author: DeBlano, J.

text:
    No. 727.
    Joseph T. Swan et al. vs. Mrs. Ann T. Gayle, Administratrix, and William T. Atkins.
    The parish court is without jurisdiction o£ a suit hy creditors oí a succession brought against a purchaser of a portion of its property at probate sale, to compel him either to pay the adjudicated price oí the property, or have it decreed as still belonging to the succession.
    j^PPEAL from the Parish Court of Ouachita parish. Slack, J.

      Bobert J. Caldwell, B. W. <£• B. Bichardson, and W. W. Farmer, for plaintiffs and appellants.

      Cobb & G-unby, for defendants and appellees.
   The opinion of the court was delivered by

DeBlano, J.

As creditors of the succession of W. H. Gayle, plaintiffs aver that immovable property belonging-to said succession was offered for sale, under order of court, and was adjudicated for cash and on credit to Wm. T. Atkins, one of the defendants, as shown by theprocesverbal of the sale, and, besides, by acts passed before the recorder of Ouachita and recorded in his office.

They assail, as unfounded and false, the declaration made in those acts by Mrs. Gayle, as administratrix of her husband’s estate, that Atkins has complied with the conditions of the sale and paid her the price of the property adjudícatéd to him, and they pray that, unless Atkins does comply with the condition of tlie aforesaid sale, the property adjudicated to him be decreed to belong to Gayle’s succession, and, as such, re-advertised for sale.

We are informed by plaintiffs’ petition that — since more than two years- — Mrs. Gayle has filed an account of' her administration, and that, in July, 1875, the Supreme Court has passed on their opposition to that account, but we have not been apprised of the nature of that opposition or of the tenor of the decree.

Two exceptions were filed by Wm. T. Atkins: one to the jurisdiction of the parish court, by which this case was decided; the other, that plaintiffs’ petition discloses no cause of action.

Those exceptions were sustained, and plaintiffs have appealed.

They contend that their demand is of a probate character; that the property adjudicated to Atkins has not ceased to be, is now, in the succession of Gayle. Were it so, the jurisdiction of the parish court could not be successfully contested; but, by the judicial admissions already cited, what do we learn? That, under order of a competent court, sales were advertised and made; that at those sales Atkins became the adjudicatce of immovable property; that in the proces-verbal of that sale and in public acts Mrs. Gayle has acknowledged, having received from Atkins the price of said property.

In presence of these admissions, in presence of the violent presumption that, in her final account, the administratrix must have charged herself with the price she owns to have received from Atkins, can we legally maintain that the title to the property and its possession are still in the succession ? To reach that conclusion, we would have to disregard the plain letter of the law; for it considers the tradition or delivery of immovables as always accompanying the public act which transfers the property. R. C. C. 2479.

If the price of the property was really paid and appears in the account of the administratrix, she and the sureties on her bond are liable for it. If she did not receive the price and transferred the property, she may be removed, another administrator appointed, and the sale from her to Atkins declared a nullity. She can no longer retard the distribution of that price; her failure to distribute it would of itself justify her removal. C. P. 1013; R. C. C. 1158, 1159.

In argument, plaintiffs’ counsel insisted that their object is not to attack or avoid the sales from the succession to Atkins, but to compel the administratrix and Atkins to complete those sales. The contracts, the existence of which is admitted in their pleadings, are not only — in form, at least — complete and recorded, but they are executed contracts, which transfer both title and possession.

This case presents an exceptional feature. The unsworn creditors deny, the sworn representative of the succession asserts, the payment of the purchase price, and those creditors are before us asking that the parish court be instructed to compel the payment of a price which the administratrix declares that the adjudicatee has already made, that she has already received.

If not absolutely unfounded in law, their action is certainly premature. The administratrix is before the court by which she was appointed; she is there with an account of her administration. If that account be correct, the creditors have no cause to complain; if incorrect, they are in the jurisdiction in-which it can be disputed, to which they must apply for redress. ’ That redress is, first, by opposition to the account; and, afterward, if it becomes necessary, by removal of the administratrix, by an action on her bond, against her and her sureties, by the appointment of another administrator; and, if then required by the circumstances, by suit to avoid the sales from the succession to Atkins; or, if no price was paid, to have them declared concocted simulations.

The title to the property has passed from the succession, passed under order of court, passed at a sale made at public auction, to the last and highest bidder. That sale was confirmed by acts passed before the parish recorder, and the probate court should compel an immediate distribution of the proceeds of those adjudications, or remove the administratrix.

Can we, in advance, take for granted that the repeated declarations of the administratrix that she has received the price of the property are deliberate falsehoods, and, in advance, cancel the purchaser’s titles to said property, or decree that such titles are mere nullities, which should be erased from the record? The price — if unpaid — may be in the hands of the vendee as a deposit.

The creditors are not without remedy. They may press the administratrix, compel a classification of their claims, a distribution of the proceeds of the sale. ' Before the homologation of her account, the administratrix is not authorized to settle with the creditors. "When their rank shall be recognized and fixed by a decree of homologation, if she fails to pay their share of those proceeds the parish court would not hesitate to pronounce that she had forfeited her trust and transfer that trust to more faithful hands; and her successor would then inquire whether the price has or has not been paid by Atkins, whether he holds under a real or a simulated title. Until then we can not arbitrarily presume that the administratrix has violated her duty and given away the property of the succession, nor can we arbitrarily presume that any one can imagine that such property, the common pledge of creditors, can be either used or acquired, without a compensation or a price.

There is no error in the judgment appealed from, and it is hereby affirmed with costs.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 710.
    Evans & Taylor vs. Succession of A. M. Etheridge.
    Evidence to support a-motion to dismiss an appeal on the ground of acquiescence of appellant in the judgment, may be filed any time before the case is submitted.
    If an issue is made, as to whether appellant has acquiesced in the judgment, it must be passed on by the lower court before this court will consider it.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Gunby, for plaintiffs and appellees.

      8. D. MoPJnery, for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs and appellees file in this court a motion to dismiss the appeal on the ground that the defendant and appellant has acquiesced in and voluntarily executed the judgment appealed from. This motion and the iacts relative to the alleged execution and acquiescence are supported by the oath of appellant’s counsel.

Defendant’s counsel files a counter-affidavit setting out a different state of facts and denying the alleged acquiescence and execution voluntary. The record in this case was filed July 2. The motion to dismiss was filed July 3, but inadvertently the affidavit was not signed before filing the motion. The court permitted the counsel to append his signature and take the oath on the seventh. Appellant’s counsel urges that the motion must be considered as filed on the seventh, when the affidavit was sworn to, instead of the third, when the motion itself was filed. This is too technical, especially when invoked in a case where the affidavit was not signed by a manifest inadvertency. Besides, the law does not say that documents or proofs in support of amotion to dismiss must be filed within three days. In fact, we think that a motion to dismiss on the grounds stated in this one may be made at any time before submission, since the voluntary execution or acquiescence (the grounds of the motion) may occur at any time.

But the affidavit of appellee and the counter-affidavit of appellant raise issues which this court can not primarily try, being a court of appellate jurisdiction only. The issue thus raised must be tried.

It is therefore ordered and decreed that the court a qua proceed to try the question whether the appellanthas “voluntarily executed” or “acquiesced in” the judgment appealed from, and that its finding and judgment upon that issue be sent up to this court in due course.


author: Wyly, J. Manning, C. J.

text:
    No. 475.
    Succession of George W. Womack.
    An. administrator who received Confederate money in payment oí succession property sold by him. whon that money was the currency in general circulation, can only be held ior what the money he received was at that timo worth in gold.
    ^PPEAL from the Parish Court, parish of Ouachita. Baker, J.

      II P. Wells, for plaintiff and appellee.

      Cobb & Qunby, for accountants.

      Bobert J. Caldioell and B. W. & B. Bichardson, for opponents.
   The opinion of the court was delivered by

Wyly, J.

In August, 1862, George W. Womack died, leaving a small succession, consisting of movables, inventoried at $450 70, and immovables, appraised at $1122 02. Charles Delery was appointed administrator, and, under order of court, lie sold ail the movables, except a few articles, for the aggregate sum of $780 55. In May, 1872, Delery died without having rendered an account of his administration. Mrs. Delery and H. M. Bry, the executors of the last will and testament of Charles Delery, under order of court, filed his final account in the succession of Womack, which was opposed by the heirs at law of the deceased. As to the immovable property tendered by the accountants, there is no controversy, the heirs agreeing to accept. As to the one hundred and fifty dollars Confederate notes, inventoried as the property of the deceased, the administrator heed not account, because they were not valid obligations; indeed, they are not property. The administrator is chargeable with the value of a note of the railroad company $23, specie $21, and the debt of Weaver on Hunsacker $20; also with the inventoried value of a bridle $2 50, not sold or accounted for, amounting in the aggregate to $66 50; which, added to the proceeds of sale of personal property $730 50, amounts to $797 05. From this must be deducted $102 17, the aggregate amount of debts paid by the administrator or his representatives, leaving a balance of $391 58 due by the administrator. The objection that the shotgun and part of a barrel of sugar in the inventory are not accounted lor is not well founded; they are embraced in the sale of the personal property.

The accountants have the right to charge the succession of Womack with the clerk’s costs and the fee of the attorneys in making out the final account, no other fees of counsel having been charged.

The charge of seventy-five dollars for a coffin for the deceased is not unreasonable, and is allowed as an item in the credit herein given.

