPEAL from tlie Eleventh Judicial District Court, parish of Union. Graham, J.

      Allen Barksdale, district attorney, for plaintiff and appellee.

      L. B. Watkins for defendant.
   The opinion of the court was delivered by

Mannxít&, C. J.

One Henderson went to Texas in 1874 working a mule in his waggon. His creditor, Post, pursued him, and in a settlement between them, Post got the mule and brought it back. Henderson’s father thereupon brought suit against Post for the mule, alleging that he had only loaned the mule to his son. On the trial in the parish court, Paulk, the prisoner, swore that he had seen the elder Henderson sell his son a mule in the former’s lot. Henderson had judgment in the parish court, and Post appealed. On the trial in the district court, the prisoner was not a witness. Post had judgment there. But in the interim between the two trials of the civil cause, the prisoner was indicted for perjury, and from the verdict of conviction, and sentence to five years’ confinement in the penitentiary, he prosecutes this appeal.

A new trial was moved for the reason that “ the verdict of the jury is contrary to the law and the evidence, and in conflict with justice, humanity, and common sense.”

The issue was, did the prisoner swear falsely when saying that he saw Henderson sell the mule to his son. The judgment of the District court, decreeing title in Post under the younger Henderson’s sale to him was offered in evidence by the prisoner, and rejected by the Court because it was “between third parties, and was not res judicata as to the State, and not relevant to the issue in this cause.”

It is difficult to perceive what the principle, founded on the thing adjudged, has to do with this proceeding, or in what way it affects it. The prisoner was indicted for false swearing in a certain civil suit. He offered the judgment in that suit to prove a fact, viz that the court had solemnly adjudged that a sale had been made by certain persons of a certain animal. It was for swearing that he saw that sale made, that he was indicted. It may be that a sale had been made, and the prisoner did not see it, but that is outside of the question of the right of the prisoner to prove the judgment of the Court upon the identical issue to which he swore, and in accordance with the tenor of his oath. The evidence was not only relevant, but of the greatest consequence to the prisoner. The record of the court at which the perjury is charged to have been committed is not only admissible, but is so necessary a part of the testimony that it will not be excluded for a misrecital in a mere matter of date. Thus, if the day of holding the court at which the perjury is alleged to have been committed is misrecited in the indictment, the record of that Court of a different day was not excluded, the day having been laid in the indictment with a videlicet. State v. Clark, 2 Tyler 282.

There was also offered in evidence, and refused, the written reasons of the judge for the judgment in that case. That paper is as much a part of the suit as any other, and we know of no good reason why it .should have been excluded.

The prisoner offered one Goyne as a witness to -prove that the elder Henderson did sell the mule to his son at Earrar’s gin-house the day before the prisoner swore the mule was sold, but on objection by the State, •the court excluded the testimony on the ground that it'was “an attempt to contradict the witness Henderson by shewing that he had made different declarations as to the sale from those sworn to by him without laying the proper basis for such contradiction.”

The evidence was admissible for the purpose for which the bill recites it was offered, i. e. to prove that Henderson did sell the mule to his son, and thus to assist in establishing a fact, for swearing to which as a fact, the prisoner was charged with perjury. It did not matter if it did discredit another witness. The act to be proved by Goyne was the act which the prisoner swore he saw done.

Error is assigned in that the verdict is bad because not signed by any member of the jury, and is imperfect because reading simply — we the jury find the accused guilty — without mentioning his name, or of what crime.

There is no error in this. No foreman is appointed by the court to the petit jury in a criminal trial, nor need a jury designate one by name. The jury speaks through one of its members in delivering the verdict ore tenus, and it does not matter whether he be called, or whether the jury call him, a foreman or not. There is no need that the verdict should be written, and hence none that it be signed. In some parts of ■this State, the verdicts in criminal'eases are written, more perhaps be-* ■cause jurors have seen it done in civil causes, and supposed it proper or necessary to be done in criminal trials, but the practice in the country from which we derive our criminal procedure, and the practice in our sister States, is that the verdicts in criminal causes are always delivered ■ore tenus, and are recorded by the clerk, and then read to the jury as recorded, who are then asked if that is their verdict, and if the answer is yea, the finding, rendering, and recording is complete.

It is not necessary to notice other errors assigned. Sufficient has been said to entitle the prisoner to a new trial. Therefore

It is ordered and decreed that the verdict of the jury is set aside, And the judgment rendered thereon is avoided and reversed, and it is further ordered that the cause is remanded for a new trial of the prisoner to be proceeded with according to law.


source: Caselaw Access Project

author: Egan, J. Manning, C. J.

license: Public Domain

text:
    Nos. 6948 and 6949.
    State ex rel. Cora A. Slocomb vs. W. F. Rogillio et al. and Cora A. Slocomb vs. Jno. J. Barrow, Sheriff, et al.
    In a mandamus proceeding by a mortgage creditor to compel the recorder of mortgages to record his mortgage, so as to operate as a lien on his debtor’s property from a certain date, evidence is admissible to show the existence of other mortgage and judgment creditors of his debtor claiming rival liens on said property.
    The mortgage and vendor’s privilege reserved by a vendor of real estate, to secure the credit installments due by the vendee on the purchase price, becomes operative and takes rank, as to third persons, not from the moment the act of sale and mortgage is deposited with the recorder of mortgages for registry, but only from the moment it is actually inscribed in the Book of Mortgages, kept for that purpose, in the parish where the property is situated.
    APPEAL from the Seventh Judicial District Court, parish of West Feliciana. Yoist, J.

      Sami. J. Powell for plaintiff and appellant.

      W, W. Leake for defendant and appellee..
   The opinion of the court was delivered by

Egan, J.

On the fourteenth of February, 1877, the relator in the first and plaintiff in the second action sold to James P. Bowman the Hazelwood plantation, in the parish of West Feliciana, for $6500, payable in three annual installments, and retained in the same act a mortgage to secure the price. She caused a certified copy of the act of sale and mortgage, which had been passed before a notary in New Orleans, to be sent to,the recorder of the parish where the land lay for registry. It was received by him on the seventh .of March, 1877, and indorsed " filed *for record on the seventh of March, A. D. 1877, and truly recorded same' date in notarial record book R, pages 434 and 435, and in mortgage book H., pages 149 and 150, July 5,1877.” Subsequent to the registry of the-act in the book of conveyances, but prior to its registry in the book of mortgages, the land was seized under fieri facias at the instance of creditors of the vendee, Bowman. Whereupon the vendor, Mrs. Sloeomb, sued out a mandamus to compel the recorder to register her mortgage as of the date of the filing of the paper in the recorder’s office, to wit, March 7,1877, and to give it rank accordingly. She also sued out an injunction to stay the sale until the question of her rank and rights could be adjudicated, and prays that her mortgage may be decreed to have been “ virtually and legally transcribed in the mortgage records of the parish where the land lay from the date of filing of the act in the recorder’s office, seventh of March, 1877, and that it take effect on the property sold from date ; that her mortgage be deemed superior to the rights of the seizing creditor and the proceeds distributed accordingly; and that the recorder be required to make out for the purposes of the sheriff’s sale a certificate giving her mortgage the rank so claimed for it.”

