text:
    No. 8526.
    Stephen Bird, Executor, vs. L. F. Générès et al.
    Whore <a suit Is brought by an executor, claiming title to the property of an insolvent, as belonging to the succession which he administers, and which is seized by another executor for account of another succession, it is necessary that such first executor prove title in said succession and make the assignee of the insolvent and the heirs of the seizing creditor parties to the action.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Bouge. Gole, J.

      Sam’l P. Greves, for Plaintiff and Appellant.

      Favrot & Lamon, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action coupled with an injunction, brought directly against the succession of L. F. Générés, represented by Elmore Dufour, as executor.

Its object is to have the succession of John Bird recognized as owning certain real estate, seized and advertised for sale by Dufour, to foreclose a mortgage upon it.

There was judgment dissolving the injunction and rejecting the claim. From that judgment the plaintiff has appealed.

The proceedings of Dufour are instituted against the assignee of Lobdell, the mortgagee. The judgment rendered was for $11,495, with interest, costs and charges, and mortgage on the property. On that judgment a fi. fa. issued, by virtue of which the property was seized and advertised, but its further execution was enjoined by the succession of John Bird, claiming to be the owner thereof, by purchase from T. J. Bird, who is alleged to have acquired it at a tax sale, in consideration of $200 paid therefor, under process for the collection of taxes, for several years, due the State.

The evidence does not show that Stephen Bird, who claims to be the executor of John Bird under a Missouri court appointment, is such, and ever was recognized in that capacity by the proper court in this State. Neither does it establish that John Bird himself ever acquired the property. It is to the effect, that at a tax sale, the property was adjudicated to T. J. Bird, who afterwards appears to have sold it for $280 to the succession of John Bird, represented in. the act by an agent of the executor.

We deem it unnecessary to consider whether the tax title made to T. J. Bird has transferred the ownership of the land to him.

It is enough, for the present purpose of this case to say, that T. J. Bird is not a party plaintiff in this action, and that if he have no interest to be such, that Stephen Bird, who claims to be the executor of John Bird, has not shown himself to be such, although put on his proof.

There is another objection to the consummation of the proceedings in this case, which is a real action, and it is, that neither have the heirs of Générés nor the assignee of Lobdell been made parties to the suit.

The action is not against one in possession of the property, but is solely against the legal representative of the deceased mortgage creditor. Its object is clearly to strip the succession of Générés, his heirs, and the bankruptcy of Lobdell, and the creditors thereof, of all their rights in and to the land, whether as owners, or otherwise. It is in the nature of an action in reven dication, which, under the express terms of the law, must be brought, not' only against the executor, but also against his heirs, present or represented. C. P. 123, 27, 4; R. C. C. 1137, 1329; 9 A. 302.

We are authorized to notice cx-officio that neither the heirs of Grénérés nor the assignee of Lobdell, were made parties to resist the action, which cannot be decided in their absence.

We do not consider that the correctness of this proceeding, against the executor alone, is to be tested and is sanctioned by Article 398, C. P., which can only apply to suits brought by creditors themselves, and which has no reference to suits brought by executors of deceased creditors, as those executors do not represent the deceased completely.

The estate which they represent cannot be divested of any real right by a real action, unless the heirs are made parties.

An executor can exercise only those powers which the law has conferred upon him, surely not those which the law has expressly said he would not have. Articles 123 and 398, must be construed together.

We do not think that this case is one in which other damages than costs can be allowed on the dissolution of an injunction.

We construe the judgment appealed from as one of dismissal. It is affirmed with costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8499.
    E. J. Hart & Co. Mrs. M. J. Bowie et al.
    The prayer of the petition in this case, notwithstanding its confused averments, shows that the suit is the revocatory action, and it was properly dismissed hy the lower court for want- of the necessary allegation of the vendor’s insolvency.
    The plaintiffs were not entitled to amend their petition after it was dismissed as showing no cause of action.
    APPEAL from the Ninth. Judicial District Court, Parish of Tensas. Hough, J.

      Leory & Kmttsehnitt, for Plaintiffs and Appellants:
    l. This is a suit seeking the nullity of a certain sale or transfer, on the ground that it is either simulated or fraudulent.
    2» The essential averments in an action en declaration do simulation are: (1) That the alleged title is a mere mask; (2) That plaintiff’ has an interest in removing the mask. 11 Am 168; 33 An. 1031.
    3. The essential averments in the revocatory action ai'e: (1) Actual fraud. <2) Injury to plaintiff. C. C. 1978; 1G La. 370; 28 An 930; 33 Am 1031.
    4. Amendments should he allowed at any stage of the proceedings in furtherance of justice. 2 Martin N. S, 626; 27 An. 715.

      Olinton (ft Young, for- Defendant and Appellee:
    1. The peremptory exception of no cause of action may he plead at any time. 27 A. 715:
    2. Pleadings oanuot he amended after the oause is fixed for' trial. 22 A- 351 and 534.
    3. There can he no amendment after dismissal of the suit. 7 N. S. 647.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to annul and set aside a sale of certain immovable property, made by Mrs. Bowie to her co-defendant, Moore, on the ground that said sale was made with the fraudulent design of removing' said property from the pursuit of Mrs. Bowie’s creditors, and more particularly to injure plaintiffs, who claim to be creditors of the vendor.

The case comes to us on a question of pleading, plaintiffs having-appealed from a judgment maintaining- a peremptory exception pleaded by the defendant, Moore, who urged that the omission of plaintiffs to-allege in their petition the insolvency of A. T. Bowie & Co., their debtors, or of the individual members of said firm, or of the defendant, Mrs. Bowie, as’ an alleged member of said firm, or to allege that such insolvency was known to exceptor, was a fatal error in their pleadings.

The first step necessary to a solution of the point presented to us, is to ascertain the nature’ of the action brought by plaintiffs, and owing to the uncertainty of their averments, this investigation is not free of difficulty.

The petition contains allegations charging- the transaction as an audacious simulation, then as a real, but fraudulent transfer, and again, as a sale of property the value of which was over half in excess of the price paid.

A careful comparison of these varied allegations creates the impression that the real nature ’of the action is a suit “ en declaration de simiolation,” until a reference to the prayer forcibly creates a different impression. The relief prayed for is: that said simulated, fraudulent and pretended sale be reversed and set aside.”

Now, as a simulated sale is a shadow, a more nothing, it is impossible to annul, reverse or set aside that which is nothing; and hence,■ we conclude that, in asking the court to annul and set-aside the transaction. complained of, plaintiffs must have conceived in their mind that a sale of some kind had been effected between the defendants; for if they had intended to treat it as a mere simulation, they would have prayed for a decree declaring such a conclusion, and they would have thus characterized their action as “ en declaration de simulation.'''1

They contend that their suit partakes of the character of both the revocatory action and of that in declaration of simulation.

But testing the character of the suit by the prayer in the petition, we conclude that it is a revocatory action, and. shall subject their pleadings to the rules governing such actions.

A compliance with those rules requires that the complaining creditor should allege that the vendor was his debtor, that he wras insolvent or, at least, that he had no other property within the reach of the creditor, that his insolvency was known to the purchaser, and that the intention and effect of the fraudulent sale were to injure the plaintiff, in preventing the recovery of his just claim.

Plaintiffs contend, that by alleging that by the pretended sale, Mrs. Howie “has collusively, fraudulently * * * . transferred her property for a mere nominal consideration to Joseph Moore, to the extreme detriment and injury to petitioners ; * * . that if the .alleged contract be a sale, it is fraudulent, collusive and illegal, and that it is a simulation,” “and that there is no other property in the State belonging to said Mrs. Bowie on which petitioners could exercise their rights as creditors,” they have substantially complied with the requirements of the law regulating the revocatory action.

A conclusive answer to this argument is furnished by their own petition, in which they set forth the source of their claim against Mrs. Bowie, who is charged as being their debtor, for goods sold and furnished to the commercial firm of A. T. Bowie & Co., of which firm she is alleged to have been a member.

It was, therefore, incumbent on them to allege the insolvency of that firm and of the individual members thereof, as-a condition precedent to justify their interference with such a disposition of her property as Mrs. Bowie desired, in the exercise of her legal rights to make; and it was also required of them to allege the knowledge of such a state of insolvency in Moore, before charging him with participation in a collusive and fraudulent transaction calculated to remove Mrs. Bowie’s property beyond the reach of her creditors.

Could it even be shown that their suit was exclusively and clearly an action “ en declaration de simulation” it was yet required of them to allege the insolvency of their debtors, or their inability to collect their debt, without recourse to the property which had been sold to Moore.

Under those fatal omissions, we conclude that the exception was properly maintained. C. C. 1981, 1986; 4 R. 438, N. O. Gas Co. vs. Carroll et als.; 19 A. 290, Abat and Generes vs. Penny et al., and authorities quoted in the last case.

Plaintiffs’ complaint of the refusal of the Judge to allow them to amend their petition, after the dismissal of their action on a peremptory exception of no cause of action, cannot be favorably entertained. The dismissal of a petition which discloses no cause of action, disposes of the suit, anil no amendment, can then be allowed j any amendment under which a cause of action would be disclosed, would undoubtedly change the issue, or rather create an issue where none had yet been presented, and in law and justice the defendant would be entitled to service of the new petition, and to delay for preparation of his defense. 7 N. S. 645, Ursuline Nuns vs. Depassan.

The case of DeBuys vs. Molliere, 2 N. S. 626, quoted by plaintiffs, does not hear them out; the amendment allowed in that case was to-permit the insertion of the given names of the plaintiffs. In the language of that decision: The names of the persons composing the firm did not in any respect change the issue.” .

