text:
    No. 8321.
    The State of Louisiana vs. Watkin Smith.
    Alleged errors or irregularities in the drawing of jurors, cannot invalidate the panel,.unless fraud has been practiced or some great wrong committed.
    A juror, charged with an offence, such as assault and battery, not punishable by hard labor, is not incompetent.
    The appointment of the foreman and the verdict itself may both be verbal.
    The verdict being written: “guilty of mansluder," for manslaughter, is valid.
    The sentence is legal though the accused was not asked by the Court if he had any thing to say why it should not be passed. Previous Decisions affirmed.
    4 PPEAL from the Twenty-second Judicial District Court, parish of o_ St. James. Cheevers, J.

      F. B. Farhart, District Attorney, for the State, Appellee:
    There is no law requiring verdicts to be in writing. 32 A. 854 ; 8 R. 513, 518; 31 A. 96.
    PTo foreman need be appointed and verdict may be delivered orally. 31 A. 96.
    Bad orthography will not vitiate or void a verdict. 32 A. 854, 782 ; 31 A. 91.
    It is not sacramental that prisoner should be asked if he has any thing to say why sentence should not be pronounced, etc. 32 A. 855; 28 Ga. 576; 27 Mo. 324; 33 A. 991.
    Polling jury reproves doubt as to verdict. Bishop’s Criminal Procedure, vol. 1, 1003, 1004.
    There is no educational qualification for jurors or voters in this State. Section 10, Jury Law, Act 44, 1877, covers a multitude of sins of jury commissioners.

      J. L. Gaudet for Defendant and Appellant:
    Jnry commissioners should not allow the names of incompetent persons to remain in the box from which the venire is drawn, otherwise the array will be vitiated. 20 A. 356; ib. 442
    Persons charged with crime, punishable in the Penitentiary, are incompetent jurors. Act ÍTo. 54 of 1880.
    A verdict of “ mansluder " is null and void, and charges no crime known to the law.
    The incompotency of one grand juror will vitiate the whole proceedings. 8 R. 590 ; ib. 616 ; 21 A. 251.
    Before passing sentence upon an accused, the judge, in cases of felony, must ask him whether he has any thing .to say why sentence should not be passed upon him. 30 An. 326.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was indicted for the crime of murder. The jury returned a verdict of manslaughter. The judge inflicted a sentence of six months, at hard labor, in the State Penitentiary.

Appealing, the defendant claims the verdict and sentence should be set aside; because of informalities in the drawing of the jury; because the grand jury, who found a true bill, was incompetent; because the verdict is null and void ; because, before passing sentence, the judge did not ask the prisoner if he had any thing to say why sentence should not be passed on him.

1. The informalities charged in the drawing of the jury, are said to consist in the absence of recitals in the prooes verbal of the jury commissioners, to the effect,, that the clerk had been in custody of the original and general venire list; that the box, from which the jury was drawn, had been in the keeping of the clerk ; that the box had not beén opened previous to the day of drawing ; that it was opened in the presence of the commissioners, or of a majority of them; that the names of incompetent persons were placed in the box, notably, that of one Price, who was charged with the crime of arson.

It does not clearly appear that the motion was made on the first day of the term. It was the duty of the accused to have shown affirmatively that it was so made, by a transcription at least, of the clerk’s filing on it or by an extract of the minutes, with the date of the entry. We,are left to infer from the date of the action of the Court on it, that it was made the day on which it was overruled, that is, the 25th of June, 1881, necessarily after the true bill had been found and returned in open Court by the grand jury. Such things which are of signal importance to the accused, 32 A. 782, should not be left to inference.

Conceding, however, that it was made on the first day of the term, it should not prevail.

Whatever be the grounds relied upon, the motion does not contain any specific charge that “ some fraud has been practiced, or some great wrong committed in the drawing and summoning of the jury, that would work a great and irreparable injury.”

Mistakes and errors of officers entrusted with the drawing of jurors cannot invalidate the panel, except on such averment and proof in support. Act 1877, No. 44, Sec. 10; 3 Whart. Cr. L. 3378; Graham on N. T. 35; State vs. Dozier alias Lobster 33 An. 1362; 31 An. 34; 22 An. 9.