The view we take of the matter in controversy makes it immaterial in this inquiry whether, as stated by the recorder, he was instructed by plaintiff’s attorney to record the act in the book of conveyances specially without any instructions as to registry in the mortgage-book, or whether,, as stated by the counsel, the instructions were general and simply to record the act, presuming that the recorder knew his duty and would record it both in the book of conveyances and of mortgages. Eor the same reason, it is unnecessary to consider a bill of exceptions taken to the reception of parol evidence of the contents of the lost letter of instructions accompanying the act. So far as relates to the mandamus case, we may as well now remark also that the exception to the reception of evidence of the existence of other judgment and mortgage creditors was not well taken. In a proceeding which would so materially affect their rights and rank if successful, they were necessary parties, and the evidence was properly admitted to show that in this proceeding the recorder could not be compelled to disregard the registered rights of others not parties to the proceeding, or to give on the books of his office now a priority to the relator’s mortgage over them. See 6 R. 299: 8 R. 97; Young & Wann vs. Hays, Recorder, 14 An. 654. The real and only question at issue here is whether or not the filing of the act of mortgage in the recorder’s office has the same effect as the transcribing or recording of the act in the book of mortgages. We have been referred to the case of Payne vs. Pavey, 29 An. 116, decided by us at the last term in New Orleans, as conclusive of the question. That case only determined the effect of the filing of a conveyance of lands in the office of registry, and it was correctly held under the positive and unequivocal provisions of the Civil Code that the conveyance took effect as to third persons from the date of filing in the proper office, although not actually recorded or transcribed in the boóks until long afterward, and we expressly declined in that case to express any opinion as to whether the same rule prevailed in regard to mortgages. It may be, and indeed is, argued that there is no good reason for a distinction, and that the same rules should apply to both. In the Pavey case we said what we have now occasion to repeat, that " the laws of registry are arbitrary,”' and that in many cases this court has considered itself bound to refuse relief, because “ ita lex scripta est.” However arbitrary the distinction may seem, and in fact is, the provisions of the law in regard to the time from which sales and mortgages shall take effect against third persons are essentially different. As we held in the-Pavey case, conveyances take effect against third persons by the positive and express terms of the law from the time they are deposited and filed for registry in the proper-office. In regard to mortgages which are siricti juris on the other hand,, the Oivil Code, art. 3329, provides in express terms that “ among creditors the mortgage whether conventional, legal, or judicial, has force only from the time of recording it in the manner hereafter directed;” article-3342, that these mortgages are only allowed to prejudice third persons-when they have been publicly inscribed on records kept for that purpose* and in the manner hereafter directed;” article 3345, that “ all mortgages* whether conventional, legal, or judicial, are required to be recorded in the manner hereafter provided;” and article 3348, that "any person entitled to a mortgage or privilege on the property of another person’ must cause. the evidence of such mortgage or privilege to be recorded in the mortgage book of the parish where the property is situated.” We here find not that mortgages like conveyances take effect from the time they are deposited or filed in the proper office, but only from “the time they are” actually “ inscribed” “ on records kept for that purpose,” and that the recording must be in the mortgage-book of the parish where the property is situated;” and so it has often .been held that the registry of a mortgage in the book of conveyances though in the proper office is insufficient and without effect as to- third' persons, the only exception being where it appears that only one book of record is kept, in which both sales and mortgages are registered indifferently. See 5 An. 154; 16 An. 435; 24 An. 78, and authorities cited.

In the 16th An. case, Carpenter vs. Allen, Judge Merrick said; “A mortgage is a real right, a jus in re, which in general, so far as third persons are concerned, can only be created by an observance of the forms of law.” In Taylor vs. Hotchkiss, 2 An. 917, it was held that a legal registry alone gives effect to the mortgage as to third persons,' as to whom it is valid not as executed between the parties, but as recorded. For any error in the registry the mortgagee must suffer, saving his recourse against the recorder. See, also, Walden vs. Grant, 8 N. S. 570. Again, it has been held that the remedy of the creditor who loses his rights for want of a proper inscription is against the officer in damages. His fault or fraud can not be visited upon the public. 4 R. 5; 2 An. 606, 800; 5 An. 632. In White vs. the Union Bank, 6 An. 162, and LeFlore vs. Carson, 7 An. 65, it was expressly held that it is not enough for one holding an act giving a privilege to deposit it with the proper officer to be recorded; he must see that it is done, or he will lose his privilege. In the '6th An. case, of White vs. Union Bank, Judge Slidell, as organ of the court, said: “We have been invited by appellant’s counsel to reconsider the opinions given in Ells vs. Sims and Perot vs. Chambers, 2 An. 253 and 801 (cases of imperfect or irregular registry held bad), and this mainly upon the ground of the strong equity of a vendor to show the price of the thing sold has not been paid. We have duly considered the arguments of counsel, and have not been able to reconcile a departure from those decisions with the express requisitions of the Code, nor to distinguish the facts of this cause from those of the cases referred to. It is the privilege of the vendor which Merrill claims; and we could not have decided the cases referred to in favor of such a claimant without expunging from the Code the article 3238, which declares that the vendor of an immovable or slave only preserves his privilege on the object when he has caused his act of sale to be duly recorded at the office for recording mortgages in the manner thereinafter directed.” The same provision is contained in art. 3271 of the B. C. C. of 1870 as to the vend- or’s privilege upon immovable property whatever may he the amount due him on the sale. And by articles 3273 and 3274 “ privileges are only valid against third.persons from the date of the recording of the act or evidence of indebtedness as provided by law” and “ no privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property is situated.” In the Union Bank case, just quoted, Judge Slidell further says: “It is contended that a party holding a deed of mortgage or act from which a privilege results, has done all that the law requires of him to preserve his rights when he has deposited the act for record in the proper office and with the proper •officer. But this proposition is inconsistent with the article 3238, which requires the creditor to cause his • privilege to be duly recorded. Supposing a prior and a subsequent mortgagee to be both innocent parties upon one of whom the negligence of the public officer must fall, it is more equitable that they should be borne by the former than the latter; because by diligence he could have assured himself that the mortgage was inscribed; whereas, the second mortgagee has in general nothing to rely upon but the officer’s certificate of freedom from incumbrance.” In th.e 7th An. case of LeFlore vs. Carson, p. 67, the court through the same organ, Judge Slidell, re-affirms the doctrine in White vs. Union Bank, 6 An., from which we have so freely quoted. In view of the authorities cited and of the textual previsions of the Civil Code we áre of opinion that Mrs. Slocomb’s privilege and mortgage was not preserved as against the seizing creditor or others of prior registry, and that she can neither successfully assert its superiority .over them nor compel the recorder to give to her mortgage any other place or date upon the books of his office than it now holds. It may not be amiss to remark, also, that even according to the statement of her own attorney he gave no specific instructions to record the mortgage in the proper book or to record the instrument as a mortgage, and it is shown by the evidence that neither he nor any one else ever paid or offered to pay the fees for such registry until the time when the mortgage was actually inscribed. We think this a proper case to. apply the rule laid down by Judge Slidell in the cases cited, and with him we may say that if the plaintiff is unpaid the resolutory condition remains to her. The provision of articles 2264 and 2266 C. G under the general head of registry of conventional obligations can not control the specific provisions under that head in regard to the registry of mortgages and privileges which we have quoted.

It is therefore ordered, adjudged, and decreed that the judgments appealed from which denied the mandamus and dissolved the injunction be and they are affirmed with costs of appeal.

Concurring Opinion.

Manning, C. J.

It is the duty of the. Recorder of each parish to-write on the back of each Act he receives, the time it was so received, and to record all acts without delay in the order in which they are received. These acts shall have effect against third persons only from the date-of their being deposited in the recorder’s office. Rev. Stats; sec. 3081.

There is no distinction made here between different kinds of acts, and if this provision stood alone, all acts would take effect from the date of their deposit in the Recorder’s office, and the filing written upon them by that officer would fix that date. But art. 3238 of the Civil Code (new no. 3271) requires the actual recording of the vendor’s privilege on land to enable him to preserve it, and a new article in the last Revisal, numbered 3348, which however is only a reiteration of the Act of 1869 (sec. 8 p. 116), compels persons who are entitled to a mortgage on the property of another person to cause the evidence of such mortgage to be recorded. A mortgage must therefore be not only filed in the recorder’s office, but' must be recorded in the proper book, in order to have effect against third persons.

I do not think however that it is necessary for a party or her attorney to give specific instructions to a Recorder to record an Act in a particular book. The Recorder is presumed to know his business and duty, and though the presumption is sometimes a violent one, it must be held to legally exist. It is his duty to record the Act in both the conveyance and mortgage books, if the act contains both a conveyance and a mortgage, and to do it without instructions. Neither do I think that a person is obliged to offer or actually tender the fees to the recorder when he delivers the act to him, in order to entitle the'party to have the act recorded. The recorder can demand the payment, and the instant payment of the fees, and it he does demand them, and the party refuses or neglects to pay them, he will have only his own negligence to blame for the non-recording of his act. But if the act is delivered to the recorder, and he files it, and says nothing about the fees, he has. induced the party to believe that he waives his right to the instant payment of them, and he can not afterwards excuse himself for his omission to record the act on the ground that his fees were not tendered. Nor do I believe that such defence would avail in an action on the recorder’s bond for damages sustained for not doing his duty in recording the act.