The case of McCubbin vs. Hastings, 27 A. 713, presents an instance where this Court justified an amendment, after the lower court had •maintained a peremptory exception, and seems to support plaintiffs’ theory; hut we are reluctantly compelled to differ with our learned brothers of that bench in this ruling, which we consider as erroneous, even when coupled with the statement that “ amendments are always-allowed at the discretion of the'court.” The stringent rules of the Code of Practice are incompatible with such a construction, C. P. 343, 345; 22 A. 351, 534.

We-note the suggestion of plaintiffs, that the judgment he amended so as to make it one of non-suit. The judgment being one of dismissal on exception, adjudicates nothing on the merits, and does not delta) plaintiffs of the right of filing another action for the same relief.

Let the judgment appealed from he affirmed with costs.


author: Todd, J. Bermudez, C.'J.

text:
    No. 8453.
    Succession of Josephine Trosclair.
    The father and natural tutor of a minor child having for several years cultivated a plantation which was the common property of himself and ward, will he charged with the yearly rent of an undivided half of the plantation, and legal interest on said rent. It cannot he held that the cultivation of the property was for the common use and benefit of the tutor and minor child, and that the latter should ho charged with the losses of such cultivation.
    Art. 1100 C. C., which inflicts penalties on parties who take unauthorized possession of vacant estates, does not apply to the surviving spouse who takes possession of the community property.
    APPEAL from the Twentieth Judicial, District Court, Parish of Lafourche. Knobioch, J.

      Moore & Bademx, for Plaintiff and Appellant.

      Lewis Guión and J. 8. Goode, for Opponents and Appellees.
   The opinion of the Court was delivered by

Todd, J.

Josephine Trosclair, wife of Drauzin Triche, died in 1853, leaving five eliildreu and a succession, consisting mainly of an undivided half, or community interest, in a sugar plantation in the Parish of Lafourche, known as the “Laurel Grove Plantation.”

One of the children, Octavie Triche, now Mrs. Leonidas Trosclair, was a minor at the death of her mother, and her father, Drauzin Triche, was appointed her natural tutor. He died in 1875, without rendering an account of his tutorship. Olympe Triche was appointed administrator of his succession, and as such, filed an account of the tutorship. Lapene & Eerré, and other creditors of Drauzin Triche, opposed the account. Judgment was rendered, on trial of the oppositions, in favor of Mrs. Trosclair, for fifty-eight 9-100 dollars, from which she has appealed.

The deceased never kept any books or accounts relating to the matters of the tutorship, and the account of tutorship filed by the administrator mentioned, is based on estimates of the nett proceeds of the annual crops made on the plantation, the whole of which was cultivated, by Triche, in his own interest, and where no evidence existed to make such estimates of the crops. Several years’ rentals of the plantation supplied the place of such estimates. The conclusions of the Judge a quo are founded on estimates of the profits realized from the planting, operations of the years comprising the term of the tutorship and the minors’ shares of the same. All of this is vague and conjectural. The ward, however, should not be made to suffer for omissions and irregularities on the part of the tutor. Ho incurred certain responsibilities under the relation assumed by him, and to these he must be made to respond, and neither the tutor nor his creditors can be permitted to derive benefit from his negligences, in the discharge of the duties of his trust.

It is, however, a matter of difficulty in this condition of things to arrive at any accurate conclusion in regard to the actual liability of the tutor, and even to adopt a satisfactory basis, from, which to pursue our investigations touching the state of his accounts with his ward. And whatever mode may. be adopted, under the. circumstances of uncertainty and confusion attending the subject, the result can only be at best an approximation of the true indebtedness or exact balance.

It is pretty much a . similar state of facts as existed in the case of Vance vs. Vance, 32 A. 188, where this Court said: “Whether we adopt one or the other of the methods suggested for the calculation, the result will be reached. As the tutor mingled the administration of the minors’ estate with his own, and manifestly cultivated and used them in his own interest so that no fair statement of the matter can be made, the proper mode of calculation is to charge him with the rent and hire of the land, slaves and movables, and to charge him at the end of each year with interest at five per cent, on the amount of that year’» rent 5 also, to charge him up with the various sums received front other sources.” ,

A thorough examination of the record, and review of the evidence, satisfies us that the same plan of settlement should be adopted in this case. The tutor is without authority to blend the means of the minor with Ms own, and use his estate in his own business, with the expectation that the minor is to share the losses of the business and take his chances of the profits. The law does not permit an administration of the minor’s estate so precarious and uncertain. The tutor is authorized to lease a plantation of the minor or his interest therein, C. C. 346, and if, instead of doing so, he chooses to cultivate it himself and for his own advantage, he should be compelled to pay the same rate of rental himself at which it could have been leased. And, under the circumstances of this case, there ’ is no other way by which anything like a just settlement of the matter can be made. If we depart from this, all becomes conjecture, involving uncertainty and confusion. And whilst a settlement, based on the rentals of the property, may fail to do justice between the parties, under the facts presented, no more reasonable or just mode is open to us.

The Judge a quo estimated the rental of the entire plantation at $3,000 per annum, and the most positive testimony of at least one witness, fixed it at $4,000; we are inclined, from a consideration of all evidence bearing on this point, to adhere to the Judge’s estimate. The tutor must be charged with the rents of the property from the time his usufruct ceased at his second marriage in 1864, and charging him with the rents from that time up to, and including the year he died, (1875) and with certain movable property upon the inventory, we make up the following settlement:

ASSETS.

Item I — Rent of Laurel Grove Plantation from 1864 to 1875, both years inclusive, say 12 years, at $3,000 per annum............................................$ 36,000 00

Item II — 5 per cent, interest on rent of 1864, from Jan. 1, 1865, to June 28th, 1881, (date of filing account) say 16 years, 5 months and 27 days...................... 1,802 08

Item III — 5 per cent, interest on rent of 1865, from Jan. 1, .. 1866, to same date, say 15 years, 5 months, 27 days... 1,780 18

Item IV — 5 per cent, interest on rent of 1866, from Jan. 1, 1867, to same date, say 14 years, 5 months, 27 days... 1,607 08

Item V — 5 per cent, interest on rent of 1867, from Jan. 1, 1868, to same date, say 13 years, 5 months, 27 days... 1,555 18

Item VI — 5 per cent, interest on rent of 1868, from Jan. 1, 1869, to same date, say 12 years, 5 months, 27 days... 1,442 68

Item VII— 5 per cent, interest on rent of 1869, from Jan. 1, *■ 1870, to same date, say 11 years, 5 months, 27 days... 1,330 18

Item VIII— 5 per cent, interest on rent of 1870, from Jan. 1, 1871, to same date, say 10 years, 5 months, 27 days... ■ 1,225 18

Item IX— 5 per cent, interest on rent of 187Í, from Jan. 1, 1872, to same date, say 9 years, 5 months, 27 days____ 1,112 68

Item X — 5 per cent, interest on rent of 1872, from Jan. 1, 1873, to same date, say 8 years, 5 mouths, 27 days____ 1,000 18

Item XI — 5 per cent, interest on rent of 1873, from Jan. 1, 1874, to same date, say 7 years, 5 months, 27 days____ 887 68

Item XII — 5 per cent, interest on rent of 1874, from Jan. 1, 1875, to same date, say 6 years, 5 months,'27 days____ 775 18

Item XIII — 5 per cent, interest on rent of 1875, from Jan. 1, 1876, to same date, say 5 years, 5 months, 27 days..'.. 625 18

Item XIV — Movables (exclusive of mules and farming utensils) to be found in Inventory “A,” (Record, p. 41)____ 532 50

Total assets........................$51,827 16

Of this the ward, Mrs. Trosclair, is entited to 1-5 of 1-2, or say 1-10 of whole.................................. $5,182 71

LIABILITIES.

Item I — Board, tuition, etc., of the minor, as per admission................................ $1,956 00

Item II — Costs of filing account, etc............. 75 00 2,031 00

Balance due ward.................. $3,151 71

Less 1-10 of the Badeaux Judgment, $13,904.24, (community debt.).............................................. 1,390 42

Net balance due.................... $1,761- 29

On this balance, legal interest must he allowed from date of the filing of the account, 28th of June, 1881, and for the amount of the same a legal mortgage must be recognized on the immovables of the estate of tutor. This mortgage was not allowed by the Judge a quo, and its recognition is strenuously opposed by the opponents’ counsel, on the ground of an alleged insufficient registry to preserve the mortgage. -The evidence of the mortgage, seasonably recorded, consists of a certificate of the clerk of the proper court, which declares or certifies in effect that the inventory and supplemental inventory of the succession of Mrs. Josephine Trosclair, on file in his office, shows an amount of 89,058.35, coming to Marie Octavio Triclie, born of tho marriage of said Josephine Trosclair and Drauzin Triche. This is virtually ah abstract of the inventory, and shows a substantial compliance with tho law on tho subject of such registry, and this view of the matter is sustained by the ruling' in case of Donnell vs. Grant, 24 A. 189; C. C. 3351.

In our above statement of the tutorship account, it will appear that we have charged Mrs. Trosclair with her proportion of the community debt, being- the Badeaux judgment. This charge is resisted on tho ground that Triche, the tutor, had assumed the payment of the community debts.

Itis true, that in the purchase from the major hoifs of their interest in the community property, he assumed payment of the community debts, as part of the consideration of the sale, but lie never acquired the interest of the minor heir, which she still retains, and that interest remained burdened with the proportion of the debts and must be charged to her in this settlement.

Nor have we discussed the several exceptions filed by the opponents, for the reason that from the silence of the counsel of opponents in their argument before this Court respecting them, we consider them abandoned.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended, by increasing the balance in favor of Mrs. Leonidas Trosclair, as found by the Court below, to one thousand seven hundred and sixty-one 29-100 dollars, which the succession of Drauzin Triche, deceased, is condemned to pay her, with five per cent, interest thereon, from the 28th June, 1831, and for said sum and interest, a legal mortgage be, and the same is recognized against the immovables of said succession, to date and take effect from the beginning of the tutorship, 6th December, 1866, and that opponents pay costs of this appeal.