The item of thirty-six dollars, the amount of expenses in sending Jesse Womack, one of the heirs, to Georgia, is not chargeable to the estate; it is an individual debt due by him, and for which the other heirs can not be charged.

The accountants contend that the personal property sold at Confederate prices and the proceeds of the sale were Confederate notes, therefore the succession of Delery ought not to be condemned to pay over to the succession of Womack the $391 58, the balance due for and on account of said proceeds. To this the answer is that the proof does not show that Deléry received Confederate notes;- nor that the court authorized him to do so. But, assuming that the order at the time requiring him to sell the personal property of Womack impliedly authorized him to receive in payment thereof Confederate notes, because there was no other currency, still, to get relief on account thereof, it devolved upon the administrator to tender the identical notes which he received at said sale; and this has not been done.

Suppose an administrator during the war had sold the personal property of the succession confided to his administration for Confederate notes, and afterward used said notes in his business, in paying his individual debts, or otherwise invested it, deriving great benefit therefrom, would he be heard setting up as a ground of defense that the proceeds of the sale of the personal property of the succession -were Confederate notes, and that he is not responsible to the heirs ? We think not.

The three Confederate notes of one hundred dollars each, attached to the record and tendered to the heirs, are not shown to have been the identical notes received by Delery at the sale of the personal property of this succession. Our conclusion is that there should be judgment against the succession of Delery in favor of the succession of Womack for $394 58.

It is therefore ordered that the judgment of the court a qua in favor of opponents for $118 36 be amended by increasing the amount thereof to $394 58, and, as amended, that it be affirmed, appellee paying costs of appeal.

The Chief Justice was recused in this case.

On Rehearing.

The opinion of the court-was delivered by

Manning, C. J.

Womack died in August, 1862. Delery became his administrator, and obtained from the court an order to sell his movable property. It was sold, and realized more than its appraised value in the inventory. The bids at the sale were paid in Confederate treasury notes. The debts of the deceased and of his succession were paid in the same currency, and the administrator died before his account was rendered. Delery’s executors filed the account of their testator’s administration, showing a balance of near three hundred dollars due the heirs of Womack, and they present that amount in Confederate currency, along with the account, averring that they discovered a paper containing an inclosure of that sum among the papers of the deceased, Delery, which was supposed to be the proceeds of the succession sale of Womack. The object of the opponents is to compel the payment of this sum in the present currency of the nation.

There is no imputation of bad faith to the administrator. It is not charged, nor contended, that Delery used the currency received by him at the succession sale for his own purposes, and afterward replaced it by other like currency at a later period. Neither is it disputed that Confederate treasury notes were the only currency in use in the parish of Ouachita at the time of the sale. Objection was -made to the admission of proof to establish that fact, but the fact itself is undisputed. A bill of exceptions states the ground of objection to be that the executor can not be permitted to prove the existence or use of any money in discharge of debts at that time, except United States currency, nor that Confederate currency was the currency of the country at that time, as it was issued in violation of the laws of the United States.

These and similar objections are based upon the idea that courts must shut their eyes and ignore events that have stirred the world to its remotest recesses; that while all humanity has attested its interest in the historical occurrences that were transpiring at that time, judicial blindness must be affected or assumed, as to those occurrences, by those who are called on to determine the legal consequences of the acts of individuals in the midst of these events.

It was properly proved in this case, and was admitted by both counsel, that Confederate money was the sole currency of that part of the country where these proceedings were had at that time, and that this currency was then worth one third its face in gold. The highest judicial tribunal of our country has sanctioned the doctrine of common sense and common honesty which requires that obligations, made under the exceptional regime of the Confederate States, should be enforced with due regard to the surroundings of the contracting parties, and in accordance with their manifest intent; and, in assessing their moneyed value, that the value of Confederate currency at the time of the transaction should be the standard that regulates the judgment of the court. Thorington vs. Smith, 8 Wal. 1; Delmas vs. Merch. Ins. Co., Wal.

The lower court adopted this rule in the present instance, but there is another element which enters into this case which would entitle the administrator to entire relief if it had not been abandoned. The sale of the movables was a necessity. Witnesses say they or their value would have been lost if they had not been sold. There was but one currency in which the administrator could be paid at that time. The court that ordered the sale knew that. No other money would have been permitted to pass current by the government'that dominated the country where these proceedings took place, and the use of force was not needed to effectuate this public policy. A spontaneous and clamorous public sentiment supplemented and supported the financial policy of that government. The administrator could have done nothing but receive the Confederate currency, and there is no pretense that he derived advantage ■from its use. It perished in his hands. He ought not to be held responsible for it. No appeal, however, was taken by the representative of the succession from the judgment of the lower court, and, besides, relief to that extent was abandoned in the oral argument.

There is error both in the account as stated by the judge a quo and by the decree of our predecessors. The railroad note, the specie, and the Hunsacker draft, were all charged against the administrator on the account rendered for him. They were included in the inventory, and the gross sum of the assets as therein appraised was charged against him, as well as the excess above that, realized by the sale. The item of thirty-six dollars expended in sending one of the heirs away is not chargeable to the common fund, but should be deducted from his distributive share •of the estate.

The account is thus re-stated:

Assets, exclusive of land not sold............................$730 55

Debts paid, less item of $36.................................. 349 47

$381 08

which is reduced to $127 02, the proportion in value of the Confederate currency to gold being three to one.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered be set aside, and that the judgment of the lower •court be amended by inserting $127 02 as the balance due the heirs by the administrator, instead of the sum therein stated; and, further, that the distributive portion thereof to which Jesse Womack is entitled be charged with thirty-six dollars paid for his individual use, and as thus amended that the judgment of the lower court is affirmed, the opponents and heirs to pay costs of appeal.


author: DeBlanc, J.

text:
    No. 740.
    A. R. Booth vs. the City of Shreveport.
    The consent of a rmmieipal corporation to a contract may be as effectually given by the action or inaction of the common council, as by a formal resolution of the council.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, for plaintiff and appellee.

      T. Alexander, City Attorney, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Plaintiff claims from the city of Shreveport the sum of $583 33, which he alleges to be the balance due him on his salary as •officer of the Board of Health of said city, from the first of November, 1874, to the first of J une, 1875.

It is conceded and proved that plaintiff was elected health officer; that his salary was fixed by the aforesaid board at one thousand dollars per annum; that he performed the duties appertaining to his office, and that the board has no funds applicable to his claim.

Defendant denies any liability to plaintiff, and rests its defense on one of the sections of the act of the Legislature creating the Board of Health for the city of Shreveport, which declares that in case the funds arising from the collection of fees and fines, as provided in the act, are insufficient to meet all the necessary expenses of the Board of Health, then such deficiency shall be paid by the city of Shreveport, “provided said expense is incurred with the consent of the municipal authorities of said city.” Act No. 142 of 1874, section thirteen.

In the language of the statute, has the expense incident to the appointment of the health officer been incurred with the consent of the municipal authorities of Shreveport ?

Up to November, 1874, each monthly installment of plaintiff's salary was paid by the city, with the consent and approval of its council. In December, 1874, at the first or second meeting of the council during that month, plaintiff, as he had done before, presented his account for approval. In his declaration on the trial, referring to what transpired on that occasion, he said: “ My account was tabled, and from that time the council has refused to pay my salary.”

This action was taken by the council elected and installed in the city of Shreveport in November, 1874. Of that newly-elected council not a member had belonged to the preceding one.

Prom the evidence in the record, plaintiff was.twice appointed as health officer, the last time on the nineteenth of December, 1874. The date of this appointment is shown by an extract from the proceedings of the Board of Health; as to the date of the first, we are left to infer.

In December, 1874, immediately after his second appointment, plaintiff was informed — by the council’s action in regard to his account — that his salary would no longer be paid by the city of Shreveport, and that— if given at all, and howsoever given — the sanction of the previous council of that expense and of its payment was then withdrawn.

With that notice, he accepted the office, discharged the duties imposed by his acceptance, and for his compensation, from the date of that notice, he must look and apply to the Board of Health.

Until the first of November, his accounts were invariably approved and paid by the city. Were not these approvals and payments the highest expression of the council’s consent that the expense should be incurred ? The counsel for the city contends that the consent of those who represent a corporation can be evidenced but by a resolution of the common council.

To sustain this too broadly stated proposition, he refers to the decision of this court, in the case of H. N. Seibrecht, Syndic, vs. the City of New Orleans. In that case the court was not called upon to construe a special statute, one limited in its effects to a fraction of the State; in this, we are, and we must construe it according to its own provisions.

What are those provisions ? “ If the funds arising from the collection of fees and fines are insufficient to meet all the necessary expenses of the Board of Health, such deficiency shall be paid by the city of Shreveport,” and, here, the condition indispensable to bind the city is clearly stated: “ The expense referred to can be incurred .but with the consent of the municipal authorities.”

The consent is a mere operation of the mind; it is manifested by words either written or spoken, by action, inaction, or silence. Whatever may be the form of its expression, when expressed it has the effect which the law attaches to it. The statute under consideration does not qualify the consent to be given; it did not, and we can not, distinguish; where there is no qualification, no restriction, we can not presume or legislate either a qualification or restriction.

The payments by the city of Shreveport of the monthly installments of plaintiff’s salary were, as long as they were made, ample warrant to continue performing the duties of his office, a silent promise, an absolute consent, to pay for his services. That promise and consent were revoked in December, 1874.