It may be fortunate that the relator has a remedy by the resolutory action. I concur in the decree.

Mare, J. I concur in this opinion.


author: DeBlano, J.

text:
    No. 6998.
    Walter C. Compton vs. Wm. L. Sandford.
    Parties are estopped from denying admissions or declarations deliberately made by them in j udieial proceedings,
    Judgments which are not absolutely null and void, can not be attacked in any collateral manner.
    The issue of title to certain property, passed on by a dnal judgment, can not be raised again in a subsequent suit between the same parties.
    PPEAL from the Ninth J udieial District Court, parish of Rapides_ . Blackman, J.

      B. J. Bowman and M. Byan for plaintiff and appellee.

      James G. White for defendant and appellant.
   The’opinion of the court was delivered by

DeBlano, J.

On the 3d of October 1866, George W. Compton borrowed from William L. Sandford, eighteen hundred and eighty-seven dollars. To evidence that loan, Compton executed a note payable in January 1867, and secured its payment, by mortgage oh a plantation .situated in the parish of Bapides. . That note was not paid at its maturity, and — in January 1874 — seven years after it had matured, Sandford obtained judgment for its amount, with a recognition of the mortgage -securing its payment.

On the judgment thus obtained, execution issued, the hypothecated land was seized and the seizure enjoined by two separate and distinct ■actions, one filed in the names of the heirs of Mary E. Compton, on the ground that — -with the exception of one hundred and fifty acres of said land, alleged by them to be the property of Angus Compton, the balance of the same belonged to them by inheritance from their mother — and the other filed in the name of Angus Compton, on the ground that he ■owned the one hundred and fifty acres acknowledged by his co-heirs to be his property, by purchase from Mrs. Hamilton and Frank and John ■S. Henderson.

The first mentioned of said injunctions was decided in favor of the heirs of Mary E. Compton, who — by the decree of the court — were declared the owners of the hypothecated land, less — of course — the one ■hundred and fifty acres alleged by themselves to be the property of Angus Compton; and the latter’s injunction — as to that portion of said land — dissolved by a judgment rendered on the fifth of June 1875. From this judgment no appeal was taken; from the other, Sandford -appealed, but without success: the judgment rendered against him and in favor of the heirs of Mary E. Compton was affirmed by this Court.

An alias execution was then issued on the judgment of Sandford against George W. Compton, and — under that second execution — the one hundred and fifty acres of land disclaimed by the heirs of Mrs, Compton, and the intended sale of which her son Angus had vainly attempted to prevent, was again seized to satisfy the aforesaid judgment.

This last execution and the sale of the land seized under it were enjoined by Walter C. Compton, the plaintiff in this suit, who avers that the portion of land thus levied jupón belongs — by inheritance — to him and the other children of Mary E. Compton, and is still held in indi■vision between them: that, as one of the children of said deceased— •and not otherwise — Angus is entitled to a share in said land: that, until -■a partition fixing the locality of his'own share therein, he can not be deprived of his ownership over the entire tract inherited by them, from •their mother, and that the acknowledgment by his co-heirs and his under tutor in the injunction suit, “ that Angus is the owner of a frae-tion of that entire tract,” is not binding upon him, for the reason that rsaid acknowledgment-was made whilst he was under age, and — so far as he is concerned — by Angus himself, who was then his under-tutor,, and claiming for himself the whole of the fraction alluded to.

The answer to plaintiff’s demand denies that, either at her death or at'any other time, Mrs. Mary E. Compton owned the land in question or any separate property.

If — under the pleadings — we could consider the evidence adduced of' Mrs. Compton’s title to the property mortgaged by her husband and seized to satisfy that mortgage, what does that evidence show ? that, in 1843, Mrs. George W. Compton obtained judgment against her husband for a sum which, as testified to by one of the witnesses, did not exceed two hundred and fifty dollars, a,nd — by another — four or five hundred dollars. Under two executions issued, one on her judgment — the other, on a judgment in favor of the heirs of Samuel Compton, the whole of the property of George W. Compton was seized, offered for sale and purchased by his wife for twenty thousand two hundred and ninety-one dollars, and that was, according to one of the witnesses, more than eighty times the amount of her judgment, and — according to another about forty or fifty times said amount.

During the month of May 1864, the courthouse of the parish of Rapides, and the records and papers therein contained were destroyed by fire, and — in 1868 — an act was passed by the Legislature to amend a previous act which provided for the supplying of said records and papers, among which were the judgment of and the sheriff’s sale to Mrs. George W. Compton.

The 3d section of said act is in these words: “That the party defendants in all applications for that purpose shall have the usual legal delay as in other suits, but when the said party answers he shall admit the petition or deny it partially or wholly, and said denial shall be under oath: whereupon the judge shall proceed to the trial without the intervention of a jury, and upon hearing the evidence shall decide and render judgment, establishing or not, the destroyed deed, bond, mortgage,, judgment or other writing as the evidence proves to have existed.”

The 4th Section provides: “that if the plaintiff or applicant makes, oath to the allegations of his petition, it shall be prima facie evidence-of the existence of such deed, bond, mortgage, judgment or other-writing &c.”

On the 14th of May 1869, Mrs. Compton filed an application in the district Court for the parish of Rapides, to have re-instated the sale of the 7th of October 1843, from the sheriff to her. Her husband accepted service of the wife’s unsworn application, waived time — meaning, at least we so presume, the delay allowed by law for answering, and — on the 17th of May 1869 — a decree was signed re-instating the applicant’s title, though no default had been taken against, no answer made by the defendant.

The property referred to in said decree was adjudicated to Mrs. Compton for more than twenty thousand dollars, the fortieth part of which, at most, could have been applied to the execution issued on her judgment, the evidence of which was destroyed by the fire of 1864 and has not been re-established. What became of the balance of the price ? The most of the property thus acquired by her composed the .separate estate of her husband, and it may be that said balance was the consideration of the alleged reconveyance of the land in dispute from the wife to the husband.- If so, the transfer was authorized by our Code.

Rev. C. C. art. 2446, number 1.

Not only did George W. Compton mortgage this land to Sandford, but he also mortgaged it to W. C. James, the tutor of the minors Hen'derson, and when — in payment of the latter’s claim, the said Compton conveyed them the one hundred, and fifty acres which plaintiff alleges that he and his co-heirs inherited from their mother, Mrs. Compton intervened in the act of sale and renounced in favor of said minors to any right which she then had or may have had on the property so transferred to them.'

It is true that her renunciation to any rights which she might have exercised on that tract of land, could and did not divest her of any title to the land itself: but, is not that renunciation at least a presumption that — legally or otherwise — there may have been a.reconveyance from Mrs. Compton to her husband? Whether there was or not, it is now useless to inquire, and why ? The rights and the extent of the rights of plaintiff and his co-heirs, as regards the tract of land now seized, are fixed by two judgments and the judicial admissions made in the pleadings on which those judgments are based. The fact that Angus Compton was. the owner of said tract, is not merely acknowledged, but fully established by a notarial act — and neither the judgment which recognizes the title of the heirs of Mrs. Compton, to the whole of the land claimed by them, and — as an irresistible inference — the title of Angus to that part of said land which was, not only not claimed by said heirs, but expressly excepted from their demand as belonging to said Angus— nor the judgment dissolving the latter’s injunction have been attacked in nullity by plaintiff, and the first mentioned of those two judgments has been affirmed by the Supreme Court.

If, by his pleadings, plaintiff had re-opened the litigation closed by those decrees, and had supported his mother’s alleged title, by none other but the evidence which we have before us, we might well have hesitated to acknowledge the validity of that title; but that litigation was and" remains closed, and — coupled with the evidence adduced on the trial — plaintiff’s pleadings do not justify his injunction.

