author: Bermudez, C. J.

text:
    No. 9758.
    In the Matter of William Ross.
    1. Tho Supreme Court lias uo original jurisdiction in habeas corpus cases, wliicli do not come within the provisions of article 8Í) of the Constitution.
    2. Under an application for a certiorari, a question of law involving the validity of the proceedings attacked, may be determined by the Supreme Court.
    3. Proceedings under sec. 1768 R. S., relative to the confinement of lunatics and insane-persons in the State insane asylum, are not violative of the constitutional provision,, (art. 6) which requires “ due process of law,” previous to deprivation of life, liberty or property.
    4. A judgment of interdiction is not a condition precedent essentially required for proceedings under sec. 1768 R. S.
    A PPLICATION for Habeas Corpus.

      O'Sullivan c6 Biabe for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a habeas corpas and for a certiorari.

The complaint of the petitioner is, that he has been proceeded against, under sec. 1768, R. S., and that the district judge has illegally ordered him to be confined in the State Insane Asylum.

He charges that he has been deprived of his liberty without due-process of law and that a judgment of interdiction is a condition precedent sine qxia non, for such incarceration.

It is settled that this Court has no jurisdiction over the application as far as it prays for a habeas corpus. Art. Const. 89; 32 Ann. 1225, since affirmed.

It appears from the petition that the proceedings were conducted in strict accord with the requirements of sec. 176S, R. S.

Whether the evidence on which the district judge acted, was or not sufficient to justify the issuing of the warrant, is a question with which this Court has no concern. The application for a certiorari contemplates solely the determination of the question whether the proceedings in point of form and not of substance have been carried on according to legal requirements.

As the provisions of the Statute averred to have been observed, the-application cannot be made to rest on the ground of non-compliancewitli the same. .

But it is contended that the judge had no right to hear and determine at chambers and that the trial and decision of the matters submitted were without “ due process of laxo."

The Statute distinctly provides, that the person, represented as a lunatic, shall be brought before the judge at chambers and that if, after inquiry, the judge finds that such person ought to be sent to the insane asylum, he shall make out his warrant addressed to the sheriff, directing him to convey such person to said asylum.

The law giver has thus wisely provided for the protection of both 'Such person and society; for cases may and do arise in which a most •summary disposition should be made of those unfortunate persons, whose mental derangement may be such as to prove a just cause of alarm to individuals and to the public at large.

By the words “ due process of laxo,” found in the organic law is meant: 'that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Dartmouth College case, 4 Wheat. 519.

By the law of the land is intended a general law ; a law which hears before it condemns, which proceeds upon inquiry and renders judgmeat only after trial. Ib.

The right to due process of law, does not imply that, in every case, the parties interested, shall have a hearing in court. Cooley on Const. Lim, 355, note and authorities there cited; also 12 N. Y. 209; 6 Cold. 233; 2 Tex. 251; 4 Wheat. 235; 32 Ann. 1256; also Cooley, Const. Lim. p. 441, (351) notes.

Provision having been fully made for the hearing and determining of the matter under sec. 1768, R. S., and the hearing and determining having taken place in every respect in point of form, as required by The Statute, the petitioner cannot be listened to complain that he has been deprived of his liberty without due process of law.

The averment in the petition that the action of the district judge is not reviewable by appeal, is not at issue and besides, is not presented in the form in which the question might have been considered.

Although we have no jurisdiction to pass upon the sufficiency of the proof on which the district judge acted, still, as the question submitted is one of law affecting the regularity of the proceedings, we think we are authorized to consider and determine, whether a judgment of interdiction is or not required as a condition precedent sine qua non for the exercise of the powers delegated to the district judge under sec. 1768, R. S.

/The Statute does not and could not require it. If such judgment ■existed, it would not, of itself, authorize the commitment of the party, ■in the State Insane Asylum.

The interdiction laws apply to persons mentally debilitated, whether from senility, idiocy or other cause of unsoundness of mind — who own. property, which they are unable to administer and have no necessary reference to persons in necessitous circumstances, while sec. 1768, R. S... relates to impecunious “lunatics and insane persons.”

The proceedings under that section are quite different from those prescribed by the Code for the interdiction of persons. They are carried on in the name of the State for the protection of society summarily and ex parte. The commitment and keeping of the person sent to the State Asylum there to remain are at public expense.

In the case of an interdiction, the curator may, with the authority of the judge, have the interdicted attended either in his own home or-placed in a bettering house and confined for safe custody. R. C. C. 417; hut could not place him, as a matter of right and free of charge,, in the State Insane Asylum.

As a judgment of interdiction does not then necessarily prove lunacy, it is not therefore a condition precedent, sine qua non, a foundation-for proceedings and the issuing- of a warrant under sec. 1768, R. S.

It is therefore ordered that the application be dismissed with costs..


source: Caselaw Access Project

author: Pociib, J.

license: Public Domain

text:
    No. 9673.
    R. L. Cochran vs. Mrs. E. A. Violet et al.
    Exceptions -which affect the very foundation of the suit should he decided in limine, and: should not he referred to the merits.
    A demand for the payment of the price of property, which is in fact an action for the specific peifcrmance of a contract of sale, is inconsistent -with a demand for the rescission of the sale for non-payment of the price, and on a timely exception by defendant, plaintiff should he required to elect between the two inconsistent demands.
    A final judgment rejecting, on the ground of piescription of four years, an action by a minor-against his tutor for acts of the tutorship, cannot sustain the plea of res adjudicate to a subsequent action between tlie same parties for an account of the usufruct hy the surviving parent of the propeity of his child, after the termination of the usufruct.
    The legal effects of a purchase by the surviving father or mother of the community property at a sale thereof at public auction to pay debts, are not the same as a purchase by the same paity of said community property at the price of estimation, on the advice of a family meeting, under Article 343, C. C. Under the latter sale, the property remains, mortgaged to secure theprice; -while under the former, no such mortgage is recognized hy law. The only mortgage is in favor of minors on account of the tutorship, hut not. for the usufruct..
    The action for account of the usufruct is barred by 1he prescription of ten years only, to-be, computed from the termination of the usufruct.

      A PPEAL from tlie Ninth District Court, Parish of Tensas. Xjl Newell, Judge ad hoe.

      Wade E. Young for Plaintiff and Appellee.

      Percy Eoherts and Steele c6 Garrett for Defendant and Appellant.
   The opinion of the Court was delivered by

Pociib, J.

Plaintiff sues his mother for his share in the price of ■ adjudication to her of the property hitherto belonging to the community between herself and his deceased father, of which she had had the usufruct until she contracted a second marriage in October, 1881, and for a recognition of a legal mortgage to secure the payment of the sum -due to him.

As there were three heirs, issue of the marriage, he fixes his share at one-sixth of the price of adjudication, after deduction of the debts of ■the community paid by the widow and usufructuary.

He prays in the alternative for an account of administration of the ■succession and community of his deceased father, so as to judicially settle the amount accruing to him. And he finally prayed for the rescission of the sale of the community property in default of payment of his share of the purchase i>rice, and to be recognized as the owner of one-sixth of said property.

His suit was met by two exceptions:

1st. That his petition contained inconsistent demands, and that he •should be compelled to elect between his demand for payment of the balance due Mm and his prayer for rescission of the sale.

2d. In her second exception defendant urged numerous points, the principal of which was the plea of res adjudícala, predicated on the judgment rendered by this Court in a suit between the same parties, reported in 37 Ann. 221; and denying plaintiff's right to demand the rescission of the adjudication to his mother generally and also in the absence of an allegation of a previous tender of the parties of the price admitted to have been paid; and she finally pleaded the prescription of four, five and ten years.

In k.eepiug with the irregular but prevailing practice which we recently took occasion to discountenance, the district judge referred all these exceptions to the merits, when the ends of justice required a decision of several of them at least in limine. A. A. Farmer vs. W. C. Hafley, 38 Ann. (not yet reported.)

Por answer, the defendant denied any indebtedness to plaintiff, averring specially that, owing to the value of the slaves included in the ■adj udication, and to the debts of the community which she had paid, •she was fully discharged in law for the entire purchase price of the community property and for her usufruct thereof.

The judgment below was mainly in favor of plaintiff, but it rejected his prayer for recognition of a legal mortgage. The trial' judge found "the sum of $16,li4 28 due to plaintiff as his share in the community property subjected to the usufruct of the surviving widow, but he allowed her the privilege, by further accounting within a reasonable time, to reduce the balance thus found against her.

The defendant appeals, and plaintiff moves for an amendment of the judgment so as to finally adjust the specific amount due him, without any further accounting by the widow in usufruct, and to obtain recognition of his legal mortgage.

After this unavoidably long statement of the very complicated pleadings and of the complex judgment which we are called to review, we now reach the examination of the merits of the controversy.

1st. A demand for the purchase price of property, which is in the nature of a suit for specific performance of a contract of sale, is certainly inconsistent with a prayer for the rescission of that very sale. Hence, the lower court was in error in refusing to compel plaintiff to •elect under the first exception urged by the defendant.