On Application for Rehearing.

Bermudez, C.'J.

The complaint lacks merit that Mrs. Leonidas Trosclair should not contribute to the payment of tho debt duo Telemaque Badeaux, for the reason that Triche, having illegally taken possession of his wife’s succession, is chargeable with all the debts of tho estate, and eventually in damages.

Article 1100, R. C. C., had not escaped our attention. The penalties which it inflicts aro directed against the trespassers who take possession of vacant estates without authority, and who are, besides, subject to criminal prosecution. R. S. 3685 ; 30 A. 949.

The provisions of that Article are to be strictly construed, and cannot be extended to the case of the taking of possession by a husband and father, of the estate of his deceased wife accruing to his minor issue, composed of the residuary interest in the partnership of acquets and gains.

Besides, whatever might be the liability of such a trespasser, to creditors or heirs, it surely cannot relieve the heirs who have accepted the succession, and who thereby have become bound insupra in favor of the creditors, as is the case in the present instance.

The assumption of Triclie, in favor of the other heirs, at the time he purchased their interest, to pay the debts of the community as part of the consideration of the sale, did not enure to Mrs. Leonidas Trosclair, who, being a minor, was not a party to the contract, and who now claims fully her inheritance.

We have visited upon the delinquent the utmost responsibility which could bo saddled upon him, and do not feel authorized to make the deduction asked in the shape of an exoneration from liability.

Rehearing refused.


author: Poüiié, J.

text:
    No. 8516.
    James O. Poole vs. W. B. Cook, Sheriff, et als.
    The plaintiff in this case is not entitled to an urban homestead, under the Constitution of 1879, against the execution of a judgment rendered in favor of his creditor, and against him, in the year 1877.
    APPEAL from the Eighteenth Judicial District Court, Parish of St. Tammany. Duncan, Judge ad hoc.

      Joseph A. Beid, for Defendants and Appellees:
    1. Rural property, and not urban, is exempt from seizure under Article 645, Code of Practice. Parmers alone are entitled to the exemption Cruly’s case, 25 An. 219; 26 An. 645 ; 28 An. 575.
    2. Whilst the Constitution of 1879 did not repeal or afreet rights existing at the time of its adoption, registry was necessary to perpetuate the light. Arts. 219 and 220, Constitution of 1879.
    3. The conditions of the exemption are; (1) a bona fide ownership ; (2) ehildien or some one dependent upon him for suppoit; (3) the wife owning no property worth over 81000— when either or all of these conditions fail, then the tight ceases. Jiatione cessante cessat ipsa lex. O. P. 645.
    4. When the title of real property remains in the name of the vendor, and there is a necessity for legal process, by a pursuing creditor to unmask a title covered up with a view of defeating his creditor, it cannot be considered as such bona fide title as would he necessary to maintain the homestead claim. 32 An. 983.
    5. Cnder the facts, no damages can he awarded to plaintiff, even if this injunction is perpetuated.
    Plaintiff not represented in tbis case.
   Tlie opinion of the Court was delivered by

Poüiié, J.

Plaintiff enjoined tlie execution of a judgment against him in favor of John Chaffe & Sons, on the grounds that the property seized is exempt from seizure as his homestead, under the provisions of Art. 645 of the Code, of Practice.

The. answer is a general denial, coupled with a prayer for' damages, and this appeal is taken from a judgment in favor of plaintiff.

Among other obstacles thrown in plaintiff’s way, to retain as a homestead tlie property seized, it is contended that the property is an urban estate, and as such, not subject, to the operation of the homestead Act of 1865.

It is obvious that plaintiff’s claim to a homestead in this case must be tested under the provisions of the homestead law of 1865, and not under the provisions of the present Constitution on the subject of homesteads and exemi>tions, for the plain reason that the judgment in execution was concluded in 1877, and that homestead law cannot affect contracts or obligations entered into anterior to the passage of such laws. Mills vs. Sheriff, 25 A. 336; Roupe vs. Carradine, 20 A. 244.

Any difficulty which might be suggested on this question, has been fully met and. overcome by the following provision in Art. 220, of the. present Constitution, which stipulates that, “ Rights to homesteads or exemptions, under laws or contracts, or for debts existing at the time of the adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution, or any laws passed in pursuance thereof.”

This language has already received judicial interpretation, and was held to mean that parties claiming homesteads or exemptions against the enforcement of contracts or obligations entered into prior to the adoption of the present Constitution, must litigate their rights under the homestead law of 1865. Gilmer vs. O’Neal, 32 A. 982.

This construction could not be resisted by plaintiff, who does not even allege, and much less prove, a registry of liis homestead claim, as required by the Constitution of 1879, and the homestead Act of 1880, a state of facts which would be absolutely fatal to his pretensions to a homestead, under those laws.

Now, the most distinguishing feature between the homestead law of 1865, and that provided for in the Constitution of 1879, is that the former law applied only to rural estates, and not to urban property, and that the Constitution of 1879, extends the benefit of homestead exemptions to both rural and urban estates.

The property claimed as a homestead in this case, is described in plaintiff’s petition as: “A tract of land situated in Square No. Two, * * * town of Covington, (an incorporated town) commencing at the corner of Vermont and Rutland streets, etc., measuring 180feet, by 120 feet, and containing lots 5, 6 and 7 of said square, * * * together with all tlie buildings and improvements tliereon.”

Hence, under plaintiff’s own sworn allegations, it is absolutely certain that he claims herein, as his homestead, a piece of town or urban property.

Under repeated adjudications of this Court, the question that such property is not exempt as a homestead, under the law of 1865, has long -since been removed beyond the domain of discussion, and is .settled adversely to plaintiff in this case. 25 A. 219, Crilly vs. Sheriff, et al.; 26 A. 645, Hargrove vs. Flournoy; 28 A. 575, Roberts vs. Gordy; 31 A. 375, Singletary vs. Singletary.

Our conclusion is that plaintiff, has utterly failed to make out a case in his claim for a homestead exemption, and that the judgment of the lower court is erroneous.

As the record contains no evidence on the question of the damages claimed by defendants, we can allow none, and shall reserve their rights to demand damages in a separate action.

It is therefore ordered, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff’s injunction be dissolved, and bis action dismissed at Ms costs in both Courts, and that the right of defendants to sue for damages, on account of the injunction herein, be reserved to them.


text:
    No. 8543.
    B. T. Young vs. J. J. Bridges.
    The general denial and special defenses set up by defendant, are not inconsistent, and, therefore, evidence was properly admitted in support thereof. Affirming rule in 39 An 134.
    The lower court also correctly received evidence of the assault and battery committed by plaintiff upon defendant-, as part of tbe res gestee of a quarrel between the parties, during which the opprobrious epithets complained of by plaintiff, were used by defendant
    A juror cannot be asked on Itis voir dire, “whether or not he had any bias or prejudice • against suits of this sort," (which is an action for damages on account of slander.)
    This Court, in the opinion, reproves the nature of such a suit, which is that of a strong and young man, the son-in-law of defendant, who, after cruelly beating his father-in-law, claims §10,009 damages against him for libel.
    APPEAL from the Sixteenth Judicial District Court, Parish of St. Helena. Kernan, J.

      J. ili. Wright and TV?». Dunean, for Plaintiff and Appellant:
    Malicious slander will be punished by damages. 17 A. 64.
    Malicious slander will be punished by damages commensurate with the character of the language used. 19 A. 333.

      It is not incumbent on the plaintiff to show malice, which tbe law implies, on the part of the publisher, nor to prove injury if the charges are false» 25 A. 170.
    The law implies malice, if the false accusation be published in a newspaper. 27 A, 219»
    In an action of libel, proof of damages is not necessary to iecover. 3 A. 69; 11 A. 206 j 25 A. 174.

    Defendant is not allowed to plead the general issue and justification, but must elect and rest his defense solely on one plea or the other. 28 A. 238, 822.
    The trial of a case does not begin until after the pleadings have been read.
    Facts and circumstances occurring subsequent to the alleged slander, cannot be admitted in evidence, either to exculpate, or justify, nor to mitigate damages.

      It ia for the Supreme Court to ascertain whether the jury has rendered a proper verdict, and if not, to render such judgment as they should have done. 26 A 313; 19 A. 74 ; 27 A. 713 f 29 A. 394.

      Chas. 33. 33ea and 33. F. Russell, for Defendant and Appellee :
    1. In actions of slander the words used must be considered in their popular* sense and in relation to the idea conveyed. 2 L 577: 29 A. 134»
    2. Though slanderous words be used, if uttered in an interchange of epithets and mutual vituperation, a verdict for defendant will be justified. 9 A. 358.
    3. "When both parties are in fault plaintiff cannot recover. 10 A. 557. JSTullus commoduw eapere-potest de injuria sua propria.

      4. When a party, in a moment of aDger and irritation calls another a rogue, in reference to his unwillingness to settle a debt, and no injury results from such transient expression of angry feeling, such a case of defamation is not actionable, and plaintiff cannot recover. 15 A. 48.
    5. The verdict of a jury, in a question of damages, will not be disturbed unless manifestly erroneous. 10 A. 659 ; 28 A. 94 ; 30 A» 926.
   The opinion of the Court was delivered by

Poché, J.

In an action for defamation of character, plaintiff has taken this appeal from a verdict of the jury rejecting his demand for ten thousand dollars, damages claimed of the defendant, whom he charges to have called him a u thieving puppy and villain.”

The defense is a general denial, followed hy a special averment, alleging in substance that the language complained of was used without malice, in a moment of irritation, brought about by the attempt of plaintiff to defeat the defendant in the collection of a just debt; which resulted in an angry altercation, during which the defendant, a man of more than sixty years of age, weak and feeble in body, was cruelly beaten hy plaintiff, his son-in-law, a man of the age of 35, of great bodily strength and vigor.