As to defendant’s admission that subsequent to the sale made by the sheriff and his deed to Mrs. Compton, a reconveyance was made by her to G-. W. Compton many years before the youngest of the plaintiffs was born,” it can not be legally divided, and for the reason already stated, that Mrs. Compton was judicially separated in property from her husband, and may have transferred that land to him in payment of the balance due by her of the price of the adjudication to her of property inherited by and belonging to her husband; nor can that admission be justly disconnected from the assertion found on the same page that said land was not the property of Mrs. Compton at the time of her death. Besides, these declarations were made and passed upon in a controversy finally determined by a decree of the district Court, signed on the 5th of June 1875 and affirmed by this Court. In this case, the validity of the wife’s judgment is denied, and . her pretended title assailed as fraudulent and absolutely null. As to a part of the land, that title is protected by the aforesaid decree, which, however, does not cover the tract of one hundred and fifty acres; and — as to that tract— the injunction sued out by Angus to release its seizure and prevent its sale, was dissolved on the very day on which that of Mrs. Compton’s heirs was perpetuated — on the 5th of June 1875, and — from the decree dissolving Angus’ injunction no appeal was taken.

The plea of res judicata filed and urged by defendant must prevail, and this conclusion dispenses us from discussing the other questions raised in the briefs and bills of exceptions. That conclusion leaves no doubt that plaintiff has abused the equitable writ of injunction.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court is amended, plaintiff’s injunction entirely dissolved', and he, Angus T. Compton, and J. S. Compton — his sureties on the injunction bond, condemned in solido to pay to William L. Sandford, as damages, ten per cent upon the amount of the judgment, the execution of which was enjoined, with costs in both Courts, and — as thus amended— the decree of the Court a qua is affirmed.

The Chief Justice, having been of counsel in this case, recused himself and took no part in this decision.


author: Egan, J.

text:
    No. 6915.
    The State vs. Albert Williams.
    A verdict o£ conviction will not be set aside on the ground that the State’s Attorney refused to call and examine three witnesses present at the trial of the case, and alleged to be cognizant of all the facts of the case, when there is no averment, in the bill of exceptions that the accused was prejudiced thereby, and whon there is nothing to show that he did not have a fair and impartial trial.

      The crime of murder can not be prescribed. Time therefore is not of the essence of that offense, and therefore the time stated in the indictment is, in general, not material.
    As affecting the Question of prescription, as to prescriptible offenses, evidence is admissible-to show that the accused was a fugitive from justice, from the time the act charged was committed.
    A general allegation, in an exception, that the charge of the lower judge “ is not law," is too vague.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

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

      Folse for defendant.
   The opinion of the court was delivered by

Egan, J.

The accused was charged with murder and found guilty without capital punishment. The case comes before us on three bills of exception, the first of which is to the refusal of the court at the request of the prisoner’s counsel to compel the district attorney to call and examine on behalf of the State three witnesses, stated to be then present in court, and to be fully cognizant of all the facts submitted for investigation. The judge a quo refused to so order, as he states, because it seemed in violation of what had always been understood to be the law of this State, and this was the only case of the kind which had ever come to his knowledge. He states further that two of the witnesses named were relatives of the accused; the third was not. It appears from the bill that at the time it was proposed to call the witnesses in question, the State had already examined four or five witnesses on behalf of the prosecution, and the district attorney had announced that the testimony of the State was closed. The counsel for the accused relies upon the authority of the case of Hurd vs. the People, 25 Michigan, 405, in which it was held “ that the prosecutor in a criminal case is not at liberty like a plaintiff in a civil case to select out a part of an entire transaction which makes against the defendant and then to put the defendant to proof of the other part so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed; especially if it appears to the court that the evidence of the other portion is attainable,” and refers to the case of Maher vs. the People, 10 Michigan, 225-26, to the effect that it is the well-established rule of the English courts that all witnesses present at the transaction should be called by the prosecution before the prisoner is put upon his defense if such witnesses be present, citing 8 O. & P. 559, Orchard’s case same; note Boseoe’s Criminal Evidence, 164. The court however says: “Whether the rule should be enforced in all cases when those not called are near relatives of the prisoner or some other special cause for not calling them exists we need not here determine. Doubtless where the number present has been very great, the production of part of them might be' dispensed with after so many had been sworn as to lead to the inference that the rest would be merely cumulative and where there is no ground to suspect an interest to conceal a part of the transaction.”

It appears from the head note, and so we interpret these dicta, that the court held it to be the duty of the prosecution to put in evidence “ the whole of the res gestae.”

It is as true in Louisiana as elsewhere, as the court remarked in the 25th Michigan case, that “ the prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object, like that of the court, should be simple justice; and he has no right to sacrifice this to any pride of professional success.” This we have announced substantially in more than one decision since we have been upon the bench, and were a case before us in which it appeared that any unfair advantage of the accused had been taken in the progress of the trial in any important particular likely to influence the result, we should not hesitate to set aside the conviction. In the present case, however, there is no such statement in the bill of exceptions ; nothing; but the bare refusal to call and examine on behalf of the State the witnesses named. Neither the evidence given by those witnesses already examined nor that proposed to be given by the others is before us. We are therefore unable to determine for ourselves whether this case comes within the rule announced in the 25th Michigan case or not. The bill discloses no circumstance of suspicion, even, that a fair and impartial trial was not afforded the accused. The State had already examined four or five witnesses as to the facts of the case, and had rested the case for the prosecution. It is not suggested that the case thus made was imperfect, or that evidence given disclosed or rendered probable the existence of other or fuller evidence, or even that the witnesses" proposed to be called were present at the homicide. If they were, non constat but that their evidence would have been merely cumulative of that given by the four or five witnesses already examined. Some discretion must under the rule invoked be allowed both to the district attorney and the court a qua in a matter of this kind, and there is nothing to show that in this instance it was not properly exercised. The jury were the judges of the sufficiency of the evidence of guilt of the accused, and found him guilty. The rule in question has never prevailed in the courts of this State, nor are we prepared to admit the proposition that it is the settled rule of the English courts. We think otherwise, except with the modifications stated, and that as a rule the prosecuting officer of the State, who should be always mindful that, as said by us in another case, the State wishes no unfair advantage taken of any one accused in her courts, still has discretion to select his witnesses and manage the prosecution according to his best judgment under the eye and proper direction of the court,” whose duty it is also to see that a fair and impartial trial is accorded to the accused. It is to be presumed that this was done in the case at bar, and this ground of exception is overruled.

The second exception is to the reception of evidence that the accused was a fugitive from justice from the time the act charged was actually committed : first, because as affecting prescription, that was a question solely for the court and not for the jury ; second, beeause no evidence of fleeing from justice prior to the date stated in the bill of indictment was receivable, and that the evidence received was of a fleeing from justice after the actual commission of the act charged, but more than one year before the time stated in the indictment. Of this it may be remarked, 1. That time is not of the essence of the offense here charged, and therefore the time stated in'the indictment is in general not material. 2. That as affecting the question of prescription the evidence was properly received, as otherwise the accused might have asked the court to instruct the jury, and such would have been the duty of the latter, to acquit the accused in case they should find from the evidence that he had been guilty of manslaughter only, and that more than twelve monthsfhad elapsed since the commission of the act. 3. That the jury did find the accused guilty of the imprescriptible crime of murder, although they qualified their verdict by adding under the statute “without capital punishment.” The fact of fleeing from justice has always been considered a circumstance of suspicion of guilt receivable in evidence in a criminal case, and in the present case the court a qua instructed the jury to disregard all evidence of fleeing from justice before the time charged in the bill. This ground can not be maintained.

The third and last exception is, that the written charge of the judge a quo to the jury “is not law.” We have not been favored with a brief by the counsel for the accused, nor are we informed in what respect the charge is not law, and we do not perceive it. As a whole the charge ■seems to us, if any thing, rather more favorable to the accused than perhaps strict law would warrant, and is in the main but the enunciation of well-established principles. The exception is too vague and general, and should have pointed out the particulars in which the law was violated by the charge of the judge, which occupies a dozen pages of the transcript. This ground is not well takeD.

The judgment appealed from is affirmed.


author: Manning, O. J.

text:
    No. 6715.
    The State vs. Henry Smith.
    The General Criminal Statute enacted by the Legislature ol this Stato May 4,1805, did not adopt, as a portion of our law, all the crimes and misdemeanors known to theCommon Law at that date. It merely adopted the Common-Law definitions of those offenses declared to be crimes by that act, and incorporated as a part of our system, the Common-Law mode of prosecution as to forms of indictment, method of trial, rules of evidence, and all other Common-Law proceedings in criminal eases.
    The crime of incest, although denounced, is not defined by any statute of Louisiana, and hence, there can bono conviction for incest under the laws of this State.
    APPEAL from the Second Judicial District Court, parish of Orleans. Pardee, J.