But as an end must be reached in this apparently interminable litigation, we shall not correct this error by remanding the cause. '

In her second exception, defendant puts directly at issue the right of plaintiff to sue for the rescission of the sale under any circumstances; and under that exception we have the means of setting that question at rest, and of thus eliminating it from further consideration in the progress of the cause.

From the record it appears that the purchase of the community property in this case did not result from an adjudication of the same to the widow at the price of estimation on the recommendation of a family meeting, under the provisions of Article 34S of the Civil Code, but that it was operated by means of a public sale by the sheriff, ordered by the court at the instance of the surviving widow and testamentary executrix, in order to pay the debts of the succession and community, at which sale the widow was empowered to purchase under the provisions of Article 1146 of the Code.

Under the effect of such a sale, the balance of the purchase price which accrued to her children after the payment of the community debts, which the purchasing widow has the right to retain in her hands, -does not legally represent any portion of the purchase price, and is not retained by lier as purchaser, but it passes into, her hands as funds-belonging to her children, of which she has the legal usufruct. In such a transaction she deals in a double capacity; as a purchaser she pays-to herself as usufructuary the shares of the purchase price accruing toller children. Hence, she ceases to be a debtor for the purchase price,, but under her rights of usufruct she becomes a debtor to her children, for the shares accruing to them, to be accounted for at the termination of the usufruct. 24 Ann. 79, Gaiennié vs. Gaiennié.

It is therefore clear that her children are not her creditors as vendors, and that she is not their debtor as vendee; hence, they are not in a condition to sue for a rescission of the sale. Wade vs. Murray, 35 Ann. 546.

We therefore conclude that the exception to plaintiff’s right to claim the rescission, was well taken, and hence that part of his demand is fully disposed of.

We now take up the plea of res adjudieata, which rests on our judgment in the case reported in the 37th Annual of our reports, p. 221.

It is true, as argued by defendant, that the cause of action in the present case, and in that suit, arises from the same transaction: the purchase of the community property by the surviving wife; but the nature-of the demand is not the same in the two cases. In the former case the-contest was for an account of tutorship, and we rejected plaintiff’s demand for such an account on the ground that his right thereto was-barred by the prescription of four years; holding at the same time that certain judgments purporting to establish the amount of the widow’s liability to her children growing out of her purchase of the community property, and whicn had been set up as means of interrupting prescription, were not moneyed or executory judgments having the effect of the thing adjudged between the parties, but as affording merely pirima facieproof of indebtedness by the tutor to his ward.

In the present case we are called on to enforce the alleged rights of1 pdaintiff to an account from his mother for lier usufruct of his property,, consisting of his share in the proceeds of the sale of the community property purchased by her, on the ground that the usufruct was terminated by her second marriage in October, 1881.

It therefore appears that our judgment in that case does not affect-the rights which pdaintiff seeks to enforce in the present case, and hence the plea of res adjudieata cannot be maintained in its entire scope.

It is good, however, as to the nature and effect of the various judgments relied on by plaintiff in both cases as the legal foundation determining the precise amount due to him by his mother, on account of her tutorship in the former suit and on account of her usufruct in the present litigation. We shall therefore treat them here as we did there, as prima facie proofs of the liability which they purported to establish— and shall use them as the basis of the settlement which we propose to make between the parties in this controversy.

We now reach the plea of prescription of four, five and ten years.

Having already distinguished the issue in this case from the demand for an account of tutorship, it follows that the prescription of four years, which under the law is a bar to the action of minors against their tutors for the acts of tutorship, does not apply to the action for an account of usufruct. C. C. Art. 362; 37 Ann. 223, Cochran vs. Violet; Bedell vs. Calder, 37 Ann. 805.

Our Code does not in terms fix the kind of prescription which can be invoked in bar of the demand for an account from the usufructuary of the property or things which he has held in usufruct. Hence, we have no settled lights to guide us as to which of the five or ten years prescription would apply in such cases. But a mature consideration of the articles of the Code on the subject has led us to the conclusion that such an action is a personal action, not enumerated in any of the artiticles treating of the prescription of either one, three or five years, and that it must be governed by Article 3544 of the Code, which reads: In general, all personal actions, except these before enumerated, are prescribed by ten years.”

Tlie next inquiry must be directed to ascertain the time at which prescription begins to run. It is clear that it cannot run against minors; hence, under that principle, it did not begin to run before the 23d of October, 1875, at which time plaintiff became of age, and this suit was. brought on the 4th of April, 1885, therefore within the ten years.

But in actions for account of the usufruct, the correct rule is to date-prescription from the time at which the right to demand an account accrued, and in logic and reason, as well as in law, that right accrues-only at the termination of the usufruct, just as clearly as prescription on a promissory note must be computed only from the date of its maturity, and not from the date of its execution. No one can be debarred by prescription from the exercise of any right, to be computed from a time at which the right did not exist. The doctrine of “non contra valentem,” etc., most unequivocally applies to such actions. 36 Ann. 412, McKnight vs. Calhoun; 32 Ann. 1041, Succession of S. M. Farmer.

Defendant contracted her second marriage on the 15th of October, 1881, at which time her usufruct expired, and that is the date from which prescription must be computed against plaintiff’s demand for an account of the usufruct of Ms mother. Conceding, therefore, that the prescription of five years could apply in such a case, it is apparent that the plea is not good, as this suit was brought in April, 1885.

Having recognized the right of plaintiff to recover judgment for so much of his funds as had been subject to his mothér’s usufruct, we must, now establish the state of her accounts with him.

But before entering into the facts, we must meet two legal questions which wc find at the threshold of the investigation.

1st. The right granted by the judgment to the defendant to present an additional account of the matters connected with her usufruct, is, in our opinion, not sanctioned bylaw, and hence it must be denied.

Even in giving full effect to the prayer in plaintiff’s petition for an ■account of defendant’s administration of his share of the proceeds of which she had the usufruct, we find that she was allowed every opportunity on the trial of the case to give such an account, and that she did present all the elements within her reach toward a full accounting. Even-handed justice to all parties requires that the accounts should now be finally balanced, and we therefore conclude that this feature of the judgment below is erroneous.

2d. Can the defendant be allowed to deduct from the gross proceeds of the sale of the community property the estimated value of the slaves which then formed part thereof?

Without entering into a discussion of the alleged nullity of obligations contracted for the purchase price of slaves, by reason of their subsequent emancipation, we find in the record other and abundant reasons to defeat defendant’s proposition on that score. We showed in another part of this opinion that under the operation of law, the surviving widow, being entitled to retain in her hands all that accrued out of the sale and to her children, is legally held as having, as purchaser, fully complied with her bid, and to be therefore and thereby •entirely discharged from all her obligations as a vendee; and that her indebtedness, if any, to her children, after paying the community debts, ■arose from a new obligation, the relation of usufructuary, it follows that she cannot be heard now to urge any defense in mitigation of her obligations under the purchase. She has in law paid for the slaves which she bought at that sale; the debt which she now owes does not arise out of her purchase, but out of her usufruct. Hence, she cannot he allowed the credit of $76,000 which she sets up as the estimated value ■of the slaves included in her purchase of the 9th of April, 1860. That rule is as just as it is inflexible. On the qirestion of plaintiff’s demand for a rescission of the sale, it defeated him because he was not a vendor seeking to enforce claims against Ms vendee. On this point, and for the same reasons, it must shield him against the pretensions of the ■defendant, who now erroneously assumes the attitude of a vendee.

The judgment invoked by plaintiff as settling the amount of his mother’s indebtedness to him, shows that the amount of the adjudication was $156,470, and that up to that date (1867) she had paid community debts up to the sum of $59,783.25, leaving abalance of $96,687, •of which he claims one-tliird of one-half, say $16,114. * * *

But in the course of the trial, defendant established her right to additional credits wMch must be allowed her, and which are not seriously -controverted.

She is entitled to be credited for the sum of $20,000, as a donation from her mother, which sum was used in paying part of the purchase price of the plantation by her first husband; and to the further credit of $20,000, amount of a debt of the community which she paid; and for an additional sum of $6,000, paid by her on what is known in the .account as the “Dunbar mortgage.”

She claims $10,000 for that item; it urns the amount of the debt, but ■she compromised it for $6,000; she paid nothing more, she can claim nothing more.

In her answer she claims to have paid four notes of $17,500 each, or $70,000, secured by vendor’s privilege on the plantation which was •adjudicated to her at the succession sale. She has credit for two of the notes in the judgment of 1867, as included in the credit of $59,783.25, and from her own testimony it appears that she has thiis far paid $20,-i000 on the two other notes, for which we have already allowed her -credit.

This leaves to her debit the sum of $50,686.75, one-sixth of which accrues to plaintiff, thus entitling him to a judgment against her in the sum of $8,447.75.

The next and last question is to ascertain whether he is entitled to fhe recognition of a legal mortgage to secure that balance.

His counsél bases Ms right thereto on the provisions of Article 343 of the Civil Code, which regulates the mode of effecting, and the legal mortgage resulting from, the adjudication of the community property in which minors have an interest, to the surviving father or mother, and on Article 3317, which recognizes the same mortgage created by the other article. . .