Eor his services before that revocation, and from the first of November, defendant is liable.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby annulled, avoided, and reversed. It is further ordered, adjudged, and decreed that plaintiff do have judgment against and recover of the city of Shreveport $83 33-J, with legal interest thereon from the twelfth of April, 1876, aod the costs of both courts.

Mr. Justice Egan took no part in the decision of this case.


text:
    No. 760.
    Mrs. Nancy E. Tally vs. William Heffner, Sheriff, et al.
    Property purchased during marriage in the joint names o£ husband and wife is community property, although paid for with the wife’s paraphernal funds.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. . Boorman, J.
    D. M. C. Lliliam, Duncan & Moncure, and N. G. Blanchard, for plaintiff and appellant.

      Band & Taylor and William H. Wise, for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

Mrs. Nancy E. Tally claims to be owner of the undivided half of lot No. 8, in block No. 50, in the city of Shreveport, which she alleges she acquired jointly with her husband and paid for with her ■separate paraphernal funds.

She also claims as belonging to her the buildings and improvements which are now on the undivided half of the lot, which she considers as her separate and paraphernal property, the most of which were thereon placed and paid by her husband; and paid, as shown by the evidence, with funds of the community.

The whole of lot No. 8 was, by plaintiff’s husband, mortgaged to the tutor of the minor Wilcox and to the Life Association of America. Un.der these mortgages the property was seized and advertised for sale. Mrs. Tally opposed the sale, but without giving bond. The sale was made, and the property adjudicated, one half to the tutor of Wilcox, the other half to the Life’Association of America.

Shall Mrs. Tally’s opposition be sustained, and those adjudications annulled ? The title on which she relies either justifies or defeats her opposition.

On the nineteenth of January, 1859, she and her husband purchased from the succession of W. W. Smith lot No. 8 of block No. 50. The deed from the administrator recites that “ the sale is made to Martin Tally and wife,” that the price was paid, without stating by whom.

The partnership or community between husband and wife consists, among other things, “ of the estates which they may acquire during the marriage, either by donations made jointly to both, or by purchase, even although the purchase be only in the name of one of the two and not of both, because the period of time when the purchase is made is alone attended to, and not the person by whom it was made. R. C. C. 2402.

That article fixes the general rule. How has that article been construed by this court? Though the title be taken in the name of only one of the spouses, or in the names of both, the law classes as common property that acquired during the marriage.

To that rule wliat are the acknowledged exceptions ? As to the wife, the property is paraphernal when it is transferred to her as a dation en paiement, or when the title to the property is taken in her own name, by herself or her agent, and paid for with her paraphernal funds, administered by her without the assistance of her husband. 24 An. 295; 7 An. 92; 4 R. R. 117; 10 An. 606; 17 L. R. 300.

The intention, on the part of either of the spouses, to acquire a separate title, to exclude the acquired property from the marital partnership, must be clearly expressed, can never be presumed, and why? Because it would be to presume against an adverse, a legal, presumption.

Neither in law nor in fact can a joint purchase be regarded as a separate purchase. Under the first, the property passes to the community, and, at least as to third persons, neither of the spouses can be allowed to contradict the recital of their own act, and to show that the joint purchase evidenced by the act was, as to one of them and as to a portion of the property, a separate purchase, one by which they intended to acquire a separate title to the undivided ownership and undivided possession of an undesignated fraction of a whole, .sold to and jointly purchased by the husband and wife.

The joint purchase by those who compose the matrimonial partnership vests the acquired title, not in one of the partners and the commu-" nity, but in their partnership, and this though the price of the property be paid with the separate funds of either of the spouses. 4 R. R. 117; 17 L. R. 300; 10 L. 180; 1 R. R. 367; R. C. C. 2334.

To be a notice to third parties, to put them on inquiry, the separate purchase in the name of the wife must be recorded as required by law; but this is not all; the recorded act must contain the declaration that the property was paid for with her paraphernal funds, and that, at the date of the sale, those funds were under her separate administration, or that the sale was a “elation enpaiement” from her debtor to her, in satisfaction of a paraphernal claim. 12 R. R. 579; 8 An. 286; 20 An. 531 and 532.

Without that declaration, the fact that the title was taken in her name does not raise even a presumption in her favor, and leaves unremoved, unimpaired, the presumption that the acquired title passed to the community. When made in the act, that declaration, though not conclusive against the creditors of the community, is a notice to them. 7 An. 326; 20 An. 531; H. D., vol. 1, p. 883, Nos. 7, 8, and 10.

Plaintiff contends that one of the defendants was put on inquiry by the fact that the title to the property was in the name of the husband and wife; and how? One of the counsel representing the association went to plaintiff’s husband and asked him to explain the appearance of his wife’s name in the title-deed. The husband answered “ he did not think it would make any difference; that the property belonged to the community.” The counsel replied that he so believed.

That declaration was objected to, and should have been excluded. It was the dead husband’s declaration, made out of the presence, and against the interest of the wife, in a suit to which he had been but a nominal party. Its admission or exclusion could neither add to nor impair and weaken the presumption invoked by defendants.

Plaintiff attempted to prove by her own and the testimony of other witnesses that “ she bought in her name, for her own use and benefit, and paid for 'with her paraphernal funds, when under her administration, lot No. 8 of block No. 50.”

To the reception of that testimony defendants objected, on the grounds—

First — That plaintiff had not alleged that, at the date of her purchase, she had the administration of her paraphernal effects, or that she was separate in property from her husband.

Second — That, if received, said testimony would contradict the declarations contained in an authentic act, and substitute for recorded stipulations different and secret stipulations.

Their objections should have prevailed; plaintiff and defendants rely on but one and the identical deed; that deed was duly recorded, and became a notice to the world. It transferred the property to the community, not to the wife; and private agreements which are not recorded did not, could not, to the prejudice of the creditors of the community, divest its acquired and recorded title, or any parcel of that indisputable title.

The marked ability of her counsel has alone, but for an instant, upheld plaintiff’s unfounded and defenseless pretensions.

There is no error in the decree appealed from, and that decree is affirmed with costs.

Rehearing refused.


text:
    No. 731.
    Meyer, Weis & Co. vs. William T. Atkins.
    Novation is not presumed, but if the surrounding circumstances clearly indicate that the intention o£ the parties was to novate a debt, it will be so held.
    After the dissolution o£ a commercial partnership, the power of its former members to bind each other by note, can only arise by express mandate.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      B. W. & B. Bichardson, for plaintiffs and appellees.

      W. W. Parmer, for defendant.
   The opinion of the court was delivered by

DeBlano, J.

Defendant is sued on a note signed by D. B. Trousdale, and indorsed by Miss E. A. Trousdale and I. Lee Pettit. That note does not bear the signature of defendant, and, on mere inspection of its form and recitals, no one could imagine that Atkins is bound in solido for its amount, either as drawer, indorser, or otherwise.

Plaintiffs allege that said note was subscribed and delivered by the commercial firm heretofore trading in Monroe under the style of “ D. B. Trousdale,” and composed of said Trousdale, Atkins, and Pettit, for a claim due them by said firm. The existence of that partnership, and— while it existed — its liability to plaintiffs for an account, now represented by the note sued on, are acknowledged by defendant.

He contends, however, that the original claim of plaintiffs against their partnership has been novated, and that, in lieu of that claim, they have accepted another, a different obligation — a note secured by indorsements and mortgage.

“ Novation is not presumed; to convert a partnership debt into the separate debt of the partners, the intention to do so must clearly appear. There must be a deliberate and mutual assent of creditor and debtor to such conversion. Nay, more; a partnership creditor may take the sepa-. rate liability of a partner, without necessarily extinguishing the partnership liability. In such cases courts will look to the parties’ intention, as deducible from all the circumstances.” 6 An. 521.

In the perusal of this record, our attention has stumbled from exception to exception.

To the litigant, the law is a weapon or a shield; to the court, a landmark and a guide. Its rules should be neither enlarged nor contracted. Justice would be but an empty name if a judge could hesitate to remove a technicality to seek the parties’ intention, to ascertain what was proposed and what accepted, the character of the proposition, the .character of the acceptance; to link together the circumstances, the motives, the causes which have united two or more wills on a common purpose.

Were it necessary to do so, for the enforcement or protection of the parties’ rights, we would have discussed and passed upon the validity or invalidity of their exceptions; but, whether we consider or disregard that part of the evidence which was objected to, we can, it seems, reach but one conclusion.

What are the facts ? A commercial partnership was formed in Monroe; its style was D. B. Trousdale;” the members who composed it are those we have already mentioned. It was dissolved in the month of December, 1872, and, when dissolved, was indebted to only two parties, one Bloom, and plaintiffs firm. Those creditors were immediately informed of the dissolution of .said partnership.

It was after that dissolution, after they had been informed of that fact, that Atkins proposed to give them, in settlement of their claim, a note to be executed by Trousdale and secured by mortgage on his, defendant’s, land. Plaintiffs wrote to him to obtain his consent to indorse the note alluded to. This he positively refused to do, and replied “ that he would give nothing more than the mortgage.”

The note was subscribed, the mortgage granted. In form and in substance they are the note and mortgage proposed by Atkins. He sent them to plaintiffs, who took them without objection, brought suit on them, and, in conformity with Atkins’s agreement and their tacit acceptance of that agreement, prayed for and obtained a judgment ordering, as to him, the sale of the mortgaged land, and condemning, in solido, the drawer and indorsers of the note to pay its amount.