Unless thus assailed, the procés verbal cannot be attacked or explained. 31 An. 94, 388 ; 27 An. 394 ; 26 An. 580.

2. The charge cannot hold that the grand jury who found the bill was incompetent, because one Eerry, who was one of its members, was disqualified from serving, as, at the time, he was charged with an infamous crime or offense punishable by hard labor, etc., and because his incompetency vitiated the whole proceedings.

It is sufficient to say that the existence and nature of the charge is not to be ascertained from the affidavit, as seerps to be contended, bur from the indictment or information, which was simply for “ assault and battery ”, which is not punishable by hard labor.

3. The verdict of the jury is said to be null and void, because, when the jury returned into court, with their verdict, it was ascertained that the same was not written, or signed by the foreman, who could not write or sign his name, but by another member of the jury, who affixed the name of Ja Washington, to the verdict. The District Attorney asked the court to instruct the jury to choose a foreman who could write, if they wanted to render their verdict in writing, or to render it orally. Defendant having objected, the court ordered the clerk to read the verdict, which was announced in the following words : “We are the jury find Watkins guilty of mansluder”, “ Ja Washington.” The jury was then polled and separately assented to the verdict, which was ordered to be recorded accordingly.

It is true, there was no man by the name of Ja Washington on the jury, but there was one whose name was Jiles Washington, a name idem sonans and whose identity was not disputed. That irregularity would be trivial and hardly worthy of notice.

There is no law which requires the appointment of a foreman and verdicts to be in writing. Verdicts may be delivered orally. Polling the jury regularizes the proceedings. The member of the jury who wrote what was presented as the verdict and who placed to it, what was supposed to be the name of the foreman, evidently was not sufficiently educated in the orhtography of law terms to write the word “ manslaughter ” correctly, but he wrote it in such a manner as to make the verdict fully intelligible and a sufficient basis for record and judgment.

In the case of State vs. Ross, 32 An. 855, where the verdict was “ Guilty witholt capitel purnish ”, the court held that it was not illegal and approved the judgment. 32 An. 782; 8 R. 513, 518; 31 An. 91, 96, 369.

The law does not require jurors to be philologists. ' All that the law requires is their ability to appreciate the facts and to apply the law. When they have done that and expressed their sense in an intelligible and unequivocal form, the law is satisfied.

4. The last ground is untenable, that the record does not show that the accused was asked before sentence, whether he had anything to say why sentence should not be passed upon him. It does not appear that the accused asked to speak before sentence was passed.

The more recent and considerate authorities and rulings on this point are that it is not sacramental that the prisoner should be thus interrogated. 28 Ga. 576; 27 Mo. 324; therefore, that its entire omission is not fatal to the sentence. 32 An. 855; 33 An. 991.

The obiter dictum in 30 An. 326, that it is well to observe this ancient form, even if it went to the extent claimed by the appellant, could not be invoked to'outweigh those authorities and invalidate the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: DeBlanc, J. Eenner, J.

license: Public Domain

text:
    No. 7289.
    Mrs. Bertha Lewis et al. vs. Widow J. F. Pepin, Tutrix.
    An Appeal cannot be dismissed on the ground that it was taken by a tutrix,, defendant in the case, and that her wards were of age at the time and should have taken the Appeal themselves, — when the Record does not- show that said wards were made parties to the suit at their majority. . ,
    The failure of the lessor to make necessary repairs, does not afford the lessee a legal reason for not paying the rent, or sustain a claim for the damage suffered by his furniture from the had condition of the leased premises, — when the rent is sufficient to enable the said lessee to make the repairs himself. Previous Decisions affirmed. *
    This principle is equally applicable when the lessee has furnished rent notes, if they are still in the hands of the lessor.
    APPEAL from the Sixth District Oourt for the. parish of Orleans. ' Bightor, J

      B. B. Forman for Plaintiffs and Appellees.

      Chs. F. Claiborne for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

DeBlanc, J.

In July, 1868, Mrs. Bertha Lewis leased certain houses in this city from A. Rochereau & Co., as agents of the heirs of J. E. Pepin, who then resided in Prance.