      H. K Ogden, Attorney General, and A. Ot. Brice, District Attorney, for the State.

      Sami. S. Carlisle for defendant.
   The opinion of the court was delivered by

Manning, O. J.

The defendant was convicted under an indictment for incest, and was sentenced to imprisonment at hard labor for life.

The counsel for the prisoner asked the court to charge the jury, that the. crime of incest, not being defined by the criminal statutes of Louisiana, must bo defined and construed according to the common law of England as it existed at and previous to the enactment of the Act of 1805, and that as incest was not a crime at common law, or defined thereunder in 1805 and previously, no conviction could be had under the statutes of this State.

The court refused the charge, and the prisoner reserved a bill, and appealed.

It is noteworthy that this is the first prosecution for incest ever brought before this court, and so far as we are advised, the first one ever instituted in this State.

The act of May 4,1805, provides “ that all the crimes, offences, and misdemeanors herein before named, shall be taken, intended, and construed according to and in conformity with the common law of England; and that the forms of indictment, (divested however of unnecessary prolixity) the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences, and misdemeanors, charging what ought to be charged, shall be, except as is by this act otherwise provided -for, according to the said common law.” sec. 33.

Observe that the statute specifically directs how all the crimes, offences, and misdemeanors herein before named shall be taken, intended, and construed, and how the prosecution of the said crimes, etc. shall be conducted. Among the many offences named in the preceding sections, for the commission of each of which a punishment is prescribed, that of incest is not to be found.

It has been held “that the legislature, in adopting the common-law rules of proceeding (procedure?), method of trial, &c adopted the system as it existed in 1805, modified, explained, and perfected by statutory enactments (of England) so far as those enactments are not found to be inconsistent with the peculiar character and genius of our government and institutions.” State v. M’Coy, 8 Rob. 545. But this decision, the soundness of which the profession have uniformly recognised, was digested by the then reporter with a different phraseoloy, having a more enlarged application than the text warrants, and Mr. Hennen has transcribed the Reporter’s version instead of that of -the opinion, and so has perpetuated the error. Eor it will be seen that the opinion speaks only of the common-law rules of procedure, method of trial, &c modified by England’s statutory enactments before 1805, as the system that was adopted by our act of that year, while the digest of the Reporter is, that the legislature in passing that act “must be understood as having adopted that system of law as it existed in 1805, modified” &c.

It was not decided by this court in that case that every act which was an offence at common law in 1805 was thereby made an offence here, nor is that a proper legal construction or reasonable intendment of the Act. On the contrary, with the manifest purpose of shutting out such construction, the Act of 1805 devotes thirty-two sections to providing how all the crimes should be punished which the legislature chose to visit with punishment, and as these crimes had specific designations in the common law, such as murder, rape, arson, etc. with well defined meanings, the act declares that those crimes, which had been already named in it, should be construed in conformity with the common law of England, that is to say, that the definitions of those crimes which were accepted or established by the common law, should be held as defining them here, and the mode of prosecution as to forms of indictment, method of trial, rules of evidence, and all other proceedings, shall be as at common law. But the Act does not adopt the whole Criminal law of England as it existed in 1805. It is only the definitions of those offences that are named in it, and the mode of procedure for criminal prosecutions, that were adopted by that Act. And it may be added that the omission from the re-enacted statute of the words ‘ herein before named,’ (Rev. Stats. 1870 see. 976), and the use of terms which embrace all crimes, does not affect the argument, as we shall see when we come to inquire whether this crime was one at common law, or by statute of England.

The 48th. section confirms this view of the intent of the legislature, where it is enacted — “that as soon as may be, after the passing of this act, the governor shall cause to be drawn up and printed and promulgated in the English and French languages, an exposition and explanation of each-and every of the crimes and misdemeanors herein before mentioned, which are not herein precisely defined, and of the rules of evidence, the mode of trial, the forms of writs and indictments, and all other proceedings as they are directed to be had in the 33d section of this act.” It was a definition only of each and every of the crimes and misdemeanors mentioned in that Act that was required, plainly demonstrating that henceforward no others were denounced by the law — that no other acts than those which constituted the crimes, known to the English common law by the names used in the statute of 1805, should be visited henceforth with punishment.

This interpretation is put beyond the possibility of cavil by the fact that in 1817, an act was passed supplementary to that of 1805, creating new offences, the first mentioned among them being the abominable ■crime of incest.

The definition of the crimes, directed to be made by the act of 1805, was not made. The thought then in the mind of the legislature may have been the germ of Mr. Livingston’s Oode, and it is not the least of the many singular features of this subject, that although that Code was compiled many years after 1817, no mention is made in it of this crime.

The Attorney General contends- that incest was known as a crime to the common law of England long before 1805, and had often been punished — that while it is true, the Ecclesiastical Courts alone had jurisdiction of the offence, the common-law courts exercised the power of controlling and regulating the jurisdiction of the Ecclesiastical Courts in determining within what degrees of affinity and consanguinity the crime could be committed. 3 Blk. Com. 87. His argument therefore is that it was made a crime here by the Act of 1805.

But we have already seen that the Act of 1805 did not adopt all the ■crimes and misdemeanors known to the common law at that date, but •did set forth specifically the particular crimes and misdemeanors which henceforth should be deemed offences against the State, and incest was not one of the number.

It is not mentioned in the statutes until 1817, and then and ever since it appears with the brief denunciation — whoever shall commit the crime of incest shall, on conviction thereof, suffer imprisonment at hard labor for life. Rev. Stats. 1870. sec. 789.

But what is incest ? It has not, like murder, a fixed and definite meaning everywhere. An act that is incest in one country is not criminal at all in another country. Nay more, an act that is incest in one of our sister States is not so in all. No man may marry his brother’s widow, or his wife’s daughter in Virginia, (Code, p. 470) nor within the Levitical degrees of consanguinity or affinity in Georgia. (Stat. Law p; 742), nor his son’s widow or uncle’s widow in Mississippi (Code, p. 494), but none of these marriages would be incestuous in our State, except as to some of the Levitical degrees.

The ‘ Digest of the Civil Laws in force in the territory of Orleans,’ published by authority in 1808, has this prohibition; — Marriage between persons related to each, other in the direct ascending or descending line is prohibited. This prohibition is not confined to legitimate children, but extends also to children born out of marriage. Among collateral relations, marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, and also between the uncle and the niece, the aunt and the nephew. Title IV c. II arts. 9,10. These prohibitions re-appear in our Civil Code (arts, 96, 97 new nos. 94, 95), and there is added the declaration that all other impediments on account of relationship or affinity are abolished, art. 98 new no. 96. So also our Code defines incestuous bastards to be those who are born of two persons who are relations within the degrees prohibited by law, (art. 202 new no. 183) and inflicts upon them disabilities, (arts. 217, 222, 914, 1475 new nos. 193, 204 with altered phraseology, 920i 1488.)

But here, is interposed the objection that these articles of the Civil Code relate only to the civil disabilities imposed upon the issue of marriages within the prohibited degrees. They do not impose criminal penalties upon the persons who thus marry. That Code of necessity, and from its nature and object, does not treat of crimes or their punishment.

It is therefore true that while our criminal statute attaches a punishment to the commission of incest, nowhere in our law is that crime defined. Shall it be said that the Act of 1805 does not define the crime of murder, and that no one will pretend that murder, for lack of such definition, is not a crime by our law ? The Act of 1805 does attach a penalty to the crime of murder, and does not to the crime of incest, and then provides that all the crimes named in the Act shall be taken and construed according to the common law of England. Is a crime not named in the Act to be construed according to that law? Criminal statutes must be construed strictly in favor of a party charged with their violation.