Their counsel were not informed when they brought that suit that Atkins had been a member of the firm, of D. B. Trousdale. Had they been .aware of it, he would have been sued; but, beyond the mortgage, he was not liable, and could not be personally held for any balance of the debt in excess of the proceeds of the mortgaged property. Their counsel’s course was the only legal course that could have been pursued under the special circumstances which surround this case.

The partnership was bound for plaintiffs’ claim. Until the note and the mortgage were taken by them, the partners were responsible in solido for the payment of said debt; but how can it be justly contended that now the partnership, or those who composed it, are responsible, in a capacity which had ceased to exist before the date of the note and of the mortgage ? Up to December, 1872, the signature “ D. B. Trousdale ” was both that of a partner and the partnership; from that time, to the knowledge of plaintiffs, it was the signature of the individual.

A partner’s power to bind his copartners by note or by acknowledgment, or to use the social name, ceases with the dissolution. Any subsequent power is derived, not from the previous relations of the parties as partners, but from a new contract, one of mandate, and that must be express and special. A confession of judgment, after'the dissolution, binds only the party making it. 2 An. 772; 8 L. 568; 5 R. R. 174; 6 R. R. 70; 4 An. 276; Edwards on Bills and Notes, p. 118.

“ The partnership having been dissolved, and the proper notice thereof given, the presumed agency of a partner to bind the firm while acting during the scope of the business, is thereby revoked, and he can make no new promise or engagement in the name of the firm, even though he only changes, without increasing, the prior obligations of the partners. The power to settle and adjust the concerns of the firm does not carry with it the authority to sign an account stated, to indorse, or renew a note in the name of the partnership.” Edwards on Bills and Notes, p. 117 and 118.

The partnership had been a failure; its safe and portfolio were empty; its credit was lost, and, to its creditors, the note, with its indorsements and the mortgage, were as unexpected wrecks cast to the shore by the sea after the disaster. They renounced the barren solidarity of an insolvent partnership for the personal security of each of the partners.

They could have enforced their claim against all or any one of the partners. This we admit; but, during the litigation, the debtors might have so protected their property against it, that the litigation would have been as fruitless as expensive to the creditors, who, in their own interest, have exchanged an account for a note, a chance for a reality.

Hiere is not, on or in that note, a sign, an expression, indicating the least intention of reserving the original liability of the partnership, or to attach to the new obligation the solidarity abandoned or destroyed by the last transaction, which, if not expressly accepted, was ratified by the creditors.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby annulled, avoided, and reversed. It is further ordered, adjudged, and decreed that plaintiffs’ demand be and it is hereby rejected at their costs in both courts.


text:
    No. 625.
    The State vs. Robert Nunn.
    An indictment which fails to conclude with the words “ against the peace and dignity of the same,” i. e„ the Stale, is fatally defective.
    APPEAL from the Eleventh Judicial District Court, parish of Lincoln. Trimble, J. Trial by jury.

      Robert T. Vaughn, District Attorney, for the State.

      J. G. JSgan, for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted, tried, and convicted of murder, and sentenced to death. He has appealed.

The record in this- case discloses an almost reckless disregard of the forms of law and the rights of the prisoner. It is admitted —

First — That no counsel was assigned to him until after his arraignment and plea, and after the twelve jurymen had been called into the jury-box, and the first one called up to be sworn.

Second — That the prisoner was brought into court in irons, and kept so during the entire trial.

Third — -That after trial and conviction application was made for new trial, alleging the above grounds, and moreover the discovery of new evidence of a most material character, after trial. It was admitted that this evidence was unknown to the prisoner or his counsel at the time of trial. It was also admitted that the prisoner was .an ignorant colored man, and supposed and believed that he had an attorney to whom he had in due time given a list of important witnesses; that the attorney had not caused summons to issue for them, because he regarded his employment as only conditional.

The court refused him a new trial.

The prisoner thereupon filed a motion in arrest of judgment, on the ground that “ the constitution of the State (article seventy-nine) requires that all prosecutions shall conclude ‘ against the peace and dignity of the same,’ i. e., of the State. That the indictment in this case concludes ‘against the peace and dignity of the — •. Robert T. Yaughn, District Attorney, Eleventh District, La.’ ”

A number of errors on the face of the record are assigned, which it is unnecessary to mention.

The motion in arrest should have been sustained. The indictment is fatally defective in not concluding as required by the constitution, which is peremptory and mandatory. 10 An. 195. But, under the verdict of guilty, on so grave a charge, we can not direct the discharge of the prisoner, and will order him to be retained in safe custody until the next session of the grand jury.

It is therefore ordered, adjudged, and decreed by.the court that the sentence and verdict appealed from be set aside and annulled; and it is now ordered that the motion in arrest of judgment be sustained, and the indictment set aside and quashed; and it is further ordered that the prisoner, Robert Nunn, be held in safe custody until after the next term of the grand jury of the parish of Lincoln, to answer such charge as may be preferred against him.


author: Manning, C. J.

text:
    No. 762.
    Julius Lisso vs. the Parish of Red River.
    Where an act ol the Legislature authorizes a parish to issue its bonds for a certain purpose, in such form and denomination as the police jury of the parish may prescribe, the police jury must specifically authorize the issue of such bonds, and in default of this action of the police jury, all bonds issued under color of said legislative act are invalid.
    Political corporations are not bound by tlio unauthorized acts of thoir agents, when the mandates of the latter are of record, or embodied in a statute.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Chaplin, J.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues upon four bonds with their coupons, a copy of one of which is as follows :

,f500 00. ' No. Three.

State oe Louisiana, Parish oe Red River.

Parish bond for the purpose of paying for the building of a court-house, and for other purposes.

It is hereby certified that the parish of Red River is indebted unto bearer in the sum of five hundred dollars, which sum the said parish agrees to pay in current money of the United States, at the office of the parish treasurer, to the said bearer in one year from the date hereof, with interest at the rate of eight per cent per annum, payable semi-annually on the first day of November and May in each year, on the delivery of the interest coupons attached at the office of the parish treasurer.

Eor the performance of which the faith and credit of the parish of Red River is pledged by Act of the General Assembly, approved March 4,1872. Witness the signatures of the president of the Police Jury and the treasurer of the parish of Red River, May 1st, 1872.

[Seal] M. H. TWITCHELL,

President of the Police Jury.

JULIUS LISSO, Treasurer.

On the reverse of the bond is printed an act of the Legislature, under authority of which it purports to have been issued.

The defendant excepted to the suit on four grounds, the second and third of which were ordered to be taken as part of the answer, and a separate answer was made, denying the authority of the president of the police jury to issue the bonds, or that they were in existence at the time of the pretended sale of them. The grounds of exception thus referred to are—

“ Second — Because the bonds were not issued by authority of said police jury as provided for and contemplated in said statute.

“ Third — Because no public ordinance, as required by law, was passed by said police jury, authorizing the issue of said bonds; nor was any ordinance passed determining and ascertaining the rate of taxation necessary to raise the fund to pay said bonds and the interest thereon as required by said statute.”

The second section of the act of March 4,1872, reads thus:

“ That the bonds shall not exceed in amount the sum of twenty thousand dollars, or so much thereof as may be necessary, and shall be of such denomination and form as the police jury may prescribe. They may be sold under the direction and control of the police jury on the most advantageous terms.”

The act contemplates some action on the part of the police jury ordaining that the bonds shall be issued, fixing the denomination and quantity of them (limited by the maximum total mentioned in the act), and also prescribing their form. The jury never passed any ordinance of that kind. The act of the Legislature conferred upon the police jury the power to do these things, but that body never exercised it. The only ordinance that was passed relative to the matter was one providing for the advertisement and sale of the bonds, as follows :

“ Be it enacted by the police jury of Red River parish that the president be and is hereby authorized to cause to be advertised, sold, and delivered according to law, as the interests of the parish may require, the bonds of the parish authorized by act No. 13 of the session of 1872.”

The minutes of the jury show this ordinance received its sanction May 20,1872.

The bonds, for the sale of which provision is thus made, had no existence, since no act had been done by the jury to call them into being. This ordinance was an ante-natal destination of them to sale and delivery. Certain papers, having the form of bonds, had been signed by the president of the police jury, and by the parish treasurer, who is plaintiff here in his personal capacity, but they neglected to obtain the sanction of that body, or to have it prescribe what the Legislature had empowered it to do. These papers are not the bonds of the parish. No valid bonds could be issued without the authority of the Legislature. That authority having been given, none could be valid unless issuod in conformity to the directions of the legislative act.

Police juries are political corporations, whose powers are especially defined, and they can not exercise any others than those delegated to them.

“It is a general and fundamental principle of law that all persons contracting with a municipal corporation must, at their peril, inquire into the power of its officers to make the contract; and a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. So, also, those dealing with the agent of the corporation are likewise bound to ascertain the nature and extent of his authority. This is certainly so in all cases where the authority is special and of record, or conferred by statute.” Dillon’s Municipal Corporations, vol. 1, sec. 372.

“ The general principle of law is settled beyond controversy, that the agents, officers, or even city council of a municipal corporation can not bind the corporation by any contract which is beyond the scoioe of its powers, or is entirely foreign to the purposes of the corporation. * * The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only may know, but are bound to know. * * * It results that unauthorized contracts are void, and in actions thereon the corporation may successfully interpose the plea of ultra vires, setting up as a defense its own want of power under the charter, or constitutional statute, to enter into the contract.” Dillon’s Corp. sec. 381.