According to the allegations of a petition filed in the Second District Oourt of the parish of Orleans, by the said A. Rochereau & Co., to be recognized as the agents of Mrs. Widow Pepin, in her own name and as natural tutrix of her children, the lessors of plaintiff,, those children were born — one in April, 1852, the other in April, 1855, and became of age, the oldest in 1873, the youngest in 1876.

On the 3rd of May, 1870, Mrs. Lewis brought suit to annul the lease made in 1868, and to recover damages which she charges resulted from a failure on the part of her lessors to comply with their contract.

Though they and their tutrix, were represented in this city by A. Rochereau & Co., who had been recognized as their agents by the court and by the plaintiff, the tutrix appears to have been cited to defend said suit “ by posting and through a curator ad hoc”; as to said agents, they were made parties to the instituted action for the sole purpose of enjoining them from negotiating, and compelling them to return the rent notes subscribed by and delivered to them by Mrs. Lewis as lessee.

• At the inception of this litigation, there were in court and in this case but two defendants, Mrs. Widow Pepin as tutrix, the firm of A. Boehereau & Co., as holders of the lessee’s notes. The case was tried and judgment rendered against defendant, ■ annulling the lease, and condemning defendants to pay seventeen hundred and fifty dollars and return the rent notes.

Prom that judgment a suspensive appeal was prayed for and allowed, on motion of Charles P. Claiborne, of counsel for defendant. The record contains the mention that at the trial Mr. Claiborne appeared for Mr. Bermudez, defendants’ counsel. The bond of appeal is in the name of Widow J. P. Pepin et al., and recites that: “ Whereas, the above bounded Widow J. P. Pepin, tutrix, et al., has this day filed a motion of appeal from a judgment rendered against her, etc.

Mrs. Lewis took a rule in the lower court to dismiss this appeal, on three different grounds, only one of which is now urged, and that is that the heirs of Pepin are of age and they have not appealed. To establish that they have attained the age of majority, the only evidence adduced on the trial of the rule is the petition of A. Bochereau & Co., addressed to the Second District Court, and in which the children’s age is mentioned. That rule was discharged by the District Judge, and the motion to dismiss renewed in this Court.

The heirs of Pepin were under age when this suit was brought, and it does not appear that, at any time, they were made or made i;hem-selves parties to said suit; and if, as contended, from 1876 neither of them could have been legally represented by their mother and tutrix, because at that date they alone could have stood in judgment, the validity of the decree rendered against them in 1878 would be at least questionable.

The documents to which we have been referred do not sustain the assertion that the heirs of Pepin have, since their alleged majority,appeared in court by counsel or otherwise. The defendant and the defendants therein alluded to are the tutrix and her agents, and the cause urged for the dismissal of the appeal might, if it were to prevail, extend to and affect the validity of the judgment appealed from and blot out the result of a protracted litigation.

Were the unsworn allegations of the petition of A. Bochereau <fc Co. considered as sufficient evidence of the heirs’s majority, though it is manifest that the ascertaining of their age was absolutely foreign to the object of that petition, where is the evidence that they were ever informed, either by their tutrix, or by any other, and in any way, that there was pending in one of the courts of a distant State- a suit in which they would have to file an appearance.

Was it not incumbent on plaintiff, as soon as she ascertained that those heirs were of age, to have notified them of the institution and pendency of her suit; and can she now, taking advantage of her own laches, claim the dismissal of an appeal allowed to one of the only defendants who were in court when the case begun, when it was tried and when it was decided ? C. P., 120. We think not, and, in the interest of plaintiff and defendants, the motion to dismiss is overruled.

On Application bob Rehearing.

We thought and still think questionable that a judicial admission made, not by a tutrix herself, but by her agent, and made) not in a suit actually pending against her wards, but in a previous proceeding, can, in a subsequent suit against those wards, be justly considered as the highest evidence of the fact acknowledged in the agent’s admission.

Be this as it may, the Civil Code expressly provides that a tutor administers by himself alone — Art. 351. The Code of Practice, “ that action against minors must be brought directly against their tutors — C. P. 115; and that in all suits brought in their, name, their tutors act themselves without making them parties to the actions — C. P. 109. They are sued or sue through the interventions of their tutors — C. P. 108.