But we will consider the matter arguendo in the light most favorable to the State. Incest was not made a crime by the Act of 1805, bht it was by the Act of 1817. Since then the Act of 1805 provided, that all the crimes named in it should be construed by the common law of England, it may be assumed that whenever any act is thereafter made a crime by our law, it intends that such crime shall also be construed according to that law, so that when incest was made criminal in 1817, we have but to revert to the common law definition to ascertain what it is.

Incest was neither defined nor punished by the common law of England at or before 1805. It was punished by statute in that country, and death was the penalty, and its definition was supplied by the canon law. Says Blackstone — “ in the year 1650 when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilfuli adultery were made capital crimes, but also the repeated act of keeping a brothel br committing fornication were, upon a second conviction, made felony without benefit of clergy. But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual courts, according to the rules of the canon law.” i Com. 65. England has again made incest a statutory offence since 1805.

If tnen we are to take and construe this crime as it was taken and construed by the common law of England in 1805, because our statute of that year directed that certain enumerated crimes should be thus construed, albeit incest is not.one of 'them, we are met by the want of any common law definition of it, although the canon law contained one, and if we shall take the canon law definition, because it was adopted by the common law, then an act which was punishable as incestuous by the law of England in 1805 was not punishable here.

The State at this point contends that the legislature passed the act punishing incest with reference to the well established and received definitions of that word in books of authority. That would be a dangerous rule to apply to the construction of criminal statutes. Our statute is unlike any other. It lacks that precision which should always characterize the creation of a crime, and the imposition of a punishment. Elsewhere, the statutes enact that whoever shall intermarry, or cohabit, being within the degrees of consanguinity within which marriage is prohibited, shall be deemed guilty of incest. Archbold, Grim. Frac. & PI. 615 — 8 et seq. Our statute is simply, ‘ whoever shall commit the crime of incest’ —a crime which has not a fixed and definite meaning of itself, which varies in different countries and even in different parts of the same country, so that an act, undeniably lawful in one, is incestuous cohabitation in another.

Waterman tells us, writing of the criminal statutes of the States, that in making adultery punishable in the common law courts, they do not give a definition of the offence, and that such is frequently the case as to the higher crimes. “ They are not defined in our statute book, but are assumed to be well known as offences at common law; and under the general term denoting the offence, it is declared by law to be a crime, and the mode of trial and measure of punishment are alone prescribed by statute. If questions arise in such cases as to what constitutes the ■offence, recurrence is to be had to well established definitions, sanctioned by books of authority and adopted by long usage, and with reference to which, it may be supposed our legislatures have acted in passing the law punishing the offence.” But he adds, “It so happens, that on the present question (adultery) we derive less aid than usual from the lights of the common law, the crime of adultery not being cognisable by ■the temporal courts in England as a public offence, but only as a private injury, and hence we have not that distinct character of this crime well defined and made familiar to us by the books of common law that will be found to exist in relation to other offences.” Archbold,, Crim. Brae. & PI. notes 615.

That is precisely the difficulty in the present prosecution. And it is not removed by arguing from modern enactments, that they make offences, the injuring or destroying any line of telegraph, or railway, or •stuffing ballot boxes, and that to ascertain their meanings we can not go to the common law, but must understand and construe those words in their ordinary and- usually accepted signification. Injuring a telegraph or railway means the same thing in England that it does in America. Stuffing a ballot box means the same thing in Massachusetts •as in Louisiana. But incest means a totally different thing in each of these places.

We are compelled to discharge the prisoner, and in doing so, we •call the attention of the legislative department of the Government to the defect in the statute, to the end that it may be speedily remedied. It should declare that intermarriage or cohabitation between persons within the degrees of consanguinity within which marriage is unlawful, •constitutes the crime of incest, or such words as are used elsewhere in •other criminal statutes, and which have always been held to be necessary for the proper definition, and punishment of this and crimes which ■like this vary in meaning according to the temper, or religious notions •of different countries. For much curious learning on this matter, vide •Shelford on Marriage and Divorce, 154 et seep, and for computation of degrees, Cooper’s Justinian, notes 422 — 431.

It is therefore ordered and decreed that the judgment of the lower, ■court is avoided and reversed, the verdict of the jury is set aside, and the prisoner is ordered to be discharged from custody.


author: Manning, C. J.

text:
    No. 7027.
    The State vs. George Tennant et al.
    The citation of appeal, in a ease where the State is a party, must be served on the attorney fbr the Slate who has obtained the judgment appealed from. It absent,, the service must be made at his domicil as in ordinary cases.
    The obligation ot sureties on a bail bond is not affected by the fact that the indictment was found tor an offense of a higher grade than that expressed in the bond, and which higher crime includes the lower.
    It is sufficient, it by the terms ot tho bail bond, the offense is substantially although not technically described.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Mb Vea, J.

      J. H. Lemon, district attorney, for plaintiff and appellee.

      Herron, Bird <& Beale for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

George Tennant, George Brown, and seven others-were indicted for murder, notwithstanding which, it appears that the two above named were bailed. The bail bond was forfeited, and the three-securities have appealed by petition from the judgment of forfeiture.

The citation of appeal was directed to the district attorney, and served upon a person residing at his domicil, he being absent, and he insists that in that case, the service should have been on the district-attorney pro tern. He moves to dismiss on that ground.

It has been held that the attorney for the State, who has obtained the judgment appealed from, is the officer upon whom the citation of' appeal should be served. State v. Placenzia, 6 Rob. 441. If he be out of office, the service should be upon his successor, but if still in office, and absent, as was the case here, the service should be at his usual residence in the manner required by law for such service. The fact that another officer performs temporarily his active functions, during his-absence, will not justify us, in the absence of any legislation on the subject, in requiring that service of a citation of appeal should be served vicariously on such other officer.

Another ground for the motion to dismiss is, that two of the securities, appellants, injoined the enforcement of the judgment on the same-grounds upon which this appeal is based, and appealed from the judgment dissolving their injunction, and then abandoned their appeal. If there were any evidence of this, the action of two of the appellants could not prejudice the rights of the third security, but there is nothing whatever in the record to shew any injunction by any person, much less to shew for what causes an injunction was sued out, or that it was abandoned.

The motion to dismiss is denied.

It is objected that the offence mentioned in the bond, ‘ shooting with Intent to kill ’, is not the offence of which the parties were indicted, which was murder. The obligation of the bail bond is, that the prisoners shall appear and remain until discharged in due course of law, and •their sureties are bound, though the indictment be for a different offence from that for which they were committed. State v. Ridding, 8 Annual, 79. The validity of a bail bond is not affected by the indictment being found for an offence of higher grade than that expressed in the bond, and which higher crime includes the lower. State v. Cunningham, 10 Annual, 393. Even if this latter quality be wanting, where the accused is bound not only to appear at court to answer a specific charge, but also not to depart thence without leave of the court first had and obtained, the bond, if violated, can be forfeited, and the securities held to its payment. State v. Cole, 12 Annual, 471.

It is also objected that the offence, described in the bond; is technically not a crime.

There is not required in a bail bond the same accurate verbal statement of an offence that is required in an indictment. People v. Blankman, 17 Wend. 252. It is sufficient, if in the bail bond it be substantially, though not technically'set forth. The reasons that impel courts 'to require strict conformity to statutory or general rules for the structure of indictments, and for the description of crimes therein, do not apply to bonds, executed to enable accused persons to liberate themselves from imprisonment.

Judgment affirmed.


author: Spencer, J. George W. Stafford,

text:
    No. 6853.
    Henry Renshaw vs. Geo. W. Stafford, Executor, et al.
    The acknowledgment of a succession debt by the administrator of the succession suspends the prescription of the debt as' long as the property of the succession remains in the hands of the administrator, under administration.
    The owner and mortgagor of property sold for taxes, can not buy it in, and thus acauire a title to the prejudice of the mortgagee.
    The mortgagee’s rights on the property will remain in full force.
    i PPEAL from the Ninth, Judicial District Court, parish of Rapides. J\. Bowman, judge ad hoc.

    Clarke, Bayne & Renshaw and Jas. G. White for plaintiff and appellant.