The plea here is that the bonds now held by the plaintiff were unauthorized by the corporation ; that they were not issued pursuant to any ordinance passed by it, and that the police jury had never adopted any ordinance directing that a court-house should be built, and providing for the issuance of bonds to pay for the building thereof, and this plea is supported by the proof.

J udgment affirmed.


author: Spencer, J. DeBlanc, J.

text:
    No. 700.
    The State vs. John B. McCoy.
    Tho law which directs a chango oí venuo on tho naked application oí the district attorney is constitutional.
    The verbal reservation oí n, right to file exceptions, made by an attorney, in a caso before a district court, is of no effect.
    The accused in one ease can not avail oí an exception to the venire filed by the accused in another case.
    When he is neither “ personally interested ” in tho ease, nor connected by blood or marriage with a prisoner arraigned beioro him, the judge must, on being recused, appoint a lawyer of proper qualifications to sit in his stead.
    The affidavit of an accused that an absent witness would prove that his life was threatened by tho deceased, and that he killed deceased in self-defonso, is not ground for a continuance.
    Threats of decoased against the accused, are not admissible in evidence, until it be first proved that the accused had been advised of them.
    APPEAL from the Ninth Judicial District Court, parish of Bapides. Bowman, Judge ail hoc. Trial by jury.

      JEilwin (?. Hunter, District Attorney, for the State.

      If. Iiyan, H. L. Daigre, and A. Gasdbat, for defendant and appellant.
   Tho opinion of the court was delivered by

Spencer, J.

Defendant was indicted in the parish of Grant for murder. On motion and affidavit of the district attorney a change of venue was ordered to Rapides parish, where the accused was tried and convicted of murder, without capital punishment, and accordingly sentenced to hard labor for life. He prosecutes this appeal, and presents by bills of exception for our decision various grounds for the reversal of the sentence: '

First — That tho court erred in granting the change of venue upon the simple application of the district attorney, without proof.

The act of 1868 does not require proof where the district attorney applies for the change, but makes it obligatory on the judge to grant it. In this case the district attorney swore to the facts stated by him, and to the necessity of the change. The change of venue was ordered in January, 1876, and no subsequent legislation should be construed as vacating that decree. This act of 1868 is not in conflict with the constitution, so far as we can see. Article six guarantees a trial by a jury of the parish, “unless the venue be changed.” The Legislature was and is free to declare when and how the venue may bo changed. This is what it did by said act.

Second — H. L. Daigre, one of defendant’s counsel, on the first day of the term offered to file on behalf of one White and one Jones (who stood indicted before the court) a motion to set aside the venire, which the judge refused to permit him to do, because he had not paid his license. Thereupon he excepted. On trial of this case against McOoy said attorney offered to file therein, his said bill of exceptions taken in the cases and on behalf of White and Jones, stating that he had verbally reserved the right to file said bill in all cases in which he was counsel.

The court did not err in refusing this application. The district court is a court of record, and verbal reservations of the sort referred to can not be noticed. Defendant McCoy has no right to complain of the court’s rulings in the cases of White and Jones, with which he had no connection. If he thought the venire illegal, he should on the first day of the term have filed or offered to file his motion to quash it. He did not do so.

Third — That the court erred in calling R. J. Bowman, an attorney at law, to preside in the trial of this case. The facts are that after the indictment of McCoy his attorney, W. E. Blackman, was elected judge o£ the ninth district. Judge Blackman entered an order in this case recusing himself on the ground that he had been of counsel for defendant, and appointed Bowman, an attorney of his court, to try the case. Defendant excepted to Bowman’s appointment, and contends that, under article ninety of the constitution, an attorney can not be appointed to preside in the trial of a criminal case. That article reads as follows:

“In any case where the judge may be recused, and where he is not personally interested in the. matters in contestation, he shall select a lawyer having the qualifications required for a judge of his court to try such eases. And when the j udge is personally interested in the suit, he .shall call upon the parish or district judge, as the case may be, to try the case.”

It would be difficult to frame a law in more general terms than this : “In any case where the judge may be recused, and where he is not personally interested in the matters in contestation, he shall select a lawyer,” etc. “When the judge is personally interested in the suit he shall call upon the parish judge,” etc. The provisions of section 1068 of Revised Statutes apply only where the judge “is connected by blood or marriage with the prisoner.” So that the interpretation of article ninety of the constitution contended for by defendant would leave the ease, where the recused judge was not personally interested, and not related by blood or marriage, totally unprovided for. We can not adopt such a view. We think the appointment of an attorney to preside is clearly legal. If the law requires the attorney so appointed to take an oath as judge ad hoc, we must presume that it was done. The point is only raised in the brief of counsel. The record does not show that an oath was not taken. Omnia presumuntur rite aeta.

Fourth — -The accused made affidavit for continuance on account of the absence of certain witnesses, and stated therein what he expected to prove by them. Among other things stated as provable by said witnesses was that “said Radeski (the deceased) by his threats and conduct against affiant rendered the danger to his (affiant’s) life actual and imminent, and that the killing o f Radeski was unavoidable and necessary to preserve his own life, and the killing done in self-defense.”

The court ordered this part of the affidavit to be stricken out, and thereupon the State admitted the truth of all the other allegations of the affidavit, and the court then overruled the application for continuance, and the trial proceeded. Defendant excepted. We think the reasons assigned by the judge ad hoc sufficient. He says : “ The question whether the threats and conduct of the deceased rendered the danger to the life of the prisoner imminent is a question which must be determined by the jury from the words and actions of the deceased constituting •those threats and that conduct, and not from the assertions of the witnesses ; that the threats and conduct did render the clanger imminent is •a legal question growing out of certain facts, and not a fact itself. The question whether the killing of Eadeski was unavoidable, and necessary to preserve the prisoner’s life and done in self-defense is the very issue submitted to the jury; a legal question to be determined by them and not by witnesses under the semblance of giving testimony, and that the State could not be required to admit legal questions as evidence.”

Eifth — The counsel for prisoner asked a witness : “ Did you hear the deceased, Radeski, make, on the day of the killing, any threats against the life of the accused?” Objection being made by the State, the court offered to permit the prisoner to ask witness if he had ever communicated to him, the prisoner, any threats made by the deceased;” and if the witness answered affirmatively, then to allow the question propounded to be put. The prisoner refused to put the preliminary question proposed by the court, and -then the court sustained the objection, and prisoner excepted.

“ It is well settled that antecedent threats by the deceased against the accused are not admissible in evidence, unless it appears that they were communicated to the accused. Their admissibilty depends upon this as a condition precedent; and as their admission would be illegal without this necessary concomitant proof of communication, we think that the court may well refuse to admit them until this necessary foundation is laid, just as courts refuse to admit the testimony of deceased or absent witnesses until the death or absence is proved.” State vs. Gregor, 21 An. 473.

Sixth — The prisoner also excepted to the charge of the judge, which was as follows:

“ If you are conscious that you know what the law is upon any point that may arise in your deliberations, it is your right and your duty to follow your own constructions, even though they may differ from the legal opinion of the court upon that point, but if you feel conscious that you are ignorant of whát the law is upon the point in question, it is your duty to follow the law as stated by the court, and to ask its instructions upon points of which you are ignorant. The law never intended in making juries judges of the law that they should substitute ignorance for knowledge, nor for juries to decide that to be law which they in their conscience feel that they know nothing about. Although you are not lawyers, the law presumes that you have learned the -law of this case from the law which has been expounded to you on the trial. But knowledge is something tangible and definite, and you must be conscious that as such you possess it whenever you differ from the court upon a point of law.”

The objection to this charge can not be that it is too restrictive of the power of -juries. While fully, and perhaps too fully, conceding the jury its powers as judges of the law and fact, it wisely and properly cautions them against substituting their ignorant fancies and personal wishes for conscious knowledge and application of legal principles as bases of decision.

Seventh — In the brief of counsel for accused, it is stated that it'is assigned as error on the face of the record that the accused was not arraigned as required by law. We find no assignment of errors filed in the record, and even if the statement in the brief sufficed, the counsel has not advised us wherein the defect of arraignment consists; and an inspection of the transcript has failed to reveal it to us. We conclude, therefore, that there is no error in the verdict and sentence appealed from; and

It is therefore ordered and decreed that the same be affirmed with costs.

Concurring .Opinions.

DeBlanc, J.

In this case the district attorney applied for a change of venue, on the ground that the State could not obtain a fair and impartial trial in the parish of Grant, because of the prisoner’s popularity among some of the population and their almost universal determination and assertions that they would acquit him.

The State officer swore to the truth of these facts, and his declaration stands uneontradicted.

Eor that reason I am of the opinion that the change of venue was properly allowed, but I do not believe that, on the naked application of either the Attorney General or a district attorney, the judge is authorized to change the venue to another parish without proof that a competent .jury of the parish, wherever the offense is charged to have been committed, can not be had.

The constitutional rule is that “the accused shall be entitled to a ■speedy public trial by an impartial jury of the parish in which the offense was committed.” The change of venue is the exception to that rule.

Unless it is alleged and established that an impartial jury of the parish can not be had, a change of venue, against the will of the accused, is a dangerous violation of the constitution, as, otherwise, that constitutional privilege of a prisoner, his life, his liberty, and reputation would be at the mercy of the district attorney or Attorney General.

.1 concur in the decision read by Mr. Justice Spencer, and reserve the right of hereafter filing a separate opinion on the question above alluded to.