But from the recitals already made in this opinion, it appears’ that the sale in tMs case was not made under the provisions of Article 343 -of the Civil Code, but under the provisions of Articles 990,991 and 992 of the Code of Practice, touching authorized sales of 'succession property to pay debts.

There is a vast difference between the mode of making and the effects-of such sales.

From the very nature of the sale made under Article 348, there can-be no confetition and no bids; no other person but the surviving father • or mother can there become an adjudicatee; and hence, the effects of that sale are peculiar, and are specially provided for by the law; and' one of those effects is that “the property so adjudicated shall remain specially mortgaged for the security of the payment of the price of the • adjudication and the interest thereon.”

Now, no such mortgage is, or could be, created by law, as resulting-from an adjudication under a sale to pay debts. One of the very objects of that sale is to release, instead of creating, mortgages. At such a sale, which is made at public auction, competition is of the very essence of the proceeding, and any person, be it the surviving father or mother, or anybody else, making the highest bid, can become the purchaser.. If it be a stranger, the property goes to his hands free of all encumbrances on his paying the price, and the proceeds go into the hands of '• the succession representative. If the surviving father or mother is the purchaser, and is also the succession representative, the payment is made by operation of law, as twice explained herein above; and no. mortgage is provided for concerning the payment of the price.. If the surviving parent is the tutor of the minors, the latter have a legal mort- - gage on the former’s property on account of the tutorship, but not on-account of the usufruct, which is regulated by other and different laws.'. Gaiennié vs. Gaiennié, 24 Ann. 79.

Our laws on the subject of usufructs do not provide for a mortgage on the property of the usufructuary in favor 'of the owner of the things,, money or other property subject to the usufruct. Hence, courts are-powerless, to recognize or enforce any.

A bond is the only security which the law exacts of the usufructuary, and the father and mother are relieved even from that obligation. C. C. Art. 560.

Plaintiff’s claim of a legal mortgage must therefore be rejected.

We note that the judgment below is silent on the subject of interest.. Plaintiff is entitled to legal interest from the termination of the usufruct, and under his prayer for amendment he asks for and he must be allowed the same. '

It is therefore ordered, adjudged and decreed that the judgment: appealed from be amended in the following particulars:

1st. In allowing the right to defendant' to further reduce plaintiff’s •claim by further accounting, which right is hereby denied, so as to make the judgment herein absolute and final.

2d. By allowing plaintiff legal interest on his claim from the 15th •of October, 1881.

3d. By reducing plaintiff’s claim and fixing it at the sum of $8,447.75 (eight thousand four hundred and forty-seven dollars and seventy-five ■cents).

And that, as thus amended, said judgment be affirmed, at the costs of defendants in both courts.


author: Todd, J.

text:
    No. 9480.
    The State ex rel. E. A. Luminais vs. J. D. Houston, Tax Collector.
    TXhe State Tax Collector cannot be compelled by a mandamus to receive from a purchaser of land forfeited to the State, and again offered for sale in payment of the price bid, where • the property is burdened with back taxes due the State and city, three per cent Louisiana bonds, known as “Baby Bonds,” though che purchaser has paid the amount owing for costs, fees, commissions, etc., in cash.
    A PPBAL from the Civil District Court for the Parish of Orleans. .XjL Lazarus, J.

      23, L. Bemiss for the Relator and Appellant.

      W. H. Rogers, City Attorney, and Blanc & Butler for Defendant and .Appellee.
   The opinion of the Court was delivered by

Todd, J.

The relator became the purchaser of certain property in the city of New Orleans, described in the petition, which had been forfeited to the State for non-paymeut of taxes and sold again under Act 82 of 1884, and adjudicated to the relator for $2550.

The amount of charges, fees, costs, etc, aggregating $175, was paid :in cash, and for the balance ($2375) he tendered in payment Louisiana -3 per cent bonds, commonly known as “Baby Bonds,” wliich tender was refused, and thereupon a mandamus was applied tor to compel the officer to receive said bonds in satisfaction of said balance, which is the proceeding now before ns.

The tax collector and the city of New Qrleans, also made party, for .return to the alternative writ, answered that the said balance of the .relator’s bid could not be entirely paid in “Baby Bonds,” hut must be 3>aid in cash or in such State and city obligations as would enable tho tax collector to make a distribution of tlie adjudication proportionately between the State and city, according to the amount of their respective claims against the property, that is, a portion of the sum derived from the sale going to the General Fund might be «paid in “Baby Bonds,” or in valid outstanding Auditor’s warrants; the portion due tlie “Interest Fund” in matured coupons of interests; the portion due-the “Levee Fund” in warrants of the levee company.

The relator relies on the 2d section of Act 82 of 1884 to support his contention.

The main object of this act, as we gather from-its title, was “to pro-T vide for the sale of property bid in for and adjudicated to the State, and of property on which taxes are due the State prior to December 31, 1879.”

This section (2) reads:

“That said property shall be adjudicated and sold to the last and highest bidder for cash. All bids may be paid in any lawful money of the United States, or in any warrant, bond or other obligation which, by the laws and Constitution of the State, is made receivable for taxes- and licenses due the State prior to January 1, 1879, except the costs, incurred in adjudications to the State and in sales under this act, and the commissions and fees established by this act, which shall be paid by preference and in current money.”

This section quoted must be considered in connection with article 1 of the miscellaneous ordinances of the Constitutional Convention which explains its meaning. ‘ ■ ■

The first paragraph of that article provides “that taxes and licenses due the State prior to January 1, 1879, shall be paid as follows: That-portion of said taxes and licenses due the General Fund, except ashefeinafter provided, in any valid Auditor’s warrants, outstanding at the date of the adoption of this Constitution,” except certain warrants-mentioned and not necessary here to enumerate..

It next provides that the holders of said warr'ents may fund them in the bonds above referred to, known as stated, as “Baby Bonds,” and further provides that these bonds shall be receivable for amounts due the State for the redemption or purchase of property which has been-forfeited or sold to the State for delinquent taxes and licenses of any of the years named in the article;

The second clause of the same article further provides that the portion of said taxes and licenses due, tlie Interest Fund subsequent to 1874, may be paid in any matured interest coupons issued by the State since said date; and the third paragraph of the article directs that the. portion of said taxes due the Levee Fund from 1871 to 1876 inclusive, can be paid in any valid warrants issued by the levee company and indorsed by the Auditor and Treasurer in the manner therein prescribed.

In the last paragraph of the article it is directed that all taxes and licenses due any parish or municipal coiporation prior to January 1, 1879, can be paid in valid warrants, scrip or floating indebtedness of said parish or municipal corporation, except judgments.

It is apparent from a reading of this ordinance and a critical examination of its several provisions that all of the then back taxes which, under the law, pertained to the General Fund might be paid by the obligations of the State described in the first clause of the article above recited and subsequently represented by “Baby Bonds,” but that the portions of said taxes legally appropriated to the Interest Fund and the Levee Fund, and the city taxes could not be paid by these bonds, whether these taxes were collected directly from the defaulting taxpayers or derived from the sales of lands previously forfeited to the State or otherwise. The second section of Act 81 of 1881, so far it may be construed as conflicting with these constitutional requirements, of course would be without force or legal effect.

The record shows that the larger portion of the back taxes against the property in question, was due the city, and the contention of the relator is that these city taxes even could be paid in “Baby Bonds.” The fifth section of the act referred to (82 of 1884) reads:

“If the price paid for said property is not sufficient to pay in full all costs and charges herein set forth, and the taxes due prior to December 31, 1879, with interest, costs and charges thereon due by said property, then the price, after the payment of the costs and charges herein provided to be paid first, shall be divided and distributed proportionately to the payment of all unpaid State, city, parish or municipal taxes, interest, costs and charges due on or by the property prior to December 31,1869.”

It strikes us as a strange proposition that the taxes and licenses due the city could be paid by these bonds, which, as shown, represent exclusively a debt owing to the State, and particularly, in view of the clause in the constitutional ordinance quoted, requiring them to be paid in the obligations of the city.

The proposition has no support whatever in the law.

From no point of view can we discover that the relator is entitled to the relief he asks at our hands.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9697.
    The State of Louisiana vs. Joe Tucker.
    "When a bill of exceptions recites the facts which the counsel had contended before the jury, bad been established by the evidence, and refers to the evidence in support thereof, and asks for charges applicable to the state of facts recited, the judge’s refusal to give the charges on the ground that they are inapplicable to the case, is error, unless the judge states that there was no evidence in the case supporting or tending to support the contentions of counsel..
    It is the duty of the judge to give full instructions to the jury covering the entire law of the case as respects all the facts proved or olaimed by counsel to be proved, provided such claim, is supported by any evidence.
    Authorities reviewed and criticised.
    The functions of the judge in such case, is different from that involved in rulings on admissibility of testimony, when he is entitled to weigh the testimony as to jnoof of necessary foundation, as a matter involving the exercise of his own discretion.
    APPEAL from the Third District Court, Parish of Union. Young, J.

      M. J. Cunningham, Attorney General, andJ®. R. MeClendon, District Attorney, for the State, Appellee.
    <?. A. Killgore and Jas. A. Ramsey for Defendant and Appellant.
   The ojúnion of the Court was delivered by

Fenner, J.