      Robert P. Hunter for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff is the holder of four promissory notes of $3375 each, executed by the late L. A. Stafford, and secured by mortgage on the Edgefield plantation, in Rapides. The notes matured January 23d, February 23d, March 23d, and April 23d, 1861, and were duly presented' to George W. Stafford, dative executor of deceased, and by him duly acknowledged as just claims against the estate of L. A. Stafford on 20th December, 1865. The mortgage has been kept in full force by re-inscriptions from time to time. This suit is brought to enforce the said notes and mortgage on the said plantation, and to annul, or have declared inoperative, a certain tax-sale thereof, made December 13, 1875, to Mrs. Sarah C. Stafford, the widow in community of L. A. Stafford, and certain sales of portions thereof by her to other parties ; also to enjoin the tax-collector and Auditor from making or completing said sale to her. The executor and Mrs. Stafford pleaded a general denial and the prescription of five, and in this court, of ten years. The other defendants file a general denial.

As stated, these notes were formally presented to and acknowledged by the dative executor on 20th December, 1865. The present proceeding was commenced May 16, 1876. George W. Stafford qualified as dative executor of the estate of L. A. Stafford 2d October, 1865.

Between these dates no judicial proceedings were had upon these claims. The estate continued in the hands and under the control of the dative executor, who seems to have rendered no account of his administration, or done any other act looking to a settlement of its affairs. In November, 1875, the whole plantation was adjudicated to the State for several years delinquent taxes, which with the penalties were permitted to accumulate to amount of some $4000. The collector thereupon conveyed or sought to convey it, under act 105 of 1874, to Mrs: Stafford under circumstances hereafter to be stated.

The first question to be determined is that of the prescription of plaintiff’s debt; for if it be prescribed he is without interest 'to contest the sale to Mrs. Stafford or its effects.

We premise by stating that we do not consider the question as any longer an open one, as to the five-year prescription. It does not apply to a case like this. See 12 R. 507; 29 A. 495. We propose therefore to’ discuss the following questions:

First — Is the claim of plaintiff barred by the prescription of ten years? and.

Second — If so, from what date or event does that prescription begin to run ?

It may, we think, be conceded that the prescription of ten years is applicable to this debt, for it is one of that class denominated personal actions, which finds its prescription in the rule of art. 3544 C. C.

The real difficulty arises in determining the question when and in what event does this prescription begin to run ? Is it from the date of the presentation to and acknowledgment by the administrator ? Or is it from the time the administrator renders 'his first account without placing thereon the claim so acknowledged, or is it from the date of his final account ? We confess that these questions are surrounded with many and grave difficulties, and that there are apparent conflicts in the adjudications bearing upon them. A safe rule under such circumstances is to resort to fundamental and original principles of the law, and ascertain which of the various theories best accords with these.

We think that the following proposition may be accepted as fundamental:

That an administrator or dative executor is an officer of the court, and primarily the representative of the creditors of the estate. The effect of an administration is to take the property of the deceased out of the custody and possession of his heirs and place it in the hands of a trustee for the benefit primarily of the creditors, to be by him administered under the supervision and control of the court. It is in its effects not dissimilar to a deposit in pledge for the security of the creditors of the estate. C. C. 2979 et seg. There is no philosophic reason for distinguishing the effects of such an administration from those which flow from the administration of the estates of insolvents in the hands of syndics. The objects and purposes of the law are the same in both cases, to wit, the preservation of the property and its distribution to those entitled to it. The methods of procedure are very similar, and in many respects identical. The only real difference in the two cases is that one appertains to the estate of a living, the other to that of a dead man ; the surplus of the estate after paying its charges is delivered in the one case to the living debtor, in the other to the heirs of the debtor. It has been said by this court, 2 A. 925, that “ the property of a succession is the common pledge of the creditors. That an administrator is the trustee of the creditors; his first duty is to them, and his imperative obligation is to watch over their interests.”

In 3 A. p. 531, the court say: “ The assets left by an insolvent are the common pledge of his creditors. That pledge continues as 'long as there are assets to be divided.”

If the administrator and dative executor (for their relations to the creditors are the same, see 13 A. 581, 18 A. .63), are trustees for and of the creditors; if they are the judicial depositaries of the property of the estate, then it seems to follow' that their possession is that of the creditors of whom they are the mandataries.in some sort. It results further that the creditors are in possession through these trustees of the property and effects of the estate, which are their common pledge.

It is the well-settled jurisprudence of this State that possession by the creditor himself, or by his mandatary, of the pledge securing his debt operates a suspension of prescription as long as that possession continues. Seo 1 R. 55C; 8 R. 145; 11 R. 183.

As long therefore as the heirs of the deceased allow the property of his.estate to remain in the custody of the administrator, the trustee of the creditors, the principle stated requires that prescription, at least and certainly so far as their debts bear upon the objects of the pledge, be suspended.

The operation of this rule is of course limited to those creditors whose claims have been duly “recognized” by the administrator, or by judgment of court; for, until recognized in one or the other way, they are not classed as creditors of the estate, to be paid concurrently therefrom. C. P. 987.

We think these views harmonize with the provisions of the Code of Practice. The 984th article of that Code provides that no bearer of a claim for money against a succession, etc., shall commence an action against such succession before presenting his claim to the administrator.” The art. 985 directs the mode of recognizing the claim if the administrator finds it just. Art. 986 provides that “if the executor or administrator have any objection to it and consequently refuse to approve it, the bearer of the claim may bring his action,” etc. Art. 987 declares that the creditors, whose claims have been thus recognized (i. e. by acknowledgment or judgment), can only be paid concurrently, etc. Art. 988 provides for calling together these recognized creditors, when the administrator is ready to pay the debts. Art. 989 says that as these creditors “ can only obtain payment after certain delays, interest shall be allowed on their debts,” etc. By arts. 1053 and 1054, the administrator can not be required to pay other than certain privileged debts until after the expiration of three months, even if he have funds.

We think it manifest that the law never contemplated that a creditor whose debt has been formally acknowledged should bring a suit to establish his claim. The policy of the law discourages such proceeding; would punish it by inflicting the costs thereof on the creditor. True, the law gives him after a reasonable time, which may be a few or many, but never less than three months, according as property may be sold for cash or on credit, and according as other contingencies may happen, a right to compel the administrator to account. But if the theory of the defense is correct, such a proceeding by a judgment or acknowledged creditor would not prevent prescription running against them. For if a judicial demand interrupts prescription it wmuld seem that it is only when the object of that demand is the establishment of the right of the creditor; whereas, a proceeding against an administrator for a sale of property or for an account would be one in execution of an established right, rather than one in recognition of a disputed one. To illustrate, a creditor, on refusal of the administrator, proceeds by suit to obtain judicial recognition of his claim. Having obtained his judgment of recognition, he continuously for eleven years pursues the administrator to compel sales of property and accounts of administration. After ten years-of pursuit the administrator, who is his trustee, turns upon him. and says: “Your judgment is extinguished by ten years prescription; you have not cited me, and had your judgment revived.” Would it not be a full answer for the creditor to say, “You are my trustee; you hold property in your hands, put there as a pledge for my debt; your possession is my possession, and no prescription has run or can run as long as the heirs or other owners leave the pledge in your custody ?”

This was the view taken by this court in the case of. Succession of Romero, 29 A. 495. It is also the doctrine held by our own courts in -cases of “ Cessio Bonorum”’ 11 R. 348 ; 1 A. 365 ; 12 R. 155 ; 3 A. 531.

We have seen that there is no substantial reason for distinguishing between the cases of administrations of insolvent estates and those of deceased persons. In fact, insolvent successions are directed to be administered as estates of insolvents. See C. C. 1172 et seg.