Egan, J.

I concur in the views expressed in the foregoing concurring ■opinion of Mr. Justice DeBlanc. The uncontradicted affidavit of the district attorney in the matter of change of venue, though unusual, sets forth a very sufficient state of facts in the present case to warrant the ■order made.


text:
    No. 701.
    Elizabeth Edwards and Husband vs. M. A. Edwards, Administrator, et al.
    Where the matter in dispute is over five hundred dollars this court has jurisdiction.
    The sufficiency oí a surety on an appeal bond will not be considered here when not put at issue, or passed on in the court below.
    In a suit to annul a judgment, brought within a year from the date of the judgment, the judgment can not be pleaded as res aúóudicaia.

    An attorney at law has no authority, unless specially empowered by his client, to confess judgment for the latter.
    A confession of judgment by a married woman, which condemns her to pay her husband’s debt, is null and void.
    Parol evidence is admissible to show that property seized at the suit of a community creditor belongs to the wife.
    APPEAL from the Eourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Gwiby, for plaintiff and appellant.

      Garrett & Garrett, for defendants.
   The opinion of the court was delivered by

Spencer, J.

On the fourth of November, 1873, M. A. Edwards, administratrix of D. L. Edwards, obtained, by confession, judgment in the parish court against W. S. Stutson, plaintiff’s husband, for some $220 on. Ms note dated December 1,1870. On the twenty-eighth of March, 1871, M. T. Edwards and wife sold, by notarial act, to their daughter, the plaintiff, the eighty acres of land in controversy in this suit, stating the price to be $1000 cash received. On the twenty-third of November, 1871,. said plaintiff, Elizabeth Stutson, by notarial act, acknowledged to have received from her father and mother $1500 in cash as an advance on her-inheritance.

M. T. Edwards and wife had eight children, four majors and four minors. About the same dates as above they made to each of the three-other majors (of whom D. L. Edwards was one) similar acts of sale of land, and took from each of them similar notarial receipts. They also sold and transferred to their minor children property of equal value.

M. T. Edwards died in 1872, and Ms widow, Adeline Edwards, qualified as tutrix of the minors.

In January, 1875, M. A. Edwards, administratrix, issued a fieri facias against W. S. Stutson, on said parish-court judgment, and caused the eighty acres'of land so convoyed by the father and mother to plaintiff to-be seized as community property.

A suit was thereupon brought in the name of the plaintiff in the district court of Ouachita, claiming the land as her paraphernal property,, and enjoining its sale for the husband’s debt. The affidavit for injunction was made by Stutson, the husband, as agent of his wife, the plaintiff, and the petition was signed by Stubbs & Stone, attorneys. On the sixteenth of March, 1875, the attorneys for plaintiff and the attorney' for defendants in that injunction suit (which was numbered 1216) made an agreement whereby it was stipulated that the case would be continued by consent until the September term following, on the condition that if Stutson shall on or before that time pay the amount of the enjoined-judgment, then said injunction suit to be discontinued at plaintiff’s costs, otherwise, “there shall be judgment therein dissolving the injunction at-plaintiff’s costs,” and directing the sheriff to proceed with the sale of the property, the sale not to be made before the first Saturday of January, 1876. On the fourteenth of September, 1875, this agreement was filed in the cause, and on the eighteenth judgment was entered up according; to its stipulations, dissolving the injunction without damages, and staying the sale till the time agreed upon. The land was thereupon again advertised for sale on the fifth of February, 1876, and part of it adjudicated to one Wood, said to be the father of defendant, M. A. Edwards, the-remainder not sold for want of bidders. On the fifteenth of February, 1876, this present suit was brought, reciting in substance the above facts, praying the nullity of said judgment of the eighteenth of September, 1875, also the nullity of the sale to Wood, and to be decreed owner of the-property as paraphernal, and to enjoin its sale for the husband’s debts, etc.

The defendant first pleaded in defense the judgment in said suit, 1216, as res adjudicata, which was by the then judge overruled. Defendant then answered, reiterating the plea of res adjudicata, and claiming that, the property, having been bought after marriage, by the wife, was community property. The case was tried at the May term, 1877, and the-judge then presiding rendered judgment for defendant, sustaining the-plea of res judicata, dissolving the injunction, and directing the sheriff to proceed to sell under the fi. fa. against the husband.

Plaintiff appeals. There is a motion to dismiss the appeal on two-grounds : first, because this courtis without jurisdiction ratione materia}; and, second, for insufficiency of the surety on the appeal bond.

The matter in dispute is the ownership of the land (which is clearly-shown to be over five hundred dollars by the deed to plaintiff and the uncontradicted allegations of her petition under oath) and to validity of a judgment subjecting the same to the husband’s debts, and to annul a sale of part of it. We clearly have jurisdiction. As to the sufficiency of the surety on the appeal bond, this court can not notice the objection, because it is a court of appellate jurisdiction only. No objection to the sufficiency of the surety on the appeal bond was made, or tried, in the court below. True, the same party was surety on the injunction bond, and a rule was taken to dissolve for insufficiency, but it does not seem to have been passed upon by the 'court below. The proofs taken on that rule would not enable us to say, if we had the right, whether the surety was good or bad at the time of the appeal.

The motion to dismiss is overruled.

On the merits, there are but two questions:

First — As to the validity of the judgment of the eighteenth of September, 1875, and as to its effeét as the thing adjudged.

Second — As to the property being the separate paraphernal estate of the wife.

First — The judgment in suit No. 1216 was rendered on the eighteenth of September, 1875. This suit, to annul it, was instituted on the fifteenth of February, 1876, less than six months after its rendition. A judgment which is attacked by action of nullity within one year can not be pleaded as res adjudicata to the suit for nullity. Otherwise, the action of nullity would be a farce and a mockery, since the existence of the judgment attacked (which alone gives the right and tho occasion to the action of nullity) would be itself a bar to proceedings to annul it. In other words, the same fact, to wit: the existence of the judgment, would be at one and the same time the foundation and destruction of a right of action.

We do not agree with defendant’s counsel that plaintiff’s remedy to avoid the said judgment was by appeal or motion for new trial. She did riot know, perhaps, of its rendition until the time for new trial had elapsed, and the grounds of nullity alleged are matters dehors the record, and could not, therefore, be brought to the knowledge of the appellate court. Plaintiff attacks the judgment on the ground that the attorneys had no authority from her to consent to it, and acted without her knowledge or consent. This is fully proven by her oath, which defendant makes no effort to contradict. These attorneys were practitioners before the court trying the cause, and, we think, the fact that they were not called by defendant to xDrove their authority from her, and to contradict the plaintiff’s oath, is strongly corroborative of its truth. We accept it as true.

Article 2997 of the Civil Code is too clear to require other citation of authority to establish the proposition that an attorney at law has not, as such, authority to confess a judgment to acknowledge a debt ” “ to compromise or refer to arbitration,” or “ to make a transaction in matters of litigation.”

Besides, it is the well settled jurisprudence of this State that a married woman can not, so as to bind her, or her property, confess a judgment for a debt of her husband or of the community. See 3 N. S. 498; 2 An. 3, 806; 12 An. 350; 14 An. 165; 15 An. 628. There is no dispute as to this debt being that of the husband and community. What the wife could not do herself, she could not authorize her attorneys to do for her. So, we are brought to the only remaining question, was the land seized in this case the paraphernal property of the wife and plaintiff?

The evidence shows, if admissible, that such was the fact, beyond any doubt whatever. In fact, the defendant does not even venture to contradict it, but relies solely upon the legal presumption resulting from the acquisition by the wife being made after her marriage, and upon technical objections to the evidence offered by her. Leaving aside the parol evidence in this case, the deeds and conveyances themselves, whereby these old people, M. T. Edwards and wife, conveyed to each of their children properties of equal value, and, subsequently, took their several receipts in authentic form, for equal amounts, as advances on their successions, leaves no shadow of doubt in our minds that -the sale to Mrs. Stutson by her father and mother of the land in controversy was in fact a donation to her, as an advance, and that the receipt given by her a few months afterward to them for fifteen hundred dollars embraced the one thousand dollars stated as the price of the sale. The parol evidence offered fully proves these facts, and was properly admitted. Evidence going to show the connection between the act of sale and the subsequent receipt does not contradict either act. Plaintiff simply alleged and proved that the sum stipulated as the price of the sale to her was in fact the same identical sum for which she gave her receipt.

The plaintiff prays for damages. Had she offered proof of their amount we should award them to her, for we are strongly impressed that the defendant, Mrs. M. A. Edwards, widow and administratrix of D. L. Edwards, plaintiff's brother, and himself a recipient and holder of property under the same terms and conditions as plaintiff, has acted in bad faith in this proceeding, and in knowing disregard of her sister’s rights.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff, Elizabeth Edwards, be declared owner in her own right of the land described in her petition in this case, and that the defendants be perpetually .enjoined from disturbing her possession thereof; that the judgment of the eighteenth of September, 1875, in the suit No. 1216 on the docket of the district court of Ouachita parish, be annulled and avoided, and that the sale to 'William Wood by the sheriff, of date fifth of February, 1876, under execution, enjoined in said suit No. 1216, be and the same is annulled and- rescinded. It^is further ordered and decreed that defendants be condemned in solido to pay the costs of the court below and of this appeal.

Rehearing refused.


author: Egan, J.

text:
    No. 694.
    The State vs. Jake Thomas.
    An indictment charging an act, with intent to commit m urcler, which does not aver that the act was " willfully and feloniously ” done, is fatal.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. McVea, J. Trial by jury.