The Code of Practice also provides that all suits brought against curators and other administrators (in the last mentioned class tutors are included), and brought during the time of their administration, shall, after the expiration of their time as to tutors, that is, when their wards attain the age of majority, and even after they, the curators and other •administrators, have rendered their accounts to the heirs, be continued and tried without any other formality, except that of making the heirs parties, which shall be ordered by the court on motion of any one of the parties, or on application of such heirs themselves. C. P. 120.

How, in a court of record, do we ascertain who are or have been made parties to a suit ? Is it by merely inquiring who ought to have beén cited or notified, or is it by opening the file and referring to citation and notices, if any there be, and to the returns thereon ? By what fiction of the law can those who were minors, and not in court when a suit was commenced, be presumed to be in court on the very day on which they attain their majority, though the contrary may appear ?

In “Martel vs. Richard,” what did the court hold ? That the tutor represents the minors so completely, that when he has once brought a suit for them, or answered an action against them, no further petition or answer can be required on their behalf, and the court added: That care should be taken in an action of that kind, that judgment should be rendered in favor of those heirs who have attained their majority, as well as the tutor of those who are still minors.” The court meant that a suit properly brought by the tutor for his ward may be prosecuted by the ward, as a plaintiff, after attaining his majority, without the necessity of a new citation or any change in the tutor’s pleadings, but it did not hold that a valid judgment can be rendered against a defendant who has not been cited or notified, and has not appeared.

If the court had so decided — if it had decided that the fact that, when the suit was filed, the tutor alone was in court, created, as to that suit, a tacit agency, and, by implication, empowered the tutor to continue representing his ward, after the latter had attained the age of majority, then, under the quoted authority, the appeal taken by the tutrix of defendants would be properly before us. 15 An. 598.

We have here, as -parties to this appeal, all those who appear to have been in the lower court from the inception of this suit until this appeal was granted, and no cause has been shown to justify its dismissal.

The rehearing is, therefore, refused.

On the Merits.

The opinion of the Court was delivered by

Eenner, J.

In July, 1868, plaintiff leased from defendants, through the latter’s agents, A. Bochereau & Co,, the buildings known as the Orleans Hotel, for the term of two years from October 1st following, at a stipulated rent of $2400 per annum, represented by plaintiff’s negotiable notes for $200 each, payable monthly during the whole term of the lease.

It was expressly stipulated in the lease that the lessee should “keep the premises in good order, condition and repair during said lease,” and, at its expiration, “ should deliver said premises unto the said lessors in like good order, condition and repair in which she received them, the usual decay and unavoidable causes only excepted.”

She entered upon the occupancy of the premises, and paid her rent notes to the defendants for nineteen months, up to May, 1870, when she instituted the present suit, claiming the annulment of the lease, and the cancellation and return of the five unpaid rent notes; enjoining Boehereau & Co. from parting with the possession of the notes; and demanding $7000 as damages resulting from the failure of defendants to perform their obligations as lessors. She alleges, in substance, that almost immediately after taking possession of the premises, she discovered that the roof leaked badly and did not protect the furniture; that she immediately made demand of said Bochereau & Co. to repair the roof, which they failed to do; that the roof grew worse and worse until the house became untenantable; that during every hard rain the rooms were flooded, in consequence of which her furniture had been damaged to the amount of $4500, and she had suffered a further loss of custom and profit in her business of hotel-keeping to the amount of $2500.

The defendants answer, in substance, that the premises had been delivered in good order; that plaintiff was bound, by her contract, to keep them in good repair; that, when notified that the roof needed attention, although not so bound, they sent workmen to put it in repair; that it was ascertained that the cause of its leaking was the negligence and misconduct of plaintiff and her employees in walking upon the roofs and valleys, stretching clothes-lines and hanging clothes thereon, and throwing broken bottles, rags, dirt and filth in the gutters so as to obstruct them, and cause the leakage; that even if defendants were in fault, plaintiff cannot recover damages because she had the right to make the repairs and deduct the cost from the rent. Defendants demandan reconvention, judgment for the unpaid rent-notes and $1000 as damages for injury to the house resulting from the leakage caused by her acts.