Our attention is called to numerous bills of exception taken by plaintiff to adverse rulings of the District Judge, and we shall proceed to dispose of a few of his hills which present grounds apparently serious.

He moved that defendant he ordered to elect between his general denial and his special pleas, which he considered as inconsistent, and he vehemently complains of the refusal of the Judge to thus order.

The general denial specially excepted such allegations, as were subsequently admitted, and must be considered as denying tlie allegations •of malice and a wanton desire to injure plaintiff, by tlie words used, in public opinion or in tlie esteem and consideration of bis Mends and acquaintances, and is not in the least inconsistent with tlie special plea ivliicb specifies other reasons in bar of plaintiff’s right of recovery.

In the case of Hawkins vs. New Orleans Printing and Publishing Company, 29 A. 134, identical pleas were met with similar objections, and were held by the Court as perfectly consistent and easily reconcilable. These considerations dispose of plaintiff’s objections to the introduction of any testimony by defendant, in support of either of his pleas; on the ground that the general issue had been waived by the special defenses, and that the latter had not been set forth with sufficient certainty.

The District Judge was equally c.orreet in his ruling, by which he overruled plaintiff’s objections to proof of the assault and battery committed on the defendant by plaintiff. It was part of the res gestes, and showed that the whole subject matter was a personal quarrel, during which opprobrious epithets were mutually indulged in, and where angry passions culminated in an encounter in which the weaker party was severely punished by his fierce and more powerful adversary, who, in addition to a vengeance sounding in well inflicted blows, seeks to satiate his thirst for revenge by pecuniary solace to his injured feelings and his wounded honor.

While the jury was being empanelled, plaintiff asked of a. juror, on his voir dire, “ whether or not he had any bias or prejudice against suits of this kind,” to which the juror naturally answered that he had. The question having been overruled by the court, plaintiff retained a bill of exceptions. The question was properly rejected as impertinent, and not calculated to test the juror’s impartiality between the parties to the suit. A juror’s distaste for a suit for slander, growing out of a private quarrel between parties so closely connected by marriage, proves that he possesses a proper sense of delicacy and an appreciation for substantial justice, which contribute to his fitness, instead of showing his disqualification, to sit as a juror in the administration of justice.

The other bills reserved by plaintiff, and some by defendant, are not sufficiently serious to require discussion at our hands.

On the merits of the case, we find no reasons to justify our interference with the finding of the jury, whose verdicts in such cases are never disturbed by the appellate tribunals, unless glaringly unjust or manifestly erroneous.

We have read with interest, and heartily endorse the very able, exhaustive and impartial charge of the Judge, who correctly expounded the law governing such eases, to the jury.

The voluminous testimony, which we have read and maturely considered, presents in substance the following case:

Plaintiff, who was the son-in-law of the defendant, had been gradually estranged from his father-in-law since the latter’s second marriage, and had had several unpleasant difficulties with him on business matters.

On the 9th of June, 1880, they accidentally met on the road, in the presence of several neighbors, and began to discuss a difficulty of recent origin between them, in the course of which they both became angry and abusive of each other, and during which the words complained of were used by the defendant, for which he was then and there severely beaten and chastised by his muscular son-in-law. We, therefore, conclude, that under such a state of facts, the jury, wondering, like ourselves, how such a case ever found its way in the courts of the country, especially at this stage of our jurisprudence, returned a verdict which has made a correct application of our well established jurisprudence in such cases, as illustrated in numerous decisions, among which the following are strikingly in point: 2 L. 577, Trimble vs. Moore; 8 A. 130, Gielbert vs. Palmer; 9 A. 358, Fuldo vs. Caldwell; 10 A. 557, King vs. Ballard; 15 A. 48, Arieta vs. Arieta.

We cannot refrain from an expression of our regret at the appearance of such a cause on our docket, which teems with cases involving important and scientific questions of law, the decision of which will settle rights of vast magnitude, and will contrihute to settle points of great interest in our jurisprudence. Like onr learned brothers, in disposing of the case reported in 9 A. 358, we think that “it is not fit that such cases as this record presents should he brought before the courts. Better far would it have been for the credit of the parties and the cause of justice, if the matters disclosed had been permitted to remain only in the knowledge of the by-standers, than to have blazoned them on the records of the tribunals.”

In the interest of society and of peace in the State, rve indulge the hope that our learned brothers of the law profession will lend their influence to the suppression of such litigation.

The judgment appealed from is affirmed at appellant’s costs.


author: Levy, J.

text:
    No. 8517.
    Ben Gerson & Son vs. A. C. Gayle. Wheeler & Pierson, Intervenors.
    The right of defendant to his liomei-toad existed prior to the Constitution of 1879, under the law of 1865, aud was nofc impaired or affected by the provisions of tbe foimer, except as to the necessity of recording bis claim to such homestead under the requirements of the subsequent legisla! ion, with which ho complied.
    APPEAL from the Fifteenth Judicial District Court, Parish of Pointe Coupée. Yoist, J.

      ll'ewes íB Parlange, for Plaintiffs and Appellants :
    1. Persons who had not acquired homestead exemption rights at the time the present Constitution was promulgated, can only acquire and claim sacli lights under that Constitution and the statutes passed in pursuance thereof. Const. Arts. 219, 220, 221, 222; Act of April 10 I8PG, page HO.
    2. Tlio homestead act of 1865, and all other laws on that subject, were abrogated by the Constitution, and are without effect, except as to such rights which were actually acquired under those laws prior to the final promulgation of the Constitution. Ib.
    3. The Constitution, and the legislation, provided for by it, created a new law respecting such exemptions, which can have no effect upon, or application to contracts made anterior to its passage. 30 An. 1215,

      W. ÍV. Lealce, for Defendant and Appellee:
    Appeal bond must mention the title of the suit, or appeal will he dismissed. 32 A. 525.
    Homestead rights were acquired under the Constitution of 1879, from and after January 1st, 1880, and such rights are not affected by ordinary debts, created prior to the 1st January, 1880. Const. Arts. 219, 220.
    If Articles 219, 220, did not take effect until the passage of Act 114, April 10th, 1880, then the homestead act of 1865 continued in force until that date.

      Parrar & Montgomery, for Intervenors and Appellants.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs, Ben Gerson & Son, are judgment creditors of the defendant, A. C. Gayle, by virtue of a judgment in their favor, rendered by the District Court of Point Coupée Parish, on 6th of September, 1880, based on a contract of indebtedness, of 25th March, 1879, which judgment was duly recorded on the 8th of September, 1880.-They instituted this suit for the purpose of having it decreed that certain property of defendant, which they allege, is affected by and subject to their judicial mortgage, is not exempt from seizure and sale as the homestead of defendant, but that it is subject to said judgment and mortgage, and praying for an order authorizing"its seizure and sale under execution on their judgment. Wheeler and Pierson, judgment creditors of Gayle, their judgment being founded on contracts of indebtedness made in the year 1877, and said judgment having been duly recorded on the 20th of April, 1880, anterior to the registry of the judgment of Gerson & Son, intervened in this suit, adopting the allegations of Gerson & Son, contained in their petition, and their prayer to subject the property to the judicial mortgages, and praying that intervenors’judgment and mortgage be decreed, by reason of its prior registry, to have precedence over that of Gerson & Son, as against defendant, Gayle.

Defendant filed an exception of no cause of action, which was overruled, and in his answer he denied that the property is worth two thousand dollars, and alleges that he had made a registry of his homestead before plaintiff had acquired any rights or mortgage against his property.

The facts, as shown by the record, are these :

The defendant, Gayle, acquired the property on the 6th of January,' 1880, and has since continued to occupy it as his residence, and he has a wife and three minor children dependent on him for support, and his wife has no property in her own right. Defendant has no other property than that claimed as ahomestead. The value of the property is $1,200. The debt on which the judgment in favor of Ben Gerson & Son is founded, was a promissory note of Gayle, of 25th March, 1879, and the judgment was duly recorded on the 8th of September, 1880. The indebtedness to intervenors was contracted in 1877 and 1878, and the judgment thereon duly recorded on May 10th, 1880. Defendant’s declaration, which he claimed as a homestead, was made on the 10th of May, 1880, and was duly recorded on 12th May of the sanie year. This declaration purports to have been made, in accordance with Art. 114, of the 10th of April, 1880, meaning and intending to claim and enjoy all the benefits of said Act, and it is therein stated, that the appearer,” in no wise intends to Waive or abandon the rights and privileges he had under the homestead and exemption law, prior to the Constitution of 1879, but,'on the contrary,, that he intends to preserve said rights and privileges.

There was judgment in favor of defendant, rejecting the demands both of plaintiffs and intervenors, and plaintiffs and intervenors have appealed. .

Appellee has filed in this Court a motion to dismiss the appeals. The copy of the appeal bond which has been brought up under an order granted on the trial of the appeal, removes the objections as to its insufficiency, which were urged by appellee. Although not artistically drawn, yet to our minds it sufficiently designates the suit by reference to-its number, title and the court in which it was rendered. The motion to dismiss is, therefore, denied.

Plaintiffs and intervenors contend:

1. That persons who had not acquired homestead exemption rights at the time the present Constitution was promulgated, can only acquire and claim such rights under that Constitution and the Statutes passed in pursuance thereof.”

' 2. “That the homestead Aot of 1865, and all other laws on that subject, were abrogated by the Constitution of 1879, and are without effect, except as to such rights which were actually acquired under those laws, prior to the final promulgation of the Constitution.”

3. “ That the Constitution and the legislation provided for by it, created a new law respecting such exemptions, which can have no effect upon, or application to, contracts made anterior to its passage.”