      W. N. Potts, District Attorney, for the State.

      W. F. Kernan, for defendant.
   The opinion of the court was delivered by

Egan, J.

The defendant was indicted, tried, found guilty, and sentenced to three years imprisonment at hard labor in the penitentiary. After an ineffectual motion in arrest of judgment, he has appealed. The charge, as stated in the indictment, is that he did, with force and arms, “ shoot one George Washington loith a dangerous weapon, namely, a shotgun, with intent to commit murder, and to murder aforesaid George Washington, contrary to the form of the statute,” etc. The ground set forth in the motion in arrest and the error assigned is that the indictment does not charge that the accused did the acts charged “ feloniously, willfully, and with his malice aforethought.” At common law this indictment would be bad, and Wharton’s American Criminal Law, section 399, lays it down that the use of the word “ feloniously ” is essential to all indictments for felony, -whether common law or statutory. Again, section 372 of the same author says that where a statute refers to a common-law offense by its popular name, and proceeds to- impose a penalty on its commission, it is, of course, insufficient to charge the defendant with the commission of the offense in the statutory terms alone, while under the Virginia statute against attempts to commit offenses, the same authority says it is not enough to say “the defendant attempted to maim;” the particulars of the attempt must be set forth. In same section, §293 says “the, weight of authority now clearly is that an indictment for attempting to commit an offense must show on its face facts which would make an attempt in point of law, or at least should so individualize the offense as to secure the offender from a second conviction.” While it is true that even at common law it was not necessary to charge an attempt to commit a crime or offense with the same particularity and minuteness as the commission of the crime or offense, it was always held necessary in such an indictment as that under consideration, at least whenever done “with felonious intent,” and, indeed, it would seem with “malice aforethought.” Archbold’s Criminal Pleadings, p. 62, side paging 50; same, p. 531, side paging 447; see, also, same, p. 422 and 423, and Chitty’s Criminal Law, vol. 3, p. 828. It is, however, claimed that as the law now stands in Louisiana such allegations in an indictment, even for murder itself, are unnecessary, since the statute of 1855 and Revised Statutes of 1870, and the cases of the State vs. Phelps and Brown, 24 An. 494, and State vs. Toney Forney, 24 An. 191, are relied upon in support of this view. Of the former of these cases, it might be sufficient to remark that the indictment which was held good charged expressly that the defendants “ did loillfully, maliciously, and feloniously kill, slay, and murder,” and that Howell, Justice, dissenting, adhered to the doctrine announced in the State vs. Heas, 10 An. 195, which, as well as the uniform current of previous decisions, held as essential in an indictment for murder the words with malice aforethought” as not being an “ unnecessary prolixity ” in the meaning of the statute. See, to similar effect, Territory vs. Nugent, 1 M. 117 and 175, and State vs. Kennedy, 8 R. 602; 9 An. 211; State vs. Stiles, 5 An.; to the effect that whatever has been determined to be essential averment in an indictment at common law will be deemed necessary here, “ and that the power to remedy the evil lies in the legislative branch of the government.”

In the cases of the State vs. Cook, 20 An. 145, and State vs. Durbin, 20 An. 408 (both for robbery) the court held that the statute of 1855 was not intended to make a radical change in the system of criminal pleadings, but to simplify it and correct some supposed deficiencies, and that the essential, substantial averments in a bill of indictment required by the common law are not dispensed with by the act of 1855, and that the omission of the term “ feloniously ” in the indictment was held to be fatal.

It is singular that the court altogether overlook, in the State vs. Phelps and Brown, 24 An. 494, the important fact that section 1048 of the Revised Statutes of 1870 provides that "it shall be sufficient in an indictment for murder to charge that the defendant ‘ did feloniously, willfully, and of Ms malice aforethought, kill and murder the deceased,” and in every indictment for manslaughter to charge that the defendant “ did feloniously kill and slay the deceased.” These provisions are precisely those of the act of 1855, and clearly indicate that it was not the legislative intention to dispense with them, which, as was well said by Judge Ilsley, the organ of the court in State vs. Cook, are precisely the important facts charged in the indictment according to the English form (quoting Archbold’s Crim. Plead., 314).

It is hardly necessary to add that by the act of 1805, of 1855, and the Revised Statutes of 1870, it was provided that all crimes, offenses, and misdemeanors shall be taken, intended, and construed according to the common law, and that the forms of indictments (divested of unnecessary prolixity) the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, offenses, and misdemeanors (‘ changing what ought to be changed ’) shall be according to the common law, unless otherwise provided.”

The cases cited in this opinion, and those referred to in them, give judicial interpretation to the words unnecessary prolixity ” and “ changing what ought to be changed ” under the statute. The essential averments of a good indictment at common law are not classed under either head. The case of the State vs. Toney Forney, 24 An. 191, was an indictment “ for shootiDg with intent to kill and murder while lying in wait,” and charged the act to have been done “ willfully, feloniously, and maliciously.” The extent of the ruling of the court was that the offense was sufficiently charged in that language under the statute, without the use of the.words, “with malice aforethought.”. None of the words “willfully, feloniously, or maliciously,” found in that indictment, appear in the indictment in the present case, which does not, therefore, come within the authority of that case, even admitting it to be consistent with the former rulings of this court. Whether, therefore, it was essential to use in that indictment the words “ with malice aforethought ” or not, we are of opinion that the omission of the words “ willfully and feloniously ” is fatal.

It is therefore ordered, adjudged, and decreed that the judgment be arrested, that the verdict and sentence appealed from be annulled, avoided, and reversed, the indictment quashed, and that the defendant remain in custody to await the finding o.f a new bill of indictment by another grand jury of the parish of East Feliciana,


text:
    No. 764.
    John A. Hunter et al. vs. R. T. Buckner & Brother et al.
    If the real owner of property allows it to stand recorded in tho name of another, by a title translative of property, he puts it in the power of that other to create a valid mortgage on it.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.

      L. B. Watlcins, for plaintiffs and appellants.

      Land & Taylor and William H. Wise, for' defendants.
   The opinion of the court was delivered by

Manning, C. J.

John A. Hunter, Virgil A. Stewart, and William B. Stewart allege that the first two purchased the Wray and Boland plantation, under a bond for title, from W. E. Wamsley, on the fourth of January, 1871, the price being séven thousand five hundred dollars, which bond erroneously recites that $3983 19 were paid in cash, the residue being provided for by the execution of three notes of equal sums, payable respectively on the tenth of November, 1871, and the same day of the two following years, and that this sum, thus represented to have been paid cash, was not in fact thus paid, but as follows:

On the same day that plaintiffs executed the notes to Wamsley, a conveyance of the Loggy Bayou plantation was made to him by William B. Stewart, Alice M. Stewart, and Martha S. Caldwell, for the expressed consideration of $3519 08 cash, and that this sum was not in fact paid in cash, but in reality was a part of the slightly larger sum mentioned as cash paid in the bond for title of the Wray and Boland plantation.

The petitioners further allege that in August, 1873, Wamsley instituted suit upon the three notes above mentioned, praying for judgment for their aggregate amount, and for the enforcement of his vendor’s privilege, and a judgment with a restraining condition as to execution was rendered against them, as will appear by that case, now before us on appeal.

But meanwhile, viz., on third of April, 1873, Wamsley had executed a mortgage upon the Loggy Bayou tract to R. T. Buckner & Brother to secure the payment of his debt to them, amounting to .$2197 29, and they had obtained executory process thereon, and that tract was advertised for sale on February 17,1877. Besides, Wamsley had never paid for the Wray and Boland tract, and his vendors foreclosed their mortgage upon it, and it was sold on the second of December, 1876, for a sum insufficient to pay their mortgage, and Hunter and Virgil Stewart were consequently evicted.

The plaintiffs allege that Wamsley’s failure to lift this mortgage is a breach of the condition of his bond, and operates a revocation of the sale of the Wray and Boland tract to Hunter and Virgil Stewart, and entitles the plaintiffs to the payment of the penalty of the bond, and that the revocation and resolution of the sale of the Wray and Boland tract entitles them to recover back the Loggy Bayou tract free from every incumbrance that Wamsley may have placed upon it, and particularly from the Buckner mortgage. They then pray the annulment of that mortgage, and its erasure from the mortgage records, and for the revocation of the sale of the Wray and Boland tract through the enforcement of the resolutory condition, and a decree declaring void any salo that may take place under the Buckner mortgage.

An exception was filed by the Buckners.

First — That Hunter and Virgil Stewart have no interest in the suit to annul the sale of tho Loggy Bayou tract, but that such suit should be by all the vendors of that tract, and not by one alone.

Second — That no legal cause of action has been set forth in the petition against the Buckners, inasmuch as they are third parties, who were ignorant of, and are unaffected by, any latent equities between others.

This exception was referred to the merits, and there does not appear to have been any other objection to either the misjoinder or nonjoinder of parties.

The Buckners answered by a general denial, with the allegation that they are holders of a special mortgage upon the Loggy Bayou tract, acquired by them in good faith and in ignorance of any secret bargains between their mortgageor, Wamsley, and his vendors or others, and believing, and having a right to believe, that Wamsley was the legal owner of the mortgaged premises.

Wamsley’s administrator, answering for the succession, pleaded the judgment in the other suit upon the notes as res acljuclicata. There was judgment for the defendants.