The errors charged are presented on two bills of exceptions.

As the first bill raises important principles of practice dependent in great measure upon its recitals, we shall transcribe it in full, notwith standing its length.

“Beit remembered that, upon the trial of the above entitled case during the argument, defendant’s counsel contended before the jury that it had been ptroved on the trial by the testimony of the witness Alex. Bryant, who was the injured party, that he, the said witness Bryant, saw defendant armed with a gun in his (Bryant’s) yard near his dwelling house, in the night timo, before anj>- of the older members of his family had gone to bed, and that lie, the said Bryant, saw the defendant approach the house aud come close to it three different times, and at one of those times the defendant come up to the door of the house and placed his hand against it, but made no effort to open it, and at eaeh^time the defendant went away without making any effort to break into the house or do any violence to any one; and that on the defendant approaching the house the fourth time, still having his gun in his hand, and that the said witness, Bryant, without saying anything whatever to the defendant, fired upon him, striking him with, several shot, some buck shot and some small shot, and that at the firing •of the gun, by Bryant, the defendant cried out “Oh! hordie,” and immediately began to run away toward lii.s (defendant’s)' house without making any effort at that time to return tire fire or shoot at said Bryant; that soon after the defendant began to retreat, the said Bryant began to follow him up, and fire upon Mm ; that the effect o^ the shot received by the defendant disabled him so that he could not travel without something to support him; that the witness Bryant and •his wife both followed up defendant, and fired upon him and that at or .about the third time, the witness Bryant shot at defendant, and .at or about the first time his vrife had shot at defendant, defendant having retreated about thirty yards away and got behind some bee-.gums, the defendant fired upon tiie witness Bryant, who was then nine steps from him and still approaching the defendant, the shot from defendant’s gun taking effect in the witness Bryant’s thigh and hip; and that at the moment defendant’s gun fired, the said witness Bryant fell and the defendant then hobbled away leaning on his double-barrelled gun for a support as he went. Both of defendant’s counsel contended before the jury that all of the above facts had been proved by the State’s witnesses before the jury, and after the judge liad charged the .jury and when he asked defendant’s counsel if they had any special charge, the defendant asked the court to charge the jury as follows, to wit :

1st. “A man has'no right, under the law, to violently assault and shoot at another simply because he has found the other upon his premises in the night time.”

2d. “A man has a right to order another to leave his house or premises, but has no right, even when such order is given, to put him out by force until gentler means fail, and if the owner attempts to use violence in the outset and is slain, it will not be murder in the slayer if there be no previous malice.”

3d. “A man has a right to drive a party away from his premises ■who is there without his authority, and if the intruder should start .away immediately in good faith, the owner would have no right to follow him up ; but if he should follow him up, and while still retreating in good faith, it should become absolutely necessary for him to fell his pursuer, in order to save his own life, he is justifiable.”

And the court refused to give each and every one of said special •charges to the jury, stating at the time and in the presence and hearing of the jury that they, tbe special charges, were not .applicable to-the facts of the case, and for that reason he refused to give them in charge to the jury; and the defendant, by counsel, retained a bill of exception both to the ruling of the court in refusing to give said special charge in charge to the jury and also to his statement in the presence and hearing of the jury that the said charges were not applicable to the facts of the case, and defendant tenders this, his bill of' exception, to be signed by the judge and filed in the case which is accordingly done.

I did not give the first charge, because I did not deem it at all applicable to the facts. I refused to give the third charge for the same-reason ; and I refused to give the second because as too erroneously stated if applicable, and as not applicable. I do not assent by any, means to the facts as recollected by counsel, as stated above.

Signed in open court, this February 12th, 1886.

It will be observed that the bill raises two objections to the action» of the judge, viz:

1st. In stating in the presence of the jury, that the charges were not-applicable to the facts of the case, which is complained of as an expression of the judge’s opinion as to what the facts were.

2d. To the ruling itself and the ground thereof.

As to the first, it not appearing from the bill, that the charges themselves were read in the hearing of the jury, the statement of the judge that they were not applicable was, so far as the jury was concerned, entirely insignificant.

The second objection, however, is very serious.

The bill is carefully drawn. It recites with precision and distinctness, tlie facts which, the counsel contend before the jury, had been established by the evidence.

If the facts were as recited in the bill, or if there was evidence in the: case supporting or tending to support the contentions of counsel, it is-obvious that the charges asked were not inapplicable to the case.

The bill is drawn in accordance with the suggestions made by this-Court in Stouderman’s case, 6 Ann. 286, where it was said:

“The charge required might not have had a precise application to the case. It was the duty of the counsel to have shown by his bill of' exceptions that he asked for instructions to the jury that would have-had a material bearing on his case, and that he did not require the-judge to charge the jury upon abstract principles of law. * * * If; the counsel of the accused had distinctly stated the facts he contended the evidence had established, and then required the court to charge the-jury that if they believed those facts, etc., it would have been the duty of the judge to have instructed,” etc.

So it is held by other authorities that “it is the duty of the judge to-give full instructions to the jury, covering the entire law of the case, as respects all the facts proved or claimed by the respective counsel to-be proved,” and that though “if no evidence was given upon a point,, the judge is not under obligation to charge the jury respecting it,, though requested,” yet “as far as the evidence goes, he should give any pertinent instruction asked for, conformable to the law.” 1 Bishop Cr. Proc. $ 980, citing Hinch vs. State, 25 Ga. 699; Longnecker vs. State, 22 Ind. 247; State vs. McDonnell, 32 Vt. 491; McCay vs. State, 15 Ga., 205; Drake vs. Curtis, 1 Cush. 395; State vs. Wilson, 2 Scam. 225; Davis vs. State, 10 Ga. 101.

In Riculfi’s case, 35 Ann. 775, we said: “ In Stouderma-n’s case, it was-said to be the duty of the prisoner’s counsel to have shown by his bill, of exceptions that he asked for instructions to the jury that would have-had a material bearing on the case, and that he did not require the-court to charge upon abstract principles of law. * * * It is not possible for this Court to determine their applicability unless the bill of exceptions informs us of the circumstances to which the law is to be applied.”

In Daly’s case, 37 Ann. 576, we said: “The bill contains no averment'that proof had been made of the fact embodied in the proposed charge.. * * * Hence, under tire circumstances, the judge in giving the-charge as suggested would simply have instructed the jury .on an abstract principle of law.”

In Melton’s case, 37 Ann. 82, the judge’s refusal to give a charge because inapplicable was sustained, on the judge’s statement that “it. referred to.facts of which there was no evidence whatever.”

In Ford s case, 37 Ann. 464, it does not appear that the bills contained the necessary recitals, and the judge stated “that the principles announced in the respective charges are foreign to the nature of the case on trial, and have1 no application to or connection with the facts-which had been established by the evidence.”

Other cases touching on the point will be found to rest on- like foundations, and do not cover a case like the present.'

Here the bill recites the facts which the counsel contended had been established by the evidence and refers to the testimony supporting the-same, and asks for charges certainly applicable to such facts. It the-judge had distinctly negatived these statements and, as in Melton’s case, had stated that they were supported “by no evidence whatever,” wo should have been bound to take his statement against that of coun.sel, and to have sustained his ruling. But. his mere dictum, “ I do not assent by any means to the facts as recollected by counsel,” does not -assert or necessarily imply that there was no evidence supporting or tending to support the contentions of counsel so explicitly stated in the bill, and does' not, therefore, sustain his refusal to give the charges on the ground of inapplicability. In this matter it was not the function ■of the judge to pass upon the weight or value of the evidence which had gone to the jury and was subject to their exclusive cognizance.

There is a class of cases to which a different rule applies, viz: those involving rulings of the judge, in the course of the trial, upon the admissibility of evidence, such as whether the proper foundation had been .laid for evidence of character, threats, etc. In such cases, it is the necessary function of the judge, for the guidance of his own action in a matter addressed exclusively to his own discretion, to determine whether the foundation has been laid, and, for that purpose, to consider and weigh the evidence in support thereof. Hence, we have held that, as the foundation must rest on jproof of the antecedent conditions required, it is in the sound discretion of the judge to determine whether such proof has been made. State vs. Labuzan, 37 Ann. 491; State vs. Janvier, Id. 645; State vs. Ford, Id. 461.

But when the evidence is closed and the.case has gone to the jury, it Is the latter’s exclusive province to consider all evidence before it, and .to determine its weight and credibility; and it is the judge’s duty to ■charge the law applicable to any state of facts supported by evidence, whether he believes or attaches'value to such evidence or not.

Neither the judge nor the counsel fqr the State question the correctness, in point of law, of the first and third charges asked, and the judge should have given them. ■ •

The second charge is taken verbatim from the text of Wharton, and is supported by authorities. Wharton Cr. L. sec. 1025, citing McCoy vs. State, 3 Eng. 451; State vs. Sloan, 47 Mo. 604; Greschia vs. State, 53 Ill. 295.

It may be-remarked that all three of the charges would suffer modification in their application to felonious assaults or intrusions on premises; but their terms exclude such application and, as asked and as referring to the facts stated in the bill, there is no sound objection to them.