The property claimed in this case as an exempted homestead was acquired on the 6th of January, 1880, subsequent to the promulgation of the Constitution.

The Articles of the Constitution on the subject of homesteads and exemptions are 219 and 220.

Art. 219 prescribes what property and to what value “ shall be exempted from seizure and sale by any process whatever,” and what shall be necessary to give validity thereto, requiring that to be valid, they “ shall be set apart and registered as shall be provided by law.” Article 220 contains the following provision: “ Laws shall be passed as early as practicable for the setting apart, valuation and registration of property claimed as a homestead. Rights to homesteads or exemptions under laws or contracts, or for debts existing at the time of the adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution or any laws passed in pursuance thereof.” It is contended and urged, therefore, that-the homestead exemption law of 1865, was repealed hy the Constitution of 1879, except as to such rights as actually existed at the time that Constitution went into effect, and that the Act of 1865, a general. Statute, containing provisions repugnant toj and inconsistent with the new law, and as the new law “ was clearly intended to prescribe the only rule that should govern in the .case provided for, it repeals the original Act.” The law required by Art. 220, was approved April 10th, 1880, and plaintiff holds that there was no law, from January 1st, to April 10th, 1880, under which defendant could acquire a homestead.

We cannot concur in the view taken by the learned counsel of plaintiff. We think the defendant falls under the exception made in the Constitutional Article: The right to this homestead exemption existed in favor of defendant, who resided on the tract of land, had a wife and children dependent upon him for support, and fulfilled all the requirements necessary to enable him to avail himself of the exemption, under the Act of 1865: The Constitution of 1879, in some respects, enlarged the homestead exemption right under. Act of 1865, by extending its operation to urban as well as rural property, and required that the legislature should thereafter pass a law for the setting- apart, registration, etc., of property claimed as a homestead. It also required that such exemptions, to be valid, shall be set apart and registered, as shall be provided by law ; and in connection with these very requirements, it provided that rights to homesteads or exemptions, under laws or contracts, or for debts existing at the time of the adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution, or any laws passed in pursuance thereof. The right to avail of the provisions of the Act of 1865, in our opinion, continued under this clause, and ivas only affected as to the manner in which it could be claimed or asserted, when the legislature, in obedience to the Constitutional mandate, enacted the necessary laws as to the registration, etc. The hiatus claimed by plaintiffs’ counsel is, to our minds, obviated by the proviso which we have above quoted.

We find no error in the judgment appealed from, and it is, therefore, affirmed at the costs of the appellants.


text:
    No. 8532.
    Mrs. Lucy A. McCutchen et al. vs. James B. Askew.
    In a suit of revival of judgment, the defendant cannot raise any defense short of the absolute nullity of the original judgment for want of citation or such other radical defoot.
    APPEAL from the Eighth Judicial District Court, Parish of Madison. jDeloney, J.

      J. 0. Seale, for Plaintiffs and Appellees.

      II. JP. Wells and J. Tyson Lane, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This is an action by the widow and heirs of William McCutclien, for the revival of a judgment rendered in his favor, and against this defendant, on the 20th of May, 1870.

In defense, it is urged that during the pendency of the original suit, a compromise had been effected between McCutclien and Askew, resulting in a full settlement of the promissory note sued on by plaintiff, who accepted, in lieu thereof, two other promissory notes; notwithstanding which settlement, the judgment now sought to be revived was rendered against him.

An inspection of the record of that suit discloses the fact that the judgment was rendered contradictorily, after answer filed by the defendant through counsel, and that the note sued on was filed in evidence.

Nothing in. the judgment or in the proceedings appears irregular or informal, or discloses any defect which might possibly he construed as an absolute nullity of said judgment.

The rule that in an action for revival of a judgment no defense short of an absolute nullity of the original judgment, for want of citation or other radical defect, can avail the defendant, is so firmly settled in our jurisprudence, that it may now ho considered as elementary, and as forming part of the Statute which provides for the prescription of judgments, and points out the mode of reviving the same.

„ The defense, urged in this proceeding, if properly substantiated, would doubtless have proved a successful bar to plaintiffs’ original demand, and it may he the. proper basis for an action in nullity; hut in a suit for revival, no matters of defense, which could or should have been set up in the original suit, can he entertained.

• The object of such a proceeding is not to strengthen or. improve the original judgment, but merely to screen it from the operation of prescription, and the judgment of revival cannot have the effect of stripping the defendant of any means of attack, by a direct action, on said judgment for nullity.

The authorities on this point are so pointed and ample, that further comment becomes unnecessary. 33 A. 342, Folger & Son vs. Slaughter, et al.; 31 A. 326, Hammett vs. Sprowl, et al.; 30 A. 1330, Marbury vs. Pace; 29 A. 69, McStea vs. Rotchford, Brown & Co.; 23 A. 173, Drogu vs. Moreau.

This defense was properly rejected by the lower court.

The judgment appealed from is, therefore, affirmed af appellant’s costs.


author: Todd, J.

text:
    No. 7222.
    J. J. McDaniel & Co. vs. L. H. Gardner & Co. and Albert Baldwin.
    An attachment having beeen set aside by the District Court, and an appeal taken from the judgment, suit was bioughfc on the bond for damages whilst the appeal was pending. Defendant, in the suit for damages pleaded prematurity. Plaintiff was then allowed by the lower court to amend and aver that since the institution, of his suit, the Supreme Court . has decided the attachment case on appeal. JZeld, that the ruling was corrects.
    The plaintiff s right s in a suit cannot be seized after subrogation, in open court, to such lights in favor of some other party.
    When an attachment is dissolved and the judgment is simply one of non-suit, the fact of the- - dissolution of the attachment is a finality, and entitles defendant to damages for a wrongfully taken attachment.
    Though an attachment is taken without malice and under legal advice, defendant is entitled to his actual damages if it is dissolved. • ■ .

      It is only for dissolving the attachment that defendant is entitled to his counsel’s fees; not for defending tbe case on it3 merits.
    APPEAL from the Sixth District Court for the Parish of Orleans. J.iightor, J.

      Mott & Kelly, for Plaintiffs and Appellants :
    1. Attachment is a harsh and severe remedy, to which resort should not he had except when actually necessary. 3 L. 18; 18 D. 587; 11 A. 438; 14 A. 832.
    2. A judgment in favor of defendant is equivalent to a decision that the attachment was wrongfully obtained, and that the principal and surety are liable on the bond. Moore vs. ■Wilbenberg, 13 A. 22; Accessory Co. vs. McCerren, ib. 214.
    3. A party whose property has been wrongfully attached can recover the damages actually sustained, even when the action is not malicious or without probable cause. Dickinson vs. Maynard, 20 A. 66.
    4. "Where an attachment is sued out in a suit against the drawer of a bill of exchange, and neither petition nor affidavit avers due protest and notice of dishonor, nor any fact or circumstance rendering presentation for acceptance and payment in due time, and due notice of dishonor to the drawer, tbe petition and affidavit do not show probable cause for the attachment.
    5. "Where, after an attachment had been sued out and levied on goods of the defendant on such showing, and the defendant, notwithstanding he had been discharged from liability as drawer of tbe draft by the laches of the holder, in not having had due protest made and notice of dishonor given, offers to pay the draft, hut the holders refuse to receive payment unless he also pays the costs of the unlawful attachment proceedings, and upon his refusal so to do, persist in the prosecution of tbe attachment suit, their conduct should be considered evidence of malice, and should subject them to vindictive damages.

      Kennard, Howe & Prentiss, for Defendants and Appellees :
    A judgment of non-suit decides nothing. Where such a judgment is rendered; in an attachment suit, the attaching creditors in defense to a suit for damages may show that the writ was legally issued. 31 A. 367.
    Where an attachment is illegally issued, but the attaching creditors acted without malice and had probable cause, they will be liable only for actual damages, and such actual damage» must be proved.
   Tlie opinion of the Court was delivered by

Todd, J.

This is a suit against tbe. principals and surety on an attachment bond.

Tbe attachment was taken out by L. H. Gardner & Co., against. J. J. McDaniel & Co., and on tbe trial of the cause, judgment was rendered against tbe plaintiffs therein of non-suit, which judgment was affirmed by this Court, on appeal.

Exceptions were filed by tbe defendants, and those requiring notice are : 1st. That tbe suit was premature. 2d. That tbe plaintiffs were without interest to prosecute the suit.

This action on tbe attachment bond was instituted before, final judgment in .the Supreme Court of tbe cause in which tbe writ issued and pending tbe appeal from tbe judgment of tbe District Court, and the defendants excepted that before the final determination of that cause, no action would lie. Thereupon, the plaintiffs amended their petition, and alleged that since the institution of this suit, the Supreme Court had affirmed the judgment, in the attachment case, thus finally' disposing of it. The court below allowed the amendment and overruled the exception of prematurity, and we think the court whs correct. Nelson vs. Poole, 17 L. 209; Warfield vs. Oliver, 23 A. 612,

The facts connected with the second exception are these:

On the 4th of April, 1876, the plaintiffs subrogated R. H. Yale and C. J. Nicholson to their rights, against the defendants in this suit, -which act of subrogation was filed in court on the 17th March, 1877, and the proper order rendered of same date, recognizing said subrogees as plaintiffs in the case.

Tim defendants, excepting, averred that this claim of J. J. McDaniel & Co., against them, had been seized at the suit of J. W. Arthur & Co., before notice of the subrogation had ever been given them, and that the interests, both of the original plaintiffs and the alleged subrogees, were divested by the seizure mentioned, and the suit should, therefore, abate.