We are referred by the counsel of defendant to the decision of this court in succession of Dubreuil, 12 R. 507, 516; and to that in Sevier vs. Gordon, 21 A. 373, as holding the doctrine that prescription begins to run against an acknowledged claim from the date of the acknowledgment. It is true that in the former case, on rehearing, this court so held, and that in the latter case the decision in 12 R. is referred to approvingly. On that rehearing Judge Simon, as the organ of the court, says: “We confess that the question presented is not a very clear one.” We think that in the original opinion in that case the decision, rendered by Judge Morphy as the organ of the court, is more conformed to the general principles of the law than the conclusion reached on the rehearing. Judge Morphy says: “Although under our laws no executory judgment can be obtained against a succession, the creditors are not without the means of asserting their claims and taking the necessary steps to interrupt prescription. All demands for money may be presented to the administrator, to be acknowledged by him. If the debt is admitted to be a just one, he shall write on the evidence of it a declaration which he shall sign, stating that he has no objection to the payment of such claim, after which the debtor shall submit it to the judge that it may be ranked among the acknowledged debts of. the succession. O. P. 984,985. Prom the time that this is done, which is equivalent to a judicial demand, prescription; we apprehend, must remain suspended, as the creditor can do nothing more against the estate, except it be to coerce the administrator to a prompt -settlement of the estate.” The rehearing was granted solely on the ground that this opinion seemed to rest upon-a state oí facts which did not exist, to wit, that after having been acknowledged the claim had been presented to the judge to be ranked. On the rehearing stress is laid upon the fact that it was not so presented' to the judge to be ranked; and this is the ground upon which the court reversed its former decree. The whole case proceeds upon the hypothesis that had this formality been complied with, then the opinion delivered by Justice Morphy would have been correct. Now we think that after the claim has been “recognized” by the administrator, its validity as an acknowledged debt of the estate in no wa.y depends upon its being “ranked” by the judge. This last formality touches not the question of existence or validity of the claim, but its “rank” or “classification” merely. This presentation to the judge is ex parte, and no time is fixed within which it is to be made. For aught that appears in the law, this presentation to the j udge, for the purpose of ranking the claim, may well be done when the administrator presents his account. Indeed, it would seem to us that that would be the proper time, as it would' then be done in concursa and contradictorily with the other creditors. In practice such is the mode.

We therefore conclude that after a creditor of an estate has had his claim duly acknowledged by the administrator the law does not contemplate any further proceeding on his part to establish it,- as against the estate. That in principle the administrator is his trustee, and holds-in possession, for his benefit, the property of the estate, which is the common pledge of the creditors. . That the creditor is not obliged to inaugurate judicial proceedings to preserve his right whilst this state of facts continues; and until an account is rendered ignoring his claim, or the possession of the administrator terminates, prescription is suspended. We think, therefore, that the plea of prescription is not well founded.

Ox the Merits.

George W. Stafford,

the executor, is the son of L. A. Stafford, deceased, and of Mrs. Sarah 0. Stafford, his widow, who has accepted the community.

It seems that the executor and the family of the deceased resided upon and enjoyed the fruits and revenues of the Edgefield plantation-from 1865 to 1875, but failed and neglected to pay the taxes thereon, which accumulated until they amounted, in November, 1875, to some $4000, when the property was advertised for sale to pay the same. The plaintiff went from New Orleans to Alexandria to attend this sale, and protect his interests as a mortgage creditor. At that offering the property was put up in lots, and some lots were adjudicated to plaintiff, and some to George W. Stafford; together sufficient to cover the taxes. Stafford declined to comply with his bids, and the collector, upon that as a pretext, refused to make a deed to plaintiff for the lots he had bought, and announced that he would re-advertise the property for sale. On November 29,-1875, the property was again offered, and adjudicated to the.State, for the taxes. On December 3, following, plaintiff deposited $4000 with the Fiscal Agent of the State, playable to the tax-collector of Rapides, and procured a letter from the Auditor advising -the collector of said deposit, as c‘ given to cover the purchase from the State of the lands ” in question, and requesting the collector to make title to plaintiff. It is not disputed that the collector received these notices before he had made any conveyance to Mrs. Stafford. The collector in his testimony says: “ I had received the Auditor’s letters of December 3 and 13, 1875, before the title was made to Mrs. Stafford. This whole business was clone with and through George W Stafford, and "I never met Mrs. Stafford in the transaction, nor had I any conversation •with her at all.”

To our minds Mrs. Stafford was the mere alter ego of George W. Stafford in these transactions. Good conscience forbids that the executor and widow in community of the deceased, under the circumstances of this case, should be permitted to take advantage of their own wrong, and thus deprive creditors of the estate of its effects. It was the duty of the executor, as, also, of the widow in community — they were under both a legal and moral obligation — to keep down these taxes, and to preserve the property for the creditors. Mrs. Stafford was herself personally bound, as widow in community, for one half of these taxes and one-half of these debts. The transaction can only be regarded and treated as a payment of the taxes, a redemption of the property for the benefit of the estate of L. A. Stafford.

Cooley on Taxation, p. 345, 346, says:

“ Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers. * * So the mortgagor, remaining in possession of the land, owes it to the mortgagee to keep down the taxes, and the law would justly be chargeable with connivance at fraud and dishonesty if a mortgagor might allow the taxes to become delinquent, and then discharge them by a purchase which would at the same time cut off his mortgage. There is a general principle applicable to such cases, that a purchase made by one whose duty it was to pay the taxes shall operate as payment only; he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. The principle is universal, and is so entirely reasonable as scarcely to need the support of authority. Show the exist•ence of the duty and the disqualification is made out in every instance.”

In 11 111. p. 383, the court say:

“It would be inequitable to allow Shaw, after mortgaging- the lands, to suffer them to be sold for taxes, and by buying them in himself defeat the lien of the mortgage. His purchase of the lands at a tax-sale, under such circumstances, must be regarded in the light of a payment •of the taxes by him.”

22 Maine 334 : “It was, moreover, the duty of the tenant for life to •cause all taxes assessed upon the estate during his tenancy to be paid, •and by neglecting it, and thereby subjecting the estate to a sale, he committed a wrong against the reversioners. And when he received a release of the title, if any were acquired under that sale, he would be considered as intending to discharge his duty by relieving the estate -from that incumbrance. To neglect to pay the taxes for the purpose •of causing a sale of the estate to enable him to destroy the rights of the reversioners would have been to commit a fraud upon their rights. This is not to be presumed. On the contrary, he must be presumed to have intended by procuring that release to extinguish the title under that sale.”

25 Cal. 45: “If the defendant toas under any legal or moral obliga'tion to pay the taxes, he could not, by neglecting to pay the same, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale. Otherwise, he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly.”

42 Maine 244, et seq., was a case as follows: A, for a valuable consideration, agreed to convey to B certain premises within two years, provided B paid a stipulated su'm of money within that time to A, and, also, a.ll taxes that might be levied on the premises, and an agreed sum anmially for rent. B failed to perform the conditions, allowed the property to be sold for taxes, purchased the tax title, and defended against A by force of that title. The court held: “ It was the duty of the tenant to pay the taxes upon the demanded premises. The -omission to do so -was a violation of good faith and a breach of the condition on which be occupied them. To permit him to set up a title which he has obtained by a violation of bis own duty, if it were in other respects good, would be most manifestly inequitable, and in fraud of the rights of the demandant. Such a defense can not prevail, either in law or in equity, and it requires no small degree of assurance to set it up in a court of justice.”

The judgment appealed from is erroneous, and it is ordered, adjudged, and decreed that the same be and is hereby annulled, avoided, and reversed; and, proceeding to render such judgment as should have been rendered, it is now ordered, adjudged, and decreed that the plaintiff, Henry Renshaw, have judgment against the estate of Leroy A. Stafford, deceased, represented by George W. Stafford, executor, for the sum of $13,500, with eight per cent interest on $3375 thereof, from January 23,1861, and like rate on like sum thereof from February 23,1861, a_nd like rate on like sum thereof from March 23, 1861, and like rate on the balance thereof from April 23,1861, till paid.

It is further ordered and decreed that, the special mortgage, as claimed and set forth in plaintiff’s petition, and in the act of mortgage by Leroy A. Stafford to West, Renshaw & Cammack, of date April 6, 1859, be and the sair e is recognized and made executory upon the property therein described to pay this judgment, and that said mortgaged property be seized and sold according to law for that purpose.

It is further ordered and decreed that the injunction prayed forby plaintiff be made perpetual against the defendants herein, and that the tax-sales referred to in plaintiff’s petition, whereby Mrs. Sarah 0. Stafford claims said property, as well as the transfers made by her to James Moore f n l Charles E. Jonette, be and they are each and all declared inopei afive, null, an 1 void as against the plaintiff in this suit.

It is further ordered that appellees pay all costs of this suit in the court below and of this court.

The Chief Jus'ice takes no p irt in this opinion.