The second bill of exceptions is as follows:

“Be it remembered that, upon the trial of the above entitled case,, after the court had charged the jury, lie asked the district attorney if' he had any special charge which he desired given ; and the district attorney requested the court to charge the jury as follows, to wit:: ‘That ho who provokes a difficulty cannot avail himself of the plea of' self-defense as a justification for shooting the person whom he has provoked into the difficultj-.’ And the court gave said special charge as-requested, and the counsel for the defendant excepted to that special charge as given by the judge and retained this his bill of exception. .Then counsel for defendant asked the court to charge the jury as follows, to wit: ‘That when two parties have had a difficulty, if one of' them quits the combat and retreats in good faith and is pursued by the other, who continues to follow him up with violence-and hostility, and should it become absolutely necessary for the one retreating to turn and fell his pursuer in order to save his own life, he is justifiable whether he was the aggressor in the beginning of the difficulty or not.’’ And the court refused to give said special charge in charge to the jury and stated as a reason therefor, in the presence and -hearing of tlie jury, that the special charge was not applicable to the-facts proven in the case, and defendant, by counsel, excepted both to the ruling of the court refusing to give said special charge and to his stating in the presence and hearing of the jury that the special charge was not applicable to the facts in the case; and defendant tenders this, his bill of' exception, to be signed by the judge after giving his reasons for said ruling.”

The charge asked for by defendant as above stated, was read by the-counsel in the presence of the jury, and in giving the only reason which could be given, I stated it was not applicable, as in my opinion-it clearly was not, although proper when the facts justified it. The charge asked for by the district attorney and given as excepted to-above, I believed applicable to the facts as given. In refusing the charge requested by defendant’s counsel I abstained from commenting on the facts or even alluding to them except that the charge requested was not applicable.”

We think there is no ground for plaintiff’s complaint that the judge-stated the reason of his ruling in presence of the jury. If counsel saw fit to read his requested charge in presence of the jury and to ask the judge’s ruling thereon, he cannot complain that if was then and there given.

If this bill stood by itself, containing no recitals of facts or contentions, the judge's refusal on the ground that the charge asked was inapplicable would not be reviewed, by us.

But, as the case must be remanded, we would state that the charge asked by defendant is correct and is a proper exception to, and qualirficaticn of, tho correct general principle embodied in the special charge 'before given on request of the district attorney.

We would say, in conclusion, that tho learned judge lias, no doubt, been misled in this mutter by some too general dieta contained in opinions of this Court. But we feel bound to avail ourselves of the ■opportunity to restrain their application within proper limits.

It is, therefore, ordered that, the verdict and sentence appealed from be annulled and set aside, and that the case be remanded for further .proceedings according to law.

Bermudez, C. J. and Pocho, J. concur in the decree.


author: Watkins, J. Pocná, J.

text:
    No. 9658.
    The State of Louisiana vs. Alexander Balize.
    1. Where, in country cases, appeals are taken before judgments are signed, they may be considered as taken nunc pro tunc. 12 Ann. 096, State vs. HcKeown.
    ‘2. Appeals prosecuted from judgments on forfeited bonds are treated as taken in “criminal matters” in tho sense of Act 30 of 3878. State vs. Cassidy, 7 Ami. 276; State vs. Williams, 37 Ann. 200.
    -3. When tho return day is fixed by tho court on its own motion and not at the suggestion of appellant’s counsel, though in. direct violation of Act 30 of 1878, the fault is not imputable to the appellant and he cannot be prejudiced thereby.
    4. An appearance bond taken by the sheriff, without an order of court admitting the accused to bail, or fixing the amount of bond is 6 Ann. 700, State vs. Lougineau ; 12 Ann. 224, Staters. Cravey; 12 Ann. 349, State vs. Smith; 10 Ann. 532. Stale vs. Gilbert.
    5. When the record enables the court to decide on tho merits, either party may, at any time, refer tho court to any error apparent on the face of the record, without making a formal assignment thereof.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. B. Beale, District Attorney, for the State, Appellee.

      G. W. BueJmer and Bouse & Grant for Defendant Appellant.
   ■ On Motion to Dismiss

The opinion of the Court was delivered by

Watkins, J.

This appeal is prosecuted from a judgment of forfeiture of an appearance bond, bearing date1' 30th of July, 1885; whereon “Alexander Balize as principal and Tim Duggan’ as -security -on'said bond, are adjudged to pay in solido tlie sum of one hundred dollars to the State.

In this Court a motion is made to dismiss the appeal upon the ground:

1st. That the appeal was taken before the judgment was signed.

2d. That it was not made returnable within ten days after the order of appeal was granted; and was not made returnable to this Court when it was then sitting, through the fault of the appellant.

1st. The record discloses that the judgment nisiwas rendered on "the 16th of June, 1885, forfeiting the bond; on the 8th of July following the order of appeal was granted in the following words, viz:

“In this case, on motion of defendant’s counsel, on forfeited bond, it was ordered by the court that defendant be allowed a suspensive appeal from the judgment of this court, by his furnishing a bond in an amount according to law, returnable before the honorable, the Supreme Court of the State of Louisiana, in New Orleans, on the second Monday of February, 1886.”

The judgment of forfeiture was signed on the 20th of July, 1885, and it is commenced with the words: “This case was this day called up and defendant, Alexander Balize, failing to appear and answer, etc.”

The minutes of the court, the order of appeal, and the judgment itself, fully demonstrated its error, and that the judgment was actually rendered on the 16th day of June, 1885, and during same term of court.

In State vs. McKeown, 12 Ann. 596, the Court said: “We are of opinion that this motion ought not to prevail. It is usual in the country to apply for an appeal before the judgment is signed. Tne appeal is considered as being takeu mine pro tune.” 23 Ann. 705; 15 Ann. 521; 25 Ann. 497.

We approve that ruling.

2d. It will appear from the minutes of the court above quoted that the appeal was not made returnable within ten days after the order of ■apj)eal was granted; and the question to be determined is whether :same was attributable to the appellant or not.

This is a criminal case in the sense of Act 30 of 1878. State vs. Cassidy, 7 Ann. 276; State vs. Williams, 37 Ann. 200.

In State vs. Jenkins, 36 Ann. 866, this Court said: “The return day fixed wa» in gross violation of Act 30 of 1878, which requires appeals in criminal cases to be made returnable within ten days after granting the order of appeal, whenever the Supreme Court may be in session on "the return day.”

“The error is unquestionably fatal to the appeal unless saved by the provisions of Act 53 of 1836, now section 360 of Revised Statutes, which provides in substance, that such error shall not occasion the dismissal of the appeal unless imputable to the fault of the appellant.”

In that case the counsel for the accused prepared and signed a written-motion of appeal, iu which was suggested the improper return day,, and the appeal was granted as prayed for in the motion.

It is the settled jurisprudence that when the appellant suggests an improper return day, and the judge granting the order of appeal, adopts-the appellant’s suggestion and fixes the return day accordingly, the error is attributable to the appellant, and the appeal will be dismissed. State vs. Jenkins, 36 Ann. 866; State ex rel. Lee & Co. vs. Allen Jumel, 35 Ann. 980, and cases therein cited; Wooten vs. LeBlanc, 32 Ann. 692.

We find in the brief of appellee’s counsel the suggestion that the sessions of this Court at Shreveport and Monroe have transpired since this appeal was granted, and that the appellant has ignored same.

In quite a similar case this Court held that, “an appellant should not bo prejudiced bjr an error committed by the judge in fixing the return day of appeal,” quoting with favor Chaffe vs Haynor, 31 Ann. 595.

In that case the Court said: “It is alleged herein that the defect is imputable to the appellant, because the motion is written by Ms attorney and the day is fixed therein, and the judge merely adopted the day thus fixed. An order of court, whether written by the attorney of one of the litigants, or by the clerk, is the act of the judge. s * * It was the judge who made the order of appeal, and who named an improper day for its return, and the appellant cannot be prejudiced by the act.

This record discloses no written motion of appeal prepared by the-counsel for the accused. The minutes of the court recite: “In this case, on motion of defendant’s counsel on forfeited bond, it was ordered' by the court that defendant be allowed suspensive appeal, etc.”

Clearly, it was the judge who made the order of appeal, and not the counsel of the accused who suggested it, and the motion to dismiss the-appeal is denied.

On the Merits.

We find in the transcript no bill of exceptions, and there has been no assignment of errors filed in this Court. The only grounds upon which the-appellant relies are stated in his counsel’s brief and they can only prevail if the defects complained of appear upon the face of the papers, and are in themselves sufficient in law to justify the reversal of the judgment. They are as follows, viz:

. 1st. There is a fatal variance between the charge contained in the information and that recited in the appearance bond forfeited.

2d. That the record does not show that the accused was released •under bond in pursuance of an order of the judge, and that said bond :is utterly void.

'There is no merit’ in the former objection as we find that the crime •denounced in the information is an assault on Anthony Scott “ by wilfully shooting at him,” and the crime recited in the appearance bond is tlie same — but tlie latter is more serious.