The subrogation to Yale and Nicholson was filed in open court in this case before the attachment was issued by J. W. Arthur & Co., under which the. alleged seizure of the claim was made, the subrogation having been entered on the 17th March, as stated, and the attachment suit of Arthur & Co., not having been filed till the 5th of April thereafter. Besides, Arthur & Co. are not before the Court, asserting title to the claim under their seizure, nor is it even alleged that the claim had ever been sold under the seizure, and under these circumstances, this exception was properly overruled.

The answer of the defendant was a general denial, and a special denial of malice, and of a want of probable cause in the issuing of the attachment. There was judgment for the defendants after a jury trial, and plaintiffs have appealed.

The defendants, in the first place, deny that plaintiffs have any right of action, for the reason that the judgment in the attachment ease was one of non-suit, and that in the absence of a. judgment rejecting the demand or expressly dissolving the attachment, no action would lie on the bond, or at least the question would still remain an open one whefher the attachment rightfully issued or not. We cannot concur in this view.

The writ of attachment issued at the instance of the creditor, the goods of the debtor were seized, and the attaching creditor failed on the trial to maintain the attachment. This was equivalent to its disso.lution, and though the claim in behalf of which the aid of this conservatory writ was invoked, might, under the judgment, be again prosecuted, the judgment is conclusive as to the tact that in that suit the attachment wrongfully issued. The defendants are, therefore, liable for the damages, if any, caused by the attachment.

The evidence satisfies us that the writ was not issued in malice and in the entire absence of probable cause. The plaintiffs had bought the defendants’ goods — the plaintiffs being retail merchants in the State of Texas, and the defendants (Gardner & Co.) engaged in the wholesale business,' as merchants, in Now Orleans — and had failed to pay for them. They had given their draft for the debt on certain merchants in Shreveport, which was not paid. The draft was not seasonably protested, and there was not sufficient proof that the debtor was not entitled to protest and notice for want of funds in hand of drawees, or other cause, at least such was the conclusion of the court. The writ may have improvidently issued, but the attaching creditors may have reasonably believed that they were entitled to it, particularly as it was shown, that in resorting to the proceeding, they acted under the advice; of counsel. The plaintiffs are, however, entitled to the actual damage caused by the writ j and we shall proceed, under the evidence, to make an estimate of the damage, a task always difficult in the face of conflicting testimony, which generally attends cases of this kind.

The property attached was worth $1200. McDaniel, in his testimony, estimates it at a larger sum. After remaining under seizure for several months, it sold for $405 — a loss of $795, properly to be estimated as part of the damages. We cannot include the counsel fees, for defending the attachment suit, in the damages. No motion was made to dissolve the attachment, and the answer filed was purely a defense to the merits, and when the suit was dismissed, the attachment went with it. In such cases, only the fee exclusively for dissolving the writ can he allowed, and here there was no such exclusive or distinct service rendered. Nor can we allow the expenses alleged to have been incurred by McDaniel, for his trip from Texas to New Orleans, and the additional expenses claimed for time consumed and trouble, incurred ini preparing for the defense of the suit. It is not shown that such trip1 was necessary, and the other claim is not sufficiently definite.

There are, however, circumstances attending this case sufficiently established by the evidence, that compel us not to limit the damages; to the single item relating to the loss on the goods, as stated above. It is shown, that the defendants in the attachment were not aware, at the time the writ issued, that the draft they had given in settlement of their indebtedness to L. H. Gardner & Oo. had not been paid, and we are led to believe, that the draft was given in good faith, and with the expectation that it would be honored. As soon as the seizure was made, it is in proof that McDaniel, who was in New Orleans at the time, immediately went forward and offered to pay the attaching creditors the amount of their debt if they would pay the costs of the proceeding, which they refused to do. McDaniel testifies, that at the time, his firm was doing a prosperous business in Texas, and that in consequence of this attachment, this business was completely broken up and the firm’s credit totally destroyed, Were his testimony supported by other testimony in all particulars, we would be compelled to award plaintiffs heavy damages; but it is not corroborated as to the extent and condition of his business, and as to the direct effect of the proceeding upon it. In one particular, however, it is supported, and that is in relation to the effect of the seizure upon his credit in New Orleans, the principal point where his purchases were made ; and that was, that there his credit was greatly impaired, if not wholly ruined; and we may reasonably infer the injury to his business from this cause alone, for it is shown, that previously to this, his credit was good, and, as some merchants testified, that he could command a credit with their respective firms, to the amount of several thousand dollars.

Upon a review of the evidence, the plaintiff must have sustained a damage on this account, at the very least, to the extent of five hundred dollars. Nor is such allowance, from this cause, in the nature of exemplary or vindictive damages, as agreed by the defendant’s counsel, but may be properly classed with the actual damages caused by the proceeding under our ruling in the case of Byrne vs. Gardner & Co., 33 A. 6, and the authorities therein referred to.

Our conclusion is, therefore, that the plaintiffs have been damaged, aggregating the sums above mentioned, "to the amount of twelve hundred and ninety-five dollars, for which they are entitled to a. judgment.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that the plaintiffs, J. J. McDaniel & Co., for the use of their subrogees, R. H. Yale and C. J. Nicholson, recover of the defendants, L. H. Gardner & Co., (L. H. Gardner, Sami. L. Boyd and Jonas H. French) and Albert Baldwin, their surety ou the attachment bond, in solido, twelve hundred and ninety-five dollars, with legal interest thereon from judicial demand, and costs of suit in both Courts.


text:
    No. 8496.
    The State of Louisiana vs. Lou Young and Joseph E. Barbo.
    Newly discovered evidence tending to impeach or discredit a witness, who has testified in the case, affords no legal ground for setting aside the verdict and granting anew trial.
    APPEAL from the Eleventh Judicial District Court, Parish of Sabine. Pierson, J.

      J. 0. Fgan, Attorney General, and 1). 0. Scarborough, District Attorney, for the State, Appellee:
    1. Motions for new trials, on the ground of ne\Vly discovered evidence, will not he granted when said evidence is not material to the issue, hut is designed alone to impeach the evidence of a leading witness for the State. "Wharton’s Am. Cr. Law, 4th Ed , Sections 3184 and 3185; Archhold’s Cr. Pr. and PI., 7th Ed., p. 652, Vol. I; Hilliard on New Trials, 2d Ed., Section 19, p. 505.
    2. “ If, with the newly discovered evidence before them, the jury ought not to come to the same conclusion, then a new trial may he granted.” Wharton’s Practice, Section 3356 and 8 R. pp. 554 and 590; Archhold’s Cr. Pr. and P1-, 7th Ed., p. 651, Vol. I; Hilliard on New Trials, 2d Ed., Section 40, p 519.

      J. F. Smith, for Defendants and Appellants.
   The opinion of the Court ivas delivered by

Levy, J.

The accused were indicted for the crime of murder, were tried and convicted of manslaughter. Amotion for a now trial was made by both the accused, which was granted as to Young and denied as to Barbo. A nolle proseguí was entered as to Young, and Barbo was sentenced to imprisonment at bard labor in the State penitentiary for the term of five years. From this sentence and judgment Barbo has appealed.

The record contains no bill of exceptions, and no formal assignment of errors, and appellant relies, for a reversal of the judgment on the the alleged error of the Judge a guo, in denying the motion for a new trial. The record has no evidence in support of that motion, which is based alone on the affidavit of the accused, and sets forth that, since, the trial, he has discovered new evidence, and would, in the event of a new trial, prove by a witness, who would be then produced, that one of the witnesses on the part of the State, had, previous to the trial, made statements in regard to the case differing materially from those which he made under oath, as a witness on the trial, and that these first mentioned statements were favorable to the accused, while the last mentioned were adverse to him.

The motion is not sustained by the affidavit of the witness himself, nor is the failure to furnish it explained or accounted for, which, according to the authorities, is necessary. Besides, there is nothing to show that even if this testimony were given on the new trial, the result of the former one would bo changed. It has, too, been frequently held that newly discovered evidence, tending to impeach or discredit a witness who has testified in the case, affords no ground for setting aside a verdict, and granting a new trial.

When the object is to discredit a witness on the opposite side, the general rule is that a new trial will not be granted.” Wharton Crim. Law, (Practice) § 3354, and authorities cited in note n.

The application for a new trial on the ground of newly discovered evidence, must be corroborated by the affidavits of other persons than the accused, and if possible, those of the newly discovered witnesses themselves.” Arch. Cr. Pr. and Pl., p. 652: 8 Engl. Ark. Rep. 360; 6 Geo. 276; 10 Geo. 511; 15 Ark. 395; 7 Put. Ind. Rep. 535; 9 Ib. 264; 3 How. Miss. Rep. 422; Waterman’s Dig. p. 459.

The other ground set forth in the motion, viz : that the State failed to prove a conspiracy between the two accused parties, and by whom the fatal wound was inflicted, is wholly unsupported by the record, and was a question of fact within the province of the jury, with which we have nothing to do, especially in the absence of bills of exceptions, and we are without any right to enter into its consideration.

The judgment appealed from is affirmed.


text:
    No. 8534.
    Succession of Manuel Britto vs. Succession of Magdaleine Fabre.
    The suit of a creditor of the husband to have the transfer made by the latter to his wife, in payment of her rights, rescinded and annulled, on the ground of fraudulent simulation, <*annot he viewed in any other light than that of the revocatory action, and is prescribed in one year. Affirming previous decisions.
    APPEAL from the Fifteenth Judicial District Court, Parish-of Pointe (Jonpéc. Farrar, Judge ad hoc.

      L. 11. Claiborne and 0. 0. Frovosty,’for Plaintiff and Appellant:
    1. Where the succession is insolvent the administrator represents the creditors, and may attack, upon the ground of simulation, conveyances of property made by the deceased. See Judson, Administrator, vs. Connally, 5 An. 400. Succession Tabary, opinion on rehearing, Spencer, <T., 31 An. 417.
    2. In an action by the creditors of the husband, to have declared simulated a transfer of piopeity by the husband to the wife, in'satisfaction of her dotal or paraphernal claims, the burden is on the wife to show the reality of the claims. See Dunn vs. Woodward, 11 An. 265; Darcy & Wheeler vs. Dabenne and Wife, 30 An. 226, dissenting opinion of Spencer, J.
    3. In tlie absence of such proof the transfer will be declared to be simulated. Id.