The plaintiffs’ documentary evidence included the bond recited in the petition, and the deed to Wamsley of the Loggy Bayou tract. The first is an instrument by which Wamsley binds himself to Hunter and Virgil Stewart in the penal sum oí seven thousand five hundred dollars, and is dated January 4,1871. The condition is that, whereas Wamsley has that day sold and delivered the Wray and Boland tract for seven thousand five hundred dollars (the vendees not mentioned), of which sum $3983 19 is paid cash in hand and receipt acknowledged, and three notes of equal amounts are given for the residue by Hunter and Yirgil Stewart, with W. B. Stewart as security, now if the two makers of the notes shall pay them, then Wamsley shall make or cause to be made a good title to this land to those makers. No other document was signed by these parties. The notes were never paid, and a formal act of sale was never executed.

The deed from William B. Stewart, Alice M. Stewart, and Martha S Caldwell to Wamsley of the Loggy Bayou tract recites that the consideration, viz.: $3519 08, was received, and is acknowledged before the signing and delivery of the deed, and the title is warranted. This instrument has no date, and is not signed by Wamsley, but neither of these omissions is noticed or objected to by counsel on either side. Appended to this deed is the affidavit of one of the subscribing witnesses to the genuineness of the several signatures, which was made before A. J. Twitchell, recorder, on the fourth of August, 1871. The plaintiff did not offer any writings or certificates upon the back of the deed.

The defendants offered the Buckner mortgage, and the indorsement that it was recorded on April 14,1873; also, the “certificate of the recorder of the date of registry” of the Loggy Bayou sale, thus supplying that writing or indorsement which plaintiff had not included in his offering; that is to say, the note of plaintiffs’ evidence shews that he offered the deed to Wamsley, and the note of defendants’ evidence shows that he offered the certificate upon that deed; and the clerk states this latter is designated No. 2. But there is no document No. 2 in. the transcript.The certificate which the defendants offered is copied, however, in the plaintiffs’ evidence immediately after the deed, and is necessarily the one offered by them. It is as follows:

I hereby certify the above and foregoing to be a true and correct copy of the original, duly of record in my office book A conveyances, folios 18 and 19. Given under my hand and seal of office this fifth day of September, 1876;” and then follows the recorder’s name.

The deed of the Loggy Bayou place has then no date. Its execution was proved before the recorder August 4,1871. There is no certificate of the date it was recorded; but on the fifth of September, 1876, the recorder makes a copy of it, and certifies that it is of record in a certain book, on a certain page. When was it recorded ? The defendants say, certainly before August 7,1871, because the bond of Wamsley was recorded on that day in book A, page 41, and the certificate shows the deed to Wamsley was recorded in book A, page 18, ergo the deed was recorded before the bond, since it is on an earlier page. The misfortune of this demonstration is that there are two books A, and the deed was recorded in page 18 of the Conveyance Book, while the bond is certified to be recorded on page 41 of the Mortgage Book. »

The whole case turns upon this. This minute elaboration is only excused by the importance of ascertaining the date of the registry. We are enabled to ascertain that it was before another given date thus.

The public acts of the Legislature shew that the parish of Red River was created March 2,1871. The deed was proven before the recorder August 4 following, and it was recorded on page 18 of the first book of conveyances; and was therefore one of the earliest recorded deeds.' Wamsley’s title was therefore on record long before his mortgage to Buckner of April, 1873.

We are now enabled to apply the law to this state of facts. Parol testimony was offered to prove that the recitals in the deed and the bond, that certain moneys which were part of the consideration of the one, and the whole of the consideration of the other, were not paid in fact, but that the Loggy Bayou tract was estimated at the sum expressed in the deed, and was exchanged for the Wray and Boland tract of larger value, the difference being represented by the small cash payment and the three notes. The evidence was rejected.

It is of no consequence to the outside world what the contract really was between Wamsley and these parties. The only matter that third persons are concerned with, is to know' what Wamsley and Ms vendors say that the contract is. There was on the public records, and in its proper place, an act of sale by which a title, translative of property, was conveyed to Wamsley of a certain tract of land, the price of which was acknowledged to have been paid in full, and he was in possession of it. He mortgaged that land to a bona fide creditor to secure his debt. There is no pretense of fraud, or simulation, or collusion, or bad faith, nor is there any knowledge alleged or brought home to the creditor, of the secret purposes or understandings of these numerous parties, if indeed such existed, and he can not be affected or injured by them.

It was superfluous therefore to hear testimony which could not affect Buckner’s mortgage. But we are told that this suit is to enforce the dissolving condition of a sale for non-payment of the price, which being accomplished, the thing sold will revert to the vendors free from all charges created by the vendee. .

The resolutory or dissolving condition is implied in all commutative contracts, and its effect is to restore matters to the status that existed at the date of the contract. Civil Code, articles, 2040-41, new numbers 2045-46; Chretien vs. Richardson, 6 Annual 2. So, too, if the price of a contract had not been paid, it would be competent to the parties as between themselves to shew it. Barry vs. Insurance Company, 11 Martin, 630. But these indisputable rules of law neither conflict with, nor do they weaken, that other rule which binds a party to suffer the consequences of his own word or deed, rather than 'inflict an injury upon an innocent person who has been deceived by him..

It is begging the question therefore to say that this sale must be dissolved for non-payment of the price, since the truth was that it was not paid. The act of sale informed the world it was paid, and the Buckners, acting on that information, gave credit to the owner of the property, and are entitled to enforce their mortgage upon it.

This disposes of the numerous issues which obscure the ease, and justifies the judgment of the lower court.

Judgment affirmed.


text:
    No. 756.
    John W. Carnes vs. the Parish of Red River.
    A law which has for its object to change the mode o£ executing judgments is morely remedial, and does not impair the obligation of contracts.
    The law regulating the execution of judgments which is in force at the time judgment in a particular case is rendered, must govern in that case.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.

      L. B. Watldns and O. E. McDonald, for plaintiff and appellant.

      J. F. Stephens, Parish Attorney, and Elam & Sutherlin, for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff was sheriff of the parish of Red River, and in that capacity had rendered services, such as keeping and maintaining prisoners while in jail, transportation of convicted felons to the penitentiary, arrest of persons charged with crime, per diem allowance for waiting on the court, etc. His accounts of these charges had been certified by the clerk of the court to be correct, and had also the approval of the judge. Revised Statutes, 1870, section 2776. Demand was then made on the parish treasurer for payment, which was refused, because there was no money. This suit is to enforce payment, and to compel the assessors to assess forthwith such tax as may be necessary to pay the judgment which may be rendered. The petition was filed April 30,1877.

The defendant pleads a general denial to the moneyed demand, and alleges the unconstitutionality and invalidity of the law, which requires a judge to order the assessment and collection of a tax for the payment of a judgment, idem (sections 2628-30), and also the repeal of that law.

There was judgment in favor of the plaintiff for the sum claimed, and the court refused to order the assessment and collection of a tax for its payment. The plaintiff appeals.

Those sections of the Revised Statutes of 1870 which direct a judge to order the assessment and collection of a tax to pay a judgment were repealed on the tenth of April, 1877. Acts 1877, p. 87. The repealing law does not provide that it shall go into effect from and after its pas.sage. It takes effect therefore from its promulgation, and all laws are considered promulgated in the parish of Red River thirty days after their publication in the State gazette. Civil Code, article 6. The publication in the official journal will be presumed to have followed immediately upon the passage of the law, unless the contrary be shown. The judgment in this case was rendered on the second of June, at which time the repealing law was in force in that parish.

The appellant regards as unconstitutional this attempted deprivation of his right to have an assessment and collection of a tax ordered by a court at the same time a judgment is rendered in his favor, and for the purpose of paying that judgment, because it impairs the obligation of a. contract.

The distinction has now become familiar between laws that impair the obligation of contracts and those that modify or alter the remedy for the enforcement of the obligation. A law which regulates the form of judicial proceedings is remedial in its character. If, before a final decision in such proceedings, a new law intervenes which changes the form* such law will operate upon them. The mode of executing a judgment belongs to the future, and a new law will govern it. Dean vs. Carnahan, 7 new series, 259; Cooper vs. Hodge, 17 La. 476; Frey vs. Hebenstreit, 1 Rob. 565.

That the law which empowers or directs a judge to order the assessr ment and collection of a tax to pay a judgment has reference to the remedy, is apparent. There was a remedy prior to the act of 1869, when for the first time this power was conferred upon the judge. That act appears in the last revisal of the statutes in the sections quoted'.. The act of 1877 which repeals those sections merely takes away from the judgment creditor of a parish a remedy that he never had until 1869, deprives him of a mode of enforcing his judgment, peculiar and exceptional in kind, and dependent for its continuance upon the legislative will.

The plaintiff, however, insists that the repealing law of 187.7 can not' affect his judicial proceeding, because his suit was instituted on April 30* and that law had no effect in that parish until in the following month* It is the law that is in force when the remedy is about to be applied that controls. When the court rendered judgment on June 2, the power to accord the plaintiff the peculiar mode of enforcing it, which he had demanded in his petition, no longer existed.

Our law at one time permitted executory process on foreign judgments. An order of seizure and sale was taken under it, and the law was repealed before the process was completely executed. Held, that the remedy was extinct. Scott vs. Duke, 3 Annual, 253; Com. Bank vs. Markham, idem, 698. Therefore,

It is ordered and decreed that the judgment of the lower court is .affirmed with costs.