An appearance bond taken by tlie sheriff without an o\'der of court •admitting the accused to bail, or fixing the amount of the bond, is null. 6 Ann. 700, State vs. Lonzineau; 12 Ann. 224, State vs. Craig; 12 Ann. 349, State vs. Smith; 10 Ann. 532, State vs. Gilbert.

There is nothing in the record to show that the trial judge made any order admitting the accused to bail or fixing the amount of the appearance bond; and the certificate of clerk of the court a qua is to the •effect that the record contains “a full true and complete transcript * of all the proceedings had and of all the documents filed in the ■case,” etc.

It lias been frequently held by this Court, that when tlie record enables tills Court to decide on the merits, either party may, at any time, refer the court to any error apparent on the face of the record, without making a formal assignment. State vs. Bank of La., 5 N. S. 327; State vs. Bonder, 14 La. 368; Wood vs. Henderson, 2 Ann. 220; Hicstand vs. New Orleans, 14 Ann. 137; State vs. Henderson, 13 Ann. 489; Bossier vs. Carrodine, 18 Ann. 261.

This, counsel for the accused lias done, and the defect complained of is fatal, as it discloses the nullity of the bond forfeited.

It is, therefore, ordered, adjudged and decreed, that the judgment of ¡forfeiture appealed from be avoided, annulled and reversed, and that •■all costs he taxed against the plaintiff and appellee.

Dissenting Opinion.

Pocná, J.

In my opinion, the appeal in this case should- have been •dismissed, and in support of my conclusion, I submit these considerations : . ■ •

“The order of appeal reads as follows':

' “In this case, on motion of defendant’s counsel on forfeited bond, •it was ordered by the court that defendant be' allowed a suspensive -appeal from the judgment of this Court by his furnishing bond in an •amount according to taw.” * * * ......

The bond was furnished by the surety on the appearance bond alone and the point in contention is to ascertain who is the appellant in the case.

The accused is the only defendant in this case, or in the judgment of forfeiture; no construction founded on law could justify the conclusion or even the inference that the surety on the appearance bond is the-defendant in a criminal prosecution.

Hence, it follows that, the party who has furnished the appeal bond in this case, is not a party to the appeal.

His bond is, therefore, valueless as a factor in the appeal.

If the accused, who is the real and only defendant in the case, is-held up as the appellant before us, the position is not fortified because he has furnished no bond of appeal.

While it is true that appeals like the one under discussion fall under the jurisdiction of the Supreme- Court, as incidents to the main action; the criminal prosecution, when from the nature of the penalty attached to the offense charged, -the case is appealable, it is equally apparent that the accused, in an appeal from a judgment of forfeiture, is not entitled to the immunity from furnishing an appeal bond, resulting from the provisions of Act No. 30 of the General Assembly of 1878. State vs. Williams, 37 Ann. 200.

Under that legislation the immunity from furnishing an appeal bond applies exclusively to cases of appeal from a sentence, and it is too clear for argument that it cannot be extended to an appeal from a moneyed judgment.

This proposition is very ably and tersely stated in the brief Of appellant’s counsel, in an argument on another ground of dismissal urged by the Attorney General. Refening to Act No. 30 of 1878, they say:

“But the benefit and the restriction are both limited to persons-appealing from a sentence. That it does not apply to moneyed judgmets upon appearance bonds, is evident from the fact that it makes all-appeals from a sentence, whether imposing a fine or imprisonment,, suspensive without bond.’’

The condition of the present appeal is illustrated by the following-dilemma: If the defendant is the appellant, the appeal falls for want of an appeal bond; if the surety on the appearance bond prosecutes-the appeal, the latter falls for want of an order of appeal.

The appellant seeks relief under a technicality, and it was meet and proper that he should have been met with the same weapon.

I therefore dissent from the ruling which maintains his appeal, and. I take no part in the opinion and decree on the merits.

The Chief Justice concurs in this opinion.


text:
    No. 9578.
    N. B. Phelps vs. Abraham Reinach.
    An adjuclieatee may be compelled to comply with the terms oí a sale when the title tendered is such as he is bound to accept.
    Such adjudicateo cannot urge, as a defense, that the title offered him by the owner was-made to such owner by an agent whose procuration was, at the time, revoked by the notorious insanity and seclusion of the principal, unless the mental derangement was such as would have justified interdiction, and the purchaser was aware of the incapacity..
    Where the purchaser bought ifi good faith and paid a fair price, which enured to the benefit of the principal, and where the principal or his curator, after his interdiction, could not successfully claim the nullity of the transaction, or could not be made to take back the property, the sale will not be vitiated.
    A power of attorney is revoked by the interdiction of the principal, but continues in force until the judgment to that effect has been rendered. The mandate does not expire by the seclusion of the principal or his confinement for treatment in an insane asylum; but-it does by the reclusion.

    The word seclusion, found in Article 3027 R. C. 0., line 5th, should be read reclusion. It was introduced in the Code of 3825 by the compilers. In case of discrepancy between the French and English texts, the former prevails.

      Reclusion means incarceration under a sentence, to undergo an infamous punishment, carrying civil degradation, in a house of forced labor.

      Seclusion means a voluntary confinement, or retreat from social life.
    Ignorance of the revocation of a power of attorney will protect an innocent third party dealing in good faith -with the agent, as such.
    APPEAL from the Civil District Court for the Parish of Orleans. Fitjlitor, J.

      A. J. Mmphy for Plaintiff ami Appellant.

      JS. T. Florance for Defendant and Appellee.
   The opinion, of the Court was delivered by

Bermudez, C. J.

This is an action to compel compliance by defendant with an adjudication of real estate, made to him on February 14, 1885.

In justification of liis refusal, the defendant charges that plaintiff has no valid title to the property, because, at the date of his pretended purchase, March 8,-1884, his vendor was notoriously insane and actually incarcerated in an insaue asylum, to his knowledge and to that of liisagent, who officiated as such in the act of sale.

The evidence shows that on August 20,1870, E. F. Stockmeyer gave to Carl Stockmeyer his general and special power of attorney, couched! in terms broad enough to sell and to cover almost every business transaction; that vested with this authority he caused the property in question to be offered for sale at public auction, and in furtherance of the adjudication made of it for $4,650, he, on the 8th of March, 1884, made-title thereto to N. B. Phelps; that the latter caused the same property-to be offered for sale at auction, and that on the 14th February, 1885, it was adjudicated to the defendant for $4,625.

The record also shows, as indisputable facts, that on February 20, 1884, E. F. Stockmeyer, suffering greatly from mental excitement, was¿ on the advice of a physician, placed in the Louisiana Retreat, an institution in which persons mentally debilitated are taken for treatment, and that there was hope then that the said Stpckmeyer would recover.

It also establishes that some seven months at least afterwards, proceedings were instituted and Ms interdiction pronounced 11th November, 1884.

The contention of the defendant is double: that E. F. Stockmeyer was notoriously insane and actually incarcerated, to the knowledge of Carl, his agent, and of Phelps, the plaintiff; that by his notorious insanity and subsequent interdiction, the agency was revoked and annulled.

I.

The law applicable to a case like this is found in Articles E. C. C. 402 and 1788 (3). The former provides:

“No act, anterior to the petition for the interdiction shall bo annulled, except where it shall be proved that the cause for such interdiction notoriously existed at the time when the acts, the validity of which is contested, were made or done; or that the party who contracted with the interdicted, person could not have been deceived as to the situation of his mind.

“Notoriously, in this article, means that the cause of interdiction was .generally, known by the persons who saw and conversed with the party.”

The latter article provides:

(2) “As to contracts, made prior to the application for the interdiction, they can oiily be invalidated by proving the incapacity to have .•existed at the time the contracts were made.

(3) “ But, in order to prevent imposition, it is not enough to make "the proof mentioned in the last rule; it must also be shown that the .person interdicted was known by those who generally saw and conversed with him, to be in a state of mental derangement, or that the person who contracted with him, from that or other circumstances, was .acquainted with his incapacity.”

In the case of Teresa Baumgarden, curatrix, vs. Langles, which was .a suit to annul a sale on the grounds of notorious insanity at the date of the sale, and of fraud on the part of a knowing.purchaser buying at .-a price much less than the value of the thing sold, the validity of the transaction was recognized and the purchaser quieted, although the vendor was interdicted in the fifth month after the sale.

After reviewing the law and the jurisprudence on the subject, this •Court said:

The question now in hand is, not whether Baumgarden was, to a certain extent, mentally and physically weakened by disease, but whether he was so affected to a degree rendering him incapable of validly consenting to a contract and so a fit subject for interdiction. * *

“We fully recognize the fact that a person may be mentally and physically weakened by disease without being legally incapacitated to contract, and the law extends its sheltering arms over such person to the extent of scrutinizing contracts made by them and protecting them from imposition, undue influence, improper advantage, and other fraudulent conduct by persons dealing with them.” 12 Ann. 624, 652.

The Court found that a proceeding for the interdiction of Baumgarden, based on the evidence in the record as to his mental and physical condition and as to his actions and conduct prior to the date of the sale, must necessarily have failed, and held that, as there was no. concealment, no misrepresentation, no threats, no improper influence, no advantage taken; as the transaction was based on a give or take offer, and was conducted openly and with the knowledge of his wife and friends, and finally executed under the supervision of his selected friend and lawyer — the sale could not be invalidated.