    4. Such proof cannot be made by means of the notarial,-judicial or other admissions of the husband. C. C. 2281, and id.

      Heives db Barlange} for Defendant and Appellee:
    1. The recital in a marriage contract, that the wife brought and tho husband received a certain sum as dower, establishes a real right iu favor of the wife, against the husband and his heirs. 12 B. 304 ; 25 A. 201.
    2. Such acknowledgment of the husband gives to the wife the capacity of standing in judgment against him, that she may re-take her dower, when il is in danger. 11 X». 424.
    3. And a judgment of separation and for such dower, founded on that real right, can be assailed by creditors of tho husband by the revocatory' action only ; and such action must be brought within the year. 6 An. 87; 13 A. 10G : 27 A. 341.
    4. Aud the foregoing rules will be applied when, as in this case, it appears the rights of tho wife are assailed by one who became a mortgage creditor of tlie husband some thirty years after the registration of that marriage contract; was such a cr editor when the wife obtained judgment for bor dower and retook it by the husband conveying to her tho property so mortgaged; and that creditor (permitting his mortgage to perempt) remaiuod, for thirteen years from the execution of that judgment, silent, and then first complained when that husband and wife are both dead.
    5. In such case, it will be held against such creditor, that his own laches corroborate the correctness of the dower.
   The opinion of the Court was delivered by

Levy, J.

This suit was brought for the purpose of annulling a transfer made by Manuel Britto, husband, to his wife, Magdeleine Labre, evidenced by an authentic act, duly recorded on April 24th, 1808, of certain landed property, in satisfaction of a judgment obtained by said wife in a suit against her husband for separation of property, and the recovery of her dotal and paraphernal claims. The marriage contract, duly recorded in October, 1836, set forth that the property of the future wife consists in tlie sum of two thousand dollars, which the future husband declares having received to his satisfaction, which she hereby declares she establishes as her dower.” On 16th April, 1868, she obtained judgment for said amount, and for separation of property, and by authentic act as above mentioned, to-wit: on April 24th, 1868, this judgment was satisfied by the elation en paiement of the property described in plaintiff’s petition. In July, 1872, Joseph St. Cyr brought suit against the husband, Britto, on mortgage notes made by him in July, 1866, and recovered-judgment thereon in January, 1873. Britto died in 1873, and his wife in 1881, and both successions were opened by different administrators and this suit was instituted in July, 1881.

In his petition plaintiff alleges that the judgment and elation en paiement were collusive, fraudulent and simulated, and were resorted to for the purpose of defeating the claims of Britto’s creditors, and that the property belongs to Britto’s succession, and the prayer is that said elation en paiement be declared null and void, and the property be decreed to belong to Britto’s succession.

Defendant urges against this action the prescription of one year, holding that- it falls within the rules applicable to revocatory actions. The question is not a new one, and we find decisions of our own Court which are conclusive on this point, the application of which are decisive of the instant ease.

In Fennessy vs. Gonsoulin, 11 La. R. 424, the Court. Said: So far as the object of the present suit is to avoid the judgment recovered by the defendant against her husband, and the assignment of property to her in pursuance of it, as in fraud of plaintiff’s rights, we can regard it in no other light than as a revocatory action, by which, according to the Code, creditors may cause to be annulled any contract or transaction, so far as they may have been injured by it. Every device, contrivance or machination, by which a creditor may have been prejudiced, may •form the subject of this action. The assignment made to the wife of property, though made by the Parish Judge and experts, in conformity to the judgment, in presence and by the express consent of the parties, must be considered as essentially a contract, a elation on paiement. A contract of that description, in consideration of the dotal and paraphernal rights of the wife, is qiorhaps authorized by the Code, but like all other contracts, it is liable to be attacked as in fraud of other creditors of the husband. The action is, however, prescribed by one year, to run from the date of the judgment which the attacking creditor may have obtained. C. C. 1989, (R. C. C. 1994).” See also, Landry vs. Marchais, 6 An. 87, in which it was held (that case being similar in its main features to this) that the action should have been brought within one year from the. date of the dation on paiement; and the same doctrine is reaffirmed in Van Wickle vs. Garrett, 14 An. 106, and in Brown, Administrator, vs. Brown, in 30 An. 966.

The judgment appealed from is affirmed at costs of appellant in both Courts.


text:
    No. 8425.
    The State of Louisiana vs. Jake Schellang et al.
    The minutes of the court a qua, as transcribed in the records, show that this case was allotted to Section B of said court, in which the accused was tried. This differentiates it from the Addotto case 34 An. p. 1, and shows that the accused is not entitled, on this ground, to a new trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Luzenberg, J.

      JO. Marrero, for Appellant.

      ■T. G. JEgcm, Attorney General, for the State, Appellee.
   Tlie opinion of the Court was delivered by

Todd, J.

Tlie defendant, Jake Scliellang, was convicted of manslaughter and sentenced to five years’ imprisonment at hard labor in tlie penitentiary and a fine of one dollar, and lias appealed.

His counsel relies for the reversal of the sentence on tlie following motion made in' arrest of this judgment, which was overruled by the Judge a quo, to-wit:

“ That this Honorable Court, Section B,’ is divested of jurisdiction in this matter; that the apportionment by lot is the only proceeding that gives jurisdiction to each of the Sections of this Honorable Court, as provided for by Act 98 of the General Assembly of the State of Louisiana of 1880. * * *
“ That from the record it appears that the above entitled and numbered cause has never been apportioned by lot between the Judges of said Court as the law directs, and he hence denies tlie right of the Court, Section B, to pronounce judgment therein, and prays that the said verdict be set aside.”

We find the following entry on the minutes of the court in the record:

The grand jury having found a true bill upon the indictment herein preferred, and the same, together with the finding, having been regularly returned into open court, recorded and filed ; and the same having been allotted to Section JB of this Gourt, Thomas Griffin and Jake Scliellang were brought to the bar of tlie Court, * * * to be arraigned, etc.”

Article 130 of the Constitution of 1879, among other provisions contains this: The Criminal District Court (Parish of Orleans) shall have, criminal jurisdiction only. All prosecutions instituted in said Court shall be equally apportioned between said Judges by lot.”

The entry above quoted shows that this requirement of the Constitution was complied with; that this prosecution was allotted to flection B of the Court; and there is nothing in the entire record that impairs the force or legal effect of this entry, or weakens the presumption that the allotment was rightly made.

It is not necessary that tlie record should show the manner or process by which the allotment was made. It is sufficient that it shows it was done, and the legal presumption follows that it was rightly done.

It is true that we find copied into the counsel’s brief, certain orders of court, by which it is claimed that the prosecutions in the two Sections of the Court, including the instant one, were not apportioned between said Judges by lot; but those orders are not to be found in this record, and we have no power to go outside of the record for evidence to aid us in the determination of the case, nor have we the right to consider such alleged orders.

Tlie case of the State vs. Addotto, recently decided by this Court and not yet reported, does not, as contended, control the determination of this case, nor is it applicable to this case as the record presents it. In that case there was a motion for a new trial made after the conviction of the accused, and upon the trial of the motion, evidence was offered of the orders referred to, the effect of which was to induce the conclusion in that ease that no allotment of that prosecution, as contemplated by the Constitution, had been made. That evidence is not before the Court in this case. Here there was no motion for a new trial, but the question, substantially the same as the one presented in the Addotto case, was raised by a motion in arrest of judgment, a motion which •must be decided and which was decided upon the face of the record as it existed, and was made up from the proceedings had in the Court of the first instance.

This record, as before stated, so far from establishing that there was no allotment of the case, or that the allotment was in any manner or degree irregular, on the contrary, shows that this legal requirement was observed, and that the proceedings in every other respect were entirely regular and legal.

Whatever the real facts may be, we must decide this case upon its own record and upon the pleadings and issues that are therein presented; and a scrutiny of this record satisfies us that there is nothing therein to be found that affords the defendant any ground of relief.

The judgment and sentence are, therefore, affirmed, with costs.


author: Pochic, J. Bermudez, C. J.

text:
    No. 8407.
    State of Louisiana vs. John Davis.
    In tlie absence of timely objections from the accused, the court will not exclude evidence of a confession made by him, because preliminary proof was not offered by the prosecution to show that the confession was made freely and voluntarily, unless it appears from the evidence itself that the confession was obtained from the accused by means of promises or threats

      A PPEAL from the Twentieth Judicial District Court, Parish of Lafourche. KnoVlocli, J.

      Taylor Beattie, for the Appellant.

      E. A. O’Stillivan, District Attorney, for the State, Appellee.
   Tlie opinion of the Court was delivered by

Pochic, J.

There is no error in the judgment appealed from by defendant, who complains of the refusal of a new trial, which he had moved for on the ground that the Judge had allowed a confession of the defendant to go to the jury without preliminary proof that such confession was free and voluntary.

The record shows that the accused, being on his trial on a charge of larceny, one of the State witnesses testified that the accused had told him, in reference to the property alleged to have been stolen, and which was found in a store: “Iput it there,” and that no objection was made by counsel for the accused at that time, or at any other stage of the trial, to the admissibility of that evidence, and that the Judge gave no charge or instruction to the jury, in reference thereto. Counsel for the defendant contends that this evidence, being introduced as a confession, it was an essential condition of its introduction, that the State must first show that it was made freely, and without promise or threat, and that, in the absence of such proof, the Judge should have charged the jury that the confession, as proved, was not legal evidence, and should not be considered by them as an element of proof in the cause.