From a judgment in favor of plaintiff for $1750 damages, annulling the lease, cancelling the unpaid notes and rejecting the reconventional demands of defendants, the latter have appealed.

There seem to be several sufficient reasons why this judgment cannot be sustained:

1st. The express undertaking of plaintiff, in her lease, to keep the premises in good repair, relieved the defendants from the obligation which the law would otherwise have imposed on them, of making repairs to the roof. The stipulation that she should return the premises “ in like good order, condition and repair in which she received them ” certainly strongly suggests an implied acknowledgment that she received them in good order, condition and repair. The evidence establishes that she had occupied the premises, under a sub-lease, for several months prior to the commencement of this lease, and she should, therefore, have known its condition. There is no evidence to establish that immediately prior to, or at the time when the lease begun, the roof was in bad condition. It is proved, on the contrary, that the defendants had employed a competent workman to put the roof in repair, who had done the work and guaranteed it for twelve months.

2d. The evidence as to the cause of the leakage is extremely conflicting. It is conclusively proved that the roof was used for drying and bleaching clothes; and that slops, chamber dirt, old shoes, rags, broken bottles, a flannel shirt, an india-rubber coat and such articles were, at various times, found on the roof and in the valleys and gutters, obstructing and choking them up; and sundry-competent witnesses testify that this was a sufficient, and the actual, cause of the leaking. Plaintiff’s evidence as to the fact of leakage and as to damage is certainly complete; but it must be conceded that, as to the cause of the leakage, the testimony on her side is of the weakest character and the evidence overwhelmingly preponderates in favor of the theory of defendant, not only in the number of the witnesses on that point, but in their capacity to judge and in their opportunities of knowledge. It was essential to plaintiff’s success that she should establish with clearness and certainty, that the damage resulted from the fault of defendants and not from her own, or that of her employees and customers. This she has failed to do.

3d. The judicial construction of Art. 2694 O. C., is to the effect that the failure of the lessor to make repairs will not sustain a claim for damages by the lessee, when the rent is sufficient to enable the lessee to make them, because, in such case the lessee is authorized to make them himself and to deduct the cost from the rent. However questionable this construction might appear, as an original proposition, it is too ancient and well established to admit of disturbance at this date. 4 Rob. 428; 21 An. 714; 22 An. 292; 23 An. 59; 26 An. 384; 28 An. 903; and Lawrence vs Lelièvre, unreported, Op. Bk. No. 50, p. 57.

In the last mentioned case, it was held that the application of the doctrine was not prevented by the. circumstance that negotiable notes had been given for the rent, at least in absence of proof that the notes had been negotiated. Here it well appears that they had not been negotiated and that the plaintiff knew the fact. The notes were always paid by her to defendants’ agent, and, in some cases, she applied for, and obtained concessions on her rent, on account of bad business. She might, at any time, have prevented their negotiation by the same proceeding which she effectually used with reference to the last five notes of the series.

She claims, however, that the repairs would have exceeded the amount of rent for any single month and she was not bound to advance a greater sum. We are not satisfied that such was the fact, but, if it were, she had only to withhold payment during the period necessary to accumulate a sufficient amount of rent due; and could only hold the lessor for damages accruing during that period.

4th. Plaintiff’s conduct during the whole transaction shuts out her claim from all equitable consideration. During nineteen months, in which the enormous damage claimed by her was accumulating, she says not a word to defendants’ agents about holding them responsible therefor. On the contrary, she went regularly forward paying them the rent évery month — acts certainly inconsistent with the idea that she considered them to be indebted to her for a much larger amount. It appears, as before stated, that she even applied to them, in some cases, for concessions on her rent, on account of bad business, which were allowed. At the end of nineteen months, on the eve of the dull summer season preceding the termination of her lease, she, for the first time, springs upon the defendants a claim for damages nearly doubling the entire rental of the property for the whole two years, and claims a rescission of the lease and a cancellation of the maturing rent-notes. See Campbell vs. Miltenberger, 26 An. 72, many of the principles announced in which are strikingly applicable to this case.