In the present controversy it cannot be claimed, without successful contradiction, that on March 8, 1884, E. F. Stockmeyer was a fit subject for interdiction; that his mental condition was such that he could have entered into no valid contract; that he was notoriously insane, and that Phelps knew of his condition and incapacity.

The evidence shows that it was only some eighteen days before the sale was executed that E. F. Stockmeyer was confined; that Phelps never knew him or saw him, never had any dealing with him; that he did not even inquire or ascertain whether he was purchasing from a principal or an agent.

It is also to the effect that what he was suffering from was not habitual or general insanity, but merely a mental excitement thought to be temporary, which made him, wdthout cause, judge harshly of himself and feel so melancholia that he would engage in conversation with no-one.

The most important testimony in the record is that of Carl Stockmeyer, produced by defendant, who says that when E. F. Stockmeyer was sent to the Retreat, no one considered him insane, not even the physician, for up to then he was rational; that it was he who had instructed the sale; that he knew that the property was to be sold. He further states that the proceeds were placed to his credit and went to his use and benefit.

The witness also says the condition of his mind was known among his friends.

It is an important feature in this case that the price paid by Phelps was $4,650, while the amount of adjudication to the defendant Reinach was $4,625, the difference between the two being $25.

In the case of Holland vs. Miller, 12 Ann. 624, the then Court well said:

“Contracts would rest on a very weak foundation if those of the most solemn character could be avoided on allegations of insanity when the proof is contradictory.

“It would be necessary for contracting parties, before the execution of the contract, to inquire into their mutual mental soundness.”

It is striking that the fact of the knowledge of the alleged insanity was deemed of vital importance by the defense, for it is formally set forth in strong terms as a foundation for resistance.

It is to be noticed that there is no charge and no proof that any undue advantage was taken, or fraud practiced, detrimental to the "vendor, and that to the reverse it is proved that the price was paid to the agent and enured to the benefit of the principal.

It must also be noted that the sale was made between the second and •the third week’following the confinement of the patient lor care and ■attendance in the Louisiana Retreat.

In the absence of proof of the knowledge charged and of undue .advantage, or of injury, and in the presence of good faith on the part ■of the purchaser at least, and that the price went to the benefit of the vendor, how can the sale be invalidated?

II.

Counsel for defendant urged in the answer that the notorious insanity and subsequent interdiction of E. P. Stockmeyer revoked and annulled the agency to Carl Stockmeyer; but in his argument he presses that the change in the condition and the seclusion of the same person has produced the same effect.

There can be no doubt that, if the mental derangement of E. P. Stockmeyer had been such as to incapacitate him from contracting and to annul contracts made by him, it would have set at nought the sale to Phelps had he been personally a factor in its transaction; but surely •as 3ns mental condition was not such, it cannot be claimed that it brought to an end the power of attorney given to Carl.

There can be no dispute, that the interdiction produced that effect; ■but of what relief can this fact be, touching the sale made by the agent between seven and eight months previous! If the judgment of interdiction revoked, as it did, the procuration, this revocation took place only on the 13th of October, 1884, when the petition was filed, for the judgment retroacts, the power of attorney however continuing in force until then, therefore protecting the sale of March 8th, previous.

The “change in condition” invoked does not apply to a case like ‘the present one. It would to that of a woman contracting marriage; to that of an agent becoming the curator of an interdicted principal; ’to that of an executor removed from office, etc. It does, however, if reference is made io the change operated by the interdiction; but, as said, this could not affect the sale of March 8th.

It cannot be insisted that the power was revoked by the simple fact of the seclusion, or confinement, of E. F. Stockmeyer in the Louisiana Retreat.

The word is found in Article 3027 R. C. 0., and is a literal transcription from Article 2996 of the Code of 1825.

By reference to that Code, French text, it will be perceived that the word used is not seclusion, but reclusion.

It was not inserted in the Code of 1808; but was added to that of 1825, by the compilers, as appears from the “Travaux prépamtoires."

It is not found in the Napoleon Code, but Article 2003, which enumerates the causes for which a power of attorney is revoked, states that the procuration expires * * * by the death, natural or civil, * * * of the agent or principal. Civil death no longer exists in France'. Laurent, vol. 28, p. 87, § 80.

The two words seclusion and reclusion have quite different meaning.

The former signifies a voluntary, the latter an involuntary, confine.ment.

Seclusion is a legal word, a technical expression, to which a legal signification or meaning attaches.

Legislation, jurisprudence and commentators accord, in expounding it, as being: A temporary afflictive and infamous punishment, consisting in being confined, in a hard labor institution and carrying civil degradation. Rep. Journal du Palais, vo. Reclusion, vol. II, p. 83.

It is well settled, that when there exists a discrepancy between the ■.English and French texts of the Code of 1825, the latter prevails.

Under that rule, the word seclusion found in Article 3027 R. C. C., 5th line, should therefore be read reclusion.

It is, consequently, impossible to conclude that the power of attorney' was revoked by the seclusion of E. F. Stockmeyer.

It is’ a significant circumstance that Carl Stockmeyer, who was the-agent and who has since become the curator of E. F. Stockmeyer, has testified establishing all the material facts required to affirm the sale to Phelps.

A critical examination of his testimony shows that whatever the knowledge be which he had of the condition of the mind of his principal, ho never supposed that the mental excitement from which lie-was suffering could operate, or had operated a revocation of his powers, and that he continued to exercise them in his dealing with one whowras like him, and more than he, in perfect good faith.

The law in such a case wisely provides, that if the attorney, in ignorance of,the cessation of the rights of his principal, continue under his-power, the transactions done by him are valid and must be carried out in favor of third pérsons acting in good faith. R. C. C. 3032-3.

Were it not so, exclaims Troplong while commenting on the corresponding French ai’ticle, what would become of the security of transactions, the rights to credit, the respect due, to good faith, that civil and commercial equity, so much praised by Ansaldus, Straccha, after Paul and Ulpian ? Troplong, Mandat No. 824, p. 729; see also, Lau rent, vol. 28, No. 115, p. 122; also Bandry Lacantinerie, vol. 3, No. 939, § 3.

Under the law'and the circumstances, we do not feel authorized to. justify the grounds of resistance aud to forever block up in the hands of the plaintiff property to which he has acquired a valid title, of which E. F. Stockmeyer himself could not divest him and which he could not. be made to take back. On the contrary, we feel bound to recognize-the reality of plaintiff’s title and to enforce the adjudication of the-property to the defendant.

It is therefore ordered and decreed that the judgment appealed frombo reversed; and it is now ordered and decreed that the defendant bo commanded to comply with the adjudication made to him on the 14th. of February, 1885, of the property described in the petition, on petitioner furnishing him a title free from all encumbrance, save such as he was to assume; said purchaser to pa}' the cash then demanded and. which has since become due; and that in default of such compliance withiiffifteen days after this judgment shall have become final and the-title tendered, plaintiff recover from defendant the following sums:

1st. Two thousand three hundred and twelve dollars and fifty cents. ($2,312.50), with legal interest from judicial demand till paid;-

2d. Seven hundred and seventy-five dollars ($775), with seven percent from 14th February, 1885, till paid;

3d. A similar sum ($775) with similar interest from same date tills payment;

4th. Eight hundred and twelve dollars and fifty cents ($812.50), with, eight per cent interest per annum from said February 14,1885, till paid y Over and above the .taxes due and exigible in 1885; the plaintiff " to receive the above two amounts of $775 each, or $1,500 both, only on production of the two notes which the purchaser was to have assumed; the defendant, to pay costs in both courts; the whole amount*, in capital and interest, to be secured by vendor’s lien on the real estate adjudicated and described in the partition.


author: Poché, J.

text:
    No. 9572.
    Kirkpatrick & Co. vs. Clay Oldham.
    It is dow settled in jurisprudence that the property held in pledge by a creditor may be-seized out of his possession by another creditor of the pledgee, and. sold subject to the* pledgee’s claim.
    If the thing pledged is a promissory note the pledgee made garnishee cannot be heard to< urge the defense that the note is only accommodation paper, pledged for a specific purpose, and not to be enforced against the drawer for any other purpose, as such defense* could be resorted to by the drawer only when sued on the note.
    APPEAL from the Civil District Court for the Parish of Orleans^. ■.'I/aaarus, J. , .

      Jonas <& Mxon for Plaintiffs and Appellees.

      Blanc Butler for Garnishees and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Answeringinterrogatoriespropounded totheui in a garnishment process, the appellants, garnishees, stated that they held a note past due of $2500 the-property of. the defendant Oldham, who had deposited the same with their firm in pledge as a collateral security forsueli balance as he might owe them on account of advances of money which they made to him from time .to tirqe for the purchase of cotton..

They further stated that at the date of the garnishment, he owed them. $42, -which was secured by "pledge on the note, and that they would! have a further claim oil the note for the reimbursement of attorney’s fees and other costs of collection, the note being then in the hands of their agents in the State of Texas for collection.