Conceding that the evidence was introduced as a confession of the accused, and that no proof was first offered to show that it was free and voluntary, we find that the question presented for solution is, whether such proof is indispensable, when the accused raises no objection to the admissibility of the evidence, and asks no charge of the Judge excluding it from the consideration of the jury, after it has been testified to.

We have carefully examined all the authorities cited by defendant’s counsel in support of his position on that point, and we find that they all, and invariably, refer to cases in which the accused had objected to the introduction of the proof of his alleged confession, or to cases where, the evidence having gone in, the accused moved for a charge or instruction of the Judge, including it as evidence in the case. State vs. Garvey and Earle, 25 A. 191; State vs. Brown, 28 A. 280; State vs. Garvey and Earle, 28 A. 927; State vs. Thomas, 30 A. 602; State vs. Johnson, 30 A. 882.

Hence, it is clear that these authorities do not in the least militate with the rule which guided the District Judge in this case, and which we consider as firmly established in criminal jurisprudence, as follows:

That in the absence of timely objection from the accused, the court will not exclude evidence of an alleged confession, because preliminary proof was not offered, on the part of the State, to show that the confession was made freely and voluntarily, unless it appear from the evidence itself that the confession -was obtained from the accused by means of promises or threats, or, in other words, that it was not voluntary.

At the instance of the accused, the court must exact proof to show the nature and the circumstances of the confession, but not otherwise.

A different ruling would have a tendency to induce the accused to take his chances of an acquittal under evidence which had been introduced without objection, and in case of conviction, to obtain a new trial, on the ground of erroneous rulings by the Judge on points not raised on the trial. The Judge who conducts the trial of a criminal case, cannot be required to champion the rights of the accused, and to anticipate pleas or objections in his behalf, on points which are not suggested by his counsel, and in proceedings which are not manifestly illegal or clearly injurious to the accused.

This question was very ably reviewed and judiciously disposed of in the case of Eberhart vs. State of Georgia, 47 Georgia, p. 608, from which we quote the following language: “But confessions are not legal evidence, standing alone. They are received in criminal cases on the same principle' as in civil. It is the right of the prisoner to object to their coming in ; but if he or his counsel fail to object, and the confessions go to the jury without any special inquiry as to the circumstances, he is not entitled, to a new trial.” See also, Waterman’s Crim. Digest, No. 221, p. 149; Roscoe’s Crim. Evidence, p. 56; Wharton’s Crim. Evidence, § 689:

Under this rule of evidence, which is recognized by highly respectable authorities, and which commends itself to the favorable consideration of the legal mind both in reason and in law, we must conclude, that the defendant, having failed to object to the introduction of the evidence of his alleged confession, having failed to require preliminary proof of the circumstances under which it was made, and having failed to ask a ruling of the court, excluding this testimony, on the ground properly sustained, that it had been illegally admitted, he cannot be heard on a motion for a new trial to raise and urge such omissions or errors on the part of the District Judge, who has made a correct application of the rule in denying him that relief.

The judgment of the lower court is, therefore, affirmed.

On Application for Rehearing.

Bermudez, C. J.

The defendant alleges, as a ground of complaint, that the principal cause assigned by him as error in the proceedings of the District Court seems not to have been passed on by this Court; that he and his counsel were led into error by the rulings of that court, previously made, that no confession could be offered or admitted, unless the State first proved affirmatively that the confession had been voluntary and free, whether objected to or not.

We differ from the distinguished counsel of the accused. The opinion heretofore delivered bears on its face the evidence of the pains which were taken to thoroughly investigate and determine the points raised on behalf of the prisoner.

We have reviewed that opinion, reconsidered the motion for a new trial, the bill of exception, the reasons, assigned by the District Judge refusing it, and cannot admit that there is any valid cause of complaint against the rulings made adversely to the defendant, who cannot, by his failure to make seasonable objection to the irregular introduction of material evidence and by his permitting it to go to the jury without asking any charge from the court, to protect him from the effect of it, run the chances of a verdict in his favor, and if against him, avail himself Cf his laches to ask a new trial.

It is useless to quote authorities in support of such an elementary proposition.

Rehearing asked is refused.


author: Bermudez, C. J. Levy, J.

text:
    No. 8293.
    F. A. Golden vs. Board of Directors of the Public Schools of New Orleans.
    The plaintiff and appellee having caused the case to be set down for trial on the summary docket, as one entitled to be tried by preference, must be deemed to have waived liis rights to a motion to dismiss the appeal on the ground that the bond given by appellant was not such as required by law.
    The teachers of the public schools of New Orleans cannot, under the law, be appointed for a longer term tlign one year.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J,

      Henry Dufilho, for Plaintiff and Appellee.

      O. F. Bucle, City Attorney, and Wynne Boyers, for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves to dismiss the appeal in this case on the sole ground that the defendants have obtained a suspensive appeal from the judgment against them, without giving bond, as required by law.

This motion was filed on the 5th of May, inst. On the 16th, following, the plaintiff and appellee, without any reserve, ordered the case to be placed on the summary docket, as one entitled to be tried on the merits, by preference, under Act 15 of 1880, which was accordingly done.

This order is equivalent to causing the case to be sot down for trial. After such action, the plaintiff and appellee must be deemed as having waived, and cannot, therefore, urge the motion to dismiss, which, therefore, abates. Tlie appellee cannot first ask a dismissal, and next, unconditionally, a trial. The two positions are inconsistent. The latter repudiates the former. 16 A. 337 •, 12 A. 745.,

The case would be different had the motion and the merits been submitted together, as is sometimes done, particularly in the country.

The motion to dismiss is refused.

Rehearing refused.

On the Merits.

Levy, J.

The plaintiff seeks to recover from the Board of Directors of the Public Schools of New Orleans, the sum of $1,248.43. He bases his demand on the following allegations: That on the 22d of October, 1877, lie was permanently elected a principal teacher of a public school in said City by said Board; that on the 10th of September, 1879, he was relieved from active duty and placed on what was called an tmassigned list, from 15th September, 1879, without pay or compensation, thereby virtually dispensing with his services as such teacher, which action, he alleges, is unauthorized by, and violative of the law. He therefore prays for judgment in his favor, for said sum of $1,248.43, amount due him as salary for thirteen months and seven days, that being the time elapsing between 15th of September, 1879, and the 22d October, 1880, at the rate of $85 per month.

Defendants, in their answer, after a general denial, specially deny that they ever made such a contract as the one averred, or that they had power to make any such contract. They further say, that the reason for placing plaintiff on the unassigned roll was two-fold: .

1. Because the school of which he had been elected principal was, in the discretion of the Board, consolidated with another school.

2. Because the plaintiff was not in the City of New Orleans to enter upon the performance of his duties at the time the schools opened in 1879, or for more than two weeks thereafter.

There was judgment in favor of plaihtiff for the amount claimed, and the defendants and City of New Orleans, the latter claiming a direct pecuniary interest in the cause, have appealed.

The record shows the facts to be, that the plaintiff was appointed under the following resolution of the Board:

“ Itesoloed, That the following named teachers in the public schools of tlie City of New Orleans are appointed, subject to a probation of three months’ service, and all those who may not be removed for cause within three months, are hereby declared permanently selected, subject to removal only on written charges and after trial and conviction by this Board, in the manner and for the causes specified by law.’’

No written, nor indeed any charges, were brought against plaintiff, nor was there any trial of him or conviction.

Prior to the day on which the schools were opened, plaintiff was placed on the unassigned list and thus deprived of employment, and although the school of which- he was principal was consolidated with another, a new teacher was appointed to take charge of the consolidated one. It is shown that plaintiff was an efficient teacher. Prior to the opening of the schools, the plaintiff had been notified that his services had not been retained, that he had been left out.

The Board of School Directors of the City of New Orleans was created by and derives its powers from the Act of the Legislature, No. 23, approved March 26th, 1877. This Act specifically defines the duties and powers of School Boards both in the-country Parishes and in the City. Sections 3 to 13, inclusive, are devoted to the definition of the duties and powers of the Parish Boards, and Sections 14 to 21, inclusive, of those of the City Board. Section 16 provides, that, in addition to the powers and duties hereinbefore granted to and imposed upon Parish Boards, the powers and duties of said Board of Directors of the City Schools shall be as- follows.” Paragraph 14 of Section 4, on the subject of the employment of teachers by the Parish Boards, enacts that no such contract, (i. e. with teachers) shall be' valid for more than one year,” and points out how such contract may be cancelled and the vacancy filled. Paragraph 4 of Section 16 provides a different mode for the selection of teachers in the City Schools, and prescribes the manner alone in which they can be removed.

We think the two Sections are not inconsistent, but that the limitation of the term of employment of all teachers is fixed at one year, the mode of their appointment and manner of removal only differing in the several localities. And the employment of city teachers thus limited to one year, they can scarcely be removed during such year for the. causes and after the proceedings which are specified in the paragraph and section above referred to.

Any other construction would, to our minds, be a forced one, creating practically a life tenure in office, which we cannot believe, from the whole tenor of the Act, constituted the will or intention of the legislature. Besides, the tenure of the members of the Board of Directors themselves is of limited duration, and if plaintiff’s construction of the law were maintained, the extraordinary and anomalous condition would exist of one board binding irrevocably the action of their successors in office in regard to the tenure of official position; and even if the number of edueable children should become insufficient for the employment of all the teachers who had been appointed, they must perforce be retained, even without any services being rendered by them, and remain an incubus upon the public. It is in evidence that it has been customary for the Board to re-organize the schools at the commencement of each scholastic term. These reasons are, to our minds, conclusive, and satisfy us that the judgment of the lower court is erroneous and should be reversed.

It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed, that plaintiff’s demand be rejected, and that he do pay the costs of both Courts.