While we do not hold that the payment of rent operated a legal waiver of the claim for damages, it is a circumstance strongly suggesting that she did not, during all this period, herself consider defendants her debtors for the large amount now claimed, and confirming the probability of defendants’ position that they-were not so bound.

Even after the institution of the suit, she continued to occupy the premises down to the very end of the lease; availing herself, however, in the meantime, of the pendency of the suit, to sell out her furniture, and to deprive the landlord of his lien thereon for rent.

We are constrained .to reject her claim for damages and to hold her liable for the unpaid rent.

It is, therefore, adjudged that the judgment appealed from be annulled and reversed; and it is now adjudged and decreed that plaintiff’s demands be rejected, and that defendants have judgment in reconvention against plaintiff in the sum of one thousand dollars, amount of unpaid rent notes, with five per cent per annum interest on the amount of each note from the date of its maturity; plaintiffs to pay costs of the lower court and of this appeal.

The Chief Justice recuses himself, having been of counsel.


author: Todd, J. Todd, J.

text:
    No. 7137.
    Alfred H. Hopkins et al. vs. The Succession of Mrs. Mathilde Daunoy.
    The purchaser at a tax sale, which is decreed null and void, is entitled to recover from the owner of the property such portion of the price of adjudication as went to the payment of taxes, hut not the amount of the costs, penalties and interest. 33 An. 521.
    A PPEAL from the Fourth-District Court for the parish of Orleans. XX Houston, J.
    Plaintiffs and Appellees unrepresented.

      Thos. J. Semmes for Defendant and Appellant:

      Price paid by purchaser at a tax sale, and applied to payment of taxes, may be recovered by tbe purchaser from the owner, ,even though the sale be invalid, and even though the assessment be irregular. There is a natural obligation to pay taxes for the support of the government, and, besides, our laws provide for supplemental assessments. 8 La. 502 ’ 2 R. 225 ; 16 An. 132; 12 An. 535; 29 An. 416; 32 An. 228, 1136 and 1292; 30 An. 310 and 1232; 15 Xu. 90 ; 12 An. 34 ; 25 An. 457; 5 H. S. 592.
    Property assessed as “Hopkins Plantation,” on G-entilly Road, in Eighth Representative District, composed of squares, the numbers of which are given, and also the number of arpents on both sides of G-entilly Road, the owner being dead and his heirs numerous, is properly assessed under Act Ho. 114 of 1869, and Act Ho. 42 of 1871? 26 Pa. 432; 24 Id. 337; 49 Id. 440 ; 18 Md. 1; 23 Calif. 287; 29 Id. 326.
   The opinion, of the Court was delivered by

Todd, J.

Mrs. Mathilde Daunoy, on the 3d of April, 1875, purchased at tax sale the property described in the petition.

The plaintiffs sue to annul the sale and recover the property. The defendant admitted the nullity of the tax sale, but claimed in reconvention the reimbursement to Mm"'of $2019 85, the price paid at the sale, which had been applied to the payment of taxes on the property, costs, penalties and the expenses of the sale. The sale was annulled, and the demand in reconvention rejected; and from this judgment the defendant has appealed.

From this statement it will appear that the only question for decision is, whether the reeonventional demand was properly rejected.

Though the nullity of the tax sale was admitted by the defendant, it is not pretended that the property in question was exempt from taxation, or that it was not properly subject to the taxes charged against it. The sale was annulled because of defects or irregularities in the assessments, and the proceedings taken to sell the property. The-payment made by the purchaser, at the sale, relieved the property of a charge to which it was legally subject. It inured directly to the plaintiffs’ benefit, for it saved them from the -payment of a like amount to the State — at least to the extent of the principal of the taxes. Under the laws then existing, though the assessments were illegal, the property could have been re-assessed, and the taxes collected under such reassessment. Sec. 28, Act of 1871, p. 113; Act 1869, p. 153; Stafford vs. Twitchell, 33 An. 521.

In the case last mentioned, Stafford vs. Twitchell, we recognized the justice of such a claim, and required the amount paid by the purchaser at a tax sale — which was pronounced a nullity — and applied to the taxes on the property at the time of sale, to be reimbursed to such purchaser.