They prosecute this appeal from a judgment ordering them to deliver the note to the sheriff to be held by him under judicial process issued in the cause, recognizing their rights as pledgees to the note to the extent of $42, and to cover such expenses as had been incurred by them in efforts to collect up to the date of the garnishment proceedings.

We find ample support for that judgment both in the facts of the case and in well settled jurisprudence.

The right of the pledgor’s creditor to seize the thing pledged out of the possession of the pledgee to be sold subject to the latter’s claim, was presented as a question, and was recently discussed by this Court "in the case of Horner vs. Dennis, 34 Ann. 389, and the right was fully and unequivocally recognized both on reason and on abundant authority.

But it is suggested that the State courts had no jurisdiction what- ■ ever on the note, as the same was in Texas for collection. But the .garnishees admitted that it was their property to the extent of their -stated claim and under their control, and as the court had jurisdiction over them, that included jurisdiction over the note, which follows the person of its owner or holder.

But appellants’ most confident reliance is on the argument, that as the note, which was subscribed by two brothers of the defendant Old-ham, was left in their possession by the latter as accommodation'paper, exclusively for one purpose, which was to secure their advances to 'Clay Oldham, they could not use it for any other purpose. Hence, they contend that plaintiffs, or any body else, could not hold the •drawers of the note thereon.

If the latter were before the court and urging that defense, their contention might he considered. But that question is foreign to the only-issue presented by the pleadings in this case, between the parties thereto.

We are not now concerned with the practical result to plaintiffs through their proposed seizure of the note in question, or with the rights which they may or may not enforce on the note against the drawers thereof.

That is a matter exclusively of their concern, and which can be .passed on judicially in future and distinct proceedings only.

Judgment affirmed.


text:
    No. 9553.
    Mrs. Jessie R. Bell vs. A. Riggs & Bro.
    Injunction will not lie against a prospective nuisance, except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance in the sense of the law.
    'Defendants having obtained permission from the city to erect a steam engine on their own premises, plaintiff, a neighbor, cannot enjoin them from such erection in advance, upon allegations of apprehended danger and injury, when the evidence leaves it doubtful whether such danger or injury will result from the erection in the mode proposed by defendants, and when, if they arise of a nature to justify legal redress, the remedy then afforded will be ample and sufficient to abate them.
    .It is not necessary to determine what amount or character of danger or injury would support plaintiff’s right to judicial relief.
    APPEAL from the Civil District Court for the Parish of Orleans. Biyhtor. J.

      SamH Jj. Gilmore and James D. Hill for Plaintiff and Appellant.

      .Albert YoorMes and Branch JL Miller for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Defendants are cistern makers, who carried on that “'business on property owned by themselves and adjoining the dwelling bouse of plaintiff.

Being desirous of applying steam power to their factory, they presented a petition to the city council for permission to do so, representing that it would not injure neighboring property, and declaring their ¡intention “to confine tlie boiler used in their factory within a brick room with iron roof and doors, and the whole independent of and .away from their main factory building.” They accompanied their petition with one signed by eighteen owners of property in tlie immediate neighborhood, expressing the opinion that no injury would result, and approving the granting of the permit.

The plaintiff, with thirteen other property holders of the vicinage, .presented a counter-petition opposing the permit.

The council, after consideration of the premises, on July 24, 1884, adopted the following resolution: “Resolved, That permission be granted to A. Riggs & Bro. to erect and maintain a small steam-engine .■and boiler on their premises, used as a cistern factory, No. 247 Delord •street; this privilege revocable at the pleasure of the council.”

It seems sufficiently obvious that the council, in this exercise of the ¡police power, has been influenced by the representation that the work «would not injure neighboring property, and lias carefully guarded itself in case such representation should prove to be false, by reserving the* power of revoking the privilege at its pleasure.

It is equally evident, in view of this reservation and of the right of neighboring proprietors to have legal redress against private nuisances, that it would be the interest as well as the duty of defendants so to construct their works as not to injure, or to injure to the least possible extent, their neighbors.

Nevertheless, without waiting to see in what manner the works would be built, what safeguards would be adopted to prevent apprehended injury, and whether such injury would actually result, the plaintiff rushes into court with this suit for an injunction to restrain defendant “from proceeding to erect and from erecting any steam-engine, boiler* or appurtenances thereto on the premises No. 247 Delord street’.”

The action cannot be sustained.

The rule is founded in reason and firmly established by authority that injunction will not lie against a prospective nuisance except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance violative of legal right. Wood, Law of Nuisances, $§ 103, 104.

The grounds of plaintiff’s action are substantially:

1st. That by reason of the accumulation of lumber and shavings in¡ defendant’s business, the erection of a steam-engine would create danger of fire, imperilling the property and lives of plaintiff and her family.

2d. Because the noise and smoke and steam therefrom would injure the health and peace of herself and family and impair the value of her property.

We consider these apprehended consequences by no means so certain, as to justify the judicial interference now invoked.

The evidence establishes that the defendants propose to erect their engine and boiler at a point as remote as possible from their own factory and from plaintiff’s house; that the boiler, in connection with, which alone fire is to be used, is to be_ detached from the engine and enclosed in a brick, fire-proof building; that a smoke-stack considerably higher than the surrounding buildings is to be used; that it is to ■ be fitted with a spark-arrester or other arrangement to prevent the • emission of sparks; and that the escape of steam is to be in the ■ smoke-stack, so as to neutralize the noise as far as possible.

It may be that the effect of such precautions may denonstrate the apprehensions of plaintiff to be imaginary; but, at all events, she. may well await tlie"result before seeking redress for apprehended injuries.

We can discover no such imminent danger or irreparable injury from the erection of the steam power, as may not find redress by prompt ■resort to judicial remedy when the danger or injury has arisen.

What amount or character of danger or injury would entitle plain-tiff to relief, in any event, is a question not now presented,#aud will be determined only when necessary. But see C. C. 669; Blanc vs. Murray, 36 Ann. 167; Lewis vs. Behan, 28 Ann. 130; City vs. Lambert, 14 Ann. 247.

Judgment affirmed.

Watkins, J., not having heard the argument, takes no part.

On Application for Rehearing.

We have given attentive consideration to the very able arid earnest -brief filed in support of this application.

Counsel complains that our opinion herein conflicts directly with that in Blanc vs. Murray, 36 Ann. 162.

Consistency is a jewel more precious, perhaps, iu jurisprudence than .-anywhere else, and it is our sincere desire to guard and preserve it. But we are utterly unable to discover the conflict suggested.

In Blanc’s case, the complaint was against an established nuisance; .in this, against a prospective nuisance. This difference is essential, and at once destroys all possibility of conflict between the two opinions.

It is claimed that, entirely independently of the addition of steam power, the existing conditions of defendants’ establishment were identical with those which we pronounced a nuisance in Blanc’s case.

But, in the first place, plaintiff makes no complaint and seeks no abatement of existing conditions; and, in the second place, the predicate of identity is not correct.

In Blanc’s case, we gave a very careful statement of the conditions, ¡saying, amongst other things. “The upper story is open. Within is ■collected a quantity of seasoned pine and cypress. The defendant is a •cistern builder, and this shed of two stories is his shop. Shavings are plentiful within, and without are piles of lumber. * * A steam rail-way passes in the middle of St. Joseph street several times a day, -puffing out sparks of fire. Of course, the danger of ignition of the ■shavings and the seasoned lumber is always imminent.”

In our opinion on rehearing, we said : “We have not held that the •construction of a wooden building, even within the fire limits of the •city is per se a private nnisance. Nor have we held that the business uf cistern maker is a private nuisance per se. What we have held is>that the business of cistern making, pursued in the manner which the evidence exhibits, in a structure of the kind built by defendants, in such a locality and with such surroundings as here shown, is a private nuisance,” etc.

Now, without adverting to other differences between the conditions thus stated aud those here prevailing, it is sufficient to say that, in this case, the premises are not located on St. Joseph street and the steam trains, “puffing out sparks of fire,” do not pass by them ; and the consequent “imminent danger of ignition” does not exist.

In the next place, the structure in which the business is conducted, instead of being an “open two-story shed,” is a closed one-story building, sheathed on sides and top with iron.

Indeed, leaving out the question of the application of steam, the evidence leaves it doubtful whether Riggs & Bro.’s establishment does-not conform to the requirements imposed by the modified injunction in Blanc’s case.

The sole question was whether the erection of a steam-engine would convert a business, not complained of as actually carried on, into a nuisance.

The city authorities, in the exercise of the police powers confided to them, upon due consideration, had determined that such would not necessarily he the result but, out of abundant caution, had reserved the right of revoking the privilege at pleasure. The evidence made it probable that, erected and conducted in the manner proposed, it would not expose plaintiff to the danger or inconvenience anticipated.

Under such circumstances, it would have been surely a rash exercise of judicial power for us to have overruled, in advance, the decision of the police authority, upon allegations of apprehended danger, which defendants denied and the evidence left doubtful.

In refusing to do this, we conformed to precedents, and certainly impugned, in no degree, the principles cautiously and carefully defined in Blanc vs. Murray.

Rehearing refused.