The principle on which the claim rests is plainly embraced in the equitable maxim, that no one should be permitted to enrich himself at the expense of another,” and is clearly sanctioned by the Code, Art. 1965.

This right to be reimbursed cannot, however, be extended to the costs and penalties paid. They grew out of, and resulted from the illegal tax proceedings, and present no legal or equitable claim for payment. The interest, too, must be disallowed. The admission of the nullity of the sale covers the want of a legal demand or notice to pay the taxes ; and there was no legal assessment.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, so far as it decrees the nullity of the tax sale, be affirmed; and so far as it rejects the demand in- reconvention, it is annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the defendant, the Succession of Mathilde Daunoy, deceased, recover of the plaintiffs the sum of one thousand and eighty dollars, with legal interest from the 6th of May, 1876, — one-seventh of said sum and interest to be paid by each of the following named plaintiffs, to wit: Alfred H. Hopkins, Octave Hopkins, Hugh D. Hopkins, Evelyn Hopkins, widow of O. Byrd, Delphine Hopkins, wife of Edmond Durel, one-seventh jointly by the children of Henry Hopkins, deceased, as named in the petition and answer, and one-seventh jointly by the children of James Hopkins, also named in the petition and answer. The costs of the appeal to be paid by the appellees, as also the costs accruing in the lower court from the reconventional demand, the remaining costs of that court to be paid by defendant. *

On Application por Rehearing.

Todd, J.

A re-examination of the record satisfies us that an error was made in our former decree as to the amount of the principal of the taxes paid by the purchaser, Mrs. Daunoy, at the sale of the property. The amount was $1183 55, instead of $1080, stated in our former decree. This must be corrected.

It is, therefore, ordered, adjudged and decreed that our former decree be corrected and amended by condemning the plaintiffs to pay to the succession of Mrs. Mathilde Daunoy eleven hundred and eighty-three and fifty-five one hundredths dollars, with interest at the rate, and from time mentioned in said decree, to be paid in the proportions stated therein by the several plaintiffs, and as thus amended and corrected our former decree is reaffirmed. ' •


author: Bermudez, C. J.

text:
    No. 8328.
    The State ex rel. E. Buisson, et al., vs. H. L. Lazarus, Judge, et als.
    Under the provisions of Article 130 of tlie Constitution, any one of tlie five judges of the Civil District Court for the Parish of Orleans, has the power of issuing interlocutory orders, besides conservatory writs, in any cause pending in said Court, in case of absence, sickness or other disability of the judge to whom such cause was originally assigned.

      By the terms of tlie same Article of tlie Constitution, the judge to whom a cause has been assigned, hasalone the power of rendering judgment on the merits of the case. But the Constitutional direction is not one of public order, and does not strike with absolute nullity such a judgment when rendered by any other of the five judges. The parties to the suit themselves may consent that the judgment be so rendered. Therefore, a judgment rendered by another judge than the one to whom the cause was assigned, in case writs of absence or other disability of the latter, may be valid, if no timely opposition or objection is made thereto. *

    ApPLICATION for writs of Prohibition and Certiorari.

      Q. Duplantier for the Relators.

      W. JE. Murphy and Thos. J. Semmes for the Respondents :
    First — The relators are not entitled to the relief claimed, the case being appealable. C. P. 857 j State ex rel. vs. Skinner, Judge, 33 An., p. 1092; State ex rel. Debuys vs. Judge Civil District Court). 32 An 1256.
    Second — The relators have not served the notice required hy Sec. 2 of Bule XXX, of the rules of this Honorable Court to obtain their writ of Prohibition.
    Third — Belators have not filed any transcript of the proceedings in the court a qua, and the Court cannot pass on their demand.
    Fourth — The relators having acted on and sanctioned the different proceedings complained of, cannot have the same avoided by a writ of certiova/ri. C. P. Art. 864; State vs, Judge City Court, 33 An. 15.
    Fifth — Art. ?30 Constitution, in case of the absence or sickness of any one judge of the court, authorizes any other judge to issue conservatory writs or orders, etc.
    .Sixth — A judge of one of the divisions of the Civil District Court being absent from the State, or unable, from sickness or other cause, to hold court, another judge of the court can replace him during said absence. Acts of 1855, Ho. 225 (p. 317), Sec. 13; Acts of 1865, Ho. 44 (p, 82), Sec. 3; Widow J. C. St. Bornes vs. The Levee Steam Cotton Press Co., 5900 , <1876) of this Court (not reported), affirmed by this Courtin same case; 3 An. 224.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition and for a certiorari.

The complaint is, that the defendant, who is one of the recognized judges of the Civil District Court for the parish of Orleans, has usurped judicial powers, with which he was not clothed, but which were and are vested in. another judge of the same court, and that, in the prohibited exercise of the same, he has illegally made several decrees and rendered a final judgment which operate to the injury and detriment of relators.

The defenses are : the appealable character of the suit in which the defendant acted, a denial of. the usurpation charged, and a consequent vindication of the acts assailed.

We will premise that a writ of prohibition can issue, on a proper showing, in any case, whether appealable or not, at the discretion of the Court, to arrest a judicial usurpation of authority ; and that the production of the record, under the certiorari, can be dispensed with, the averments of facts in the petition not being controverted. We will add that we cannot, in an application for the last proceeding, pass upon the intrinsic correctness of the judicial acts complained of, and that we can only determine, in such a case, whether they were or not done according' to the forms prescribed by law.

After thus disembarrassing the ease, we will now proceed to consider the matter before us in one respect only, which is decisive of the •controversy.

The dominant question is : Whether one of the judges of the said court can lawfully act in the place of another judge of the same court, absent on executive leave.

For a proper determination of that novel and important question, we think it advisable to divide the inquiry, and, in so doing, to ascertain : '

I. Whether such judge can act at all, in the place of another, and if so, in what particular cases.

II. Whether he can so act by virtue of law in other cases, not specially provided for. '

III. Whether he can act in all cases by consent of parties.

1. A perusal of article 180 of the Constitution, under which the question is presented, impresses the mind with the conviction that its framers intended to provide for a speedy, full and impartial administration of justice by the courts which it creates and organizes.

The article, above all, contemplated a suppression of the opportunities for conflicts of jurisdiction or want of jurisdiction which too frequently occurred under the system of -courts previously existing in the ■parish of Orleans.

Its object was, by creating one Civil District Court o,nly, to blend all probate and civil jurisdiction, in all cases in which the matter in dispute would exceed two hundred dollars, and to provide for an equal, indiscriminate distribution by allottment and assignment of such cases among the judges composing it, in accordance with rules to be adopted to that end.

It is apparent that the Convention intended that a judge to whom •a cause would be thus allotted and assigned, should have “ exclusive control over it from its inception to its final determination; ” but, in their wisdom, its members foresaw the certainty, that a judge to whom a cause might have been thus allotted and assigned, would, at times, be either legally or physically incapacitated from passing upon it. They foresaw the cases in which a judge would have to recuse himself, would be absent, sick, or otherwise prevented from trying the cause. They foresaw besides, cases of vacancy, from any cause, and they proposed to provide for these contingencies.

They declared that, in cases of recusation and of vacancy, the cause allotted and assigned should be re-allotted and re-assigned to some other judge who, necessarily, would exercise over it the same exclusive control, which he would have had, if it had been originally allotted and assigned to him.

As to the other cases in which the disability was to be physical, whether on account of absence from the parish, or of sickness, the Convention viewed them and dealt with them as to be of short duration, omitting to provide expressly for the determination of causes on their merits, in cases of protracted sickness or absence.

The relators admit that, in the case of a temporary absence, the defendant judge would have had the right of replacing the absent judge, but they claim that he would have had the right to do so only for the purpose of issuing conservatory writs, and for none other. They conclude that, as long as the absence lasted, no order whatever could be legally made in the case, either by the defendant judge or any other j udge of the court.

We do not read the article in the same light. We do not believe that it contains any useless language or illogical and hurtful tautology. After a careful examination and mature deliberation, we find that the article wisely provides that, in case of absence from the parish of a judge, any other judge shall have power, not only to issue conservatory writs, but also to grant “ orders.”

As was well observed by the learned counsel for the relators, there exists such a vast difference between conservatory writs and interlocutory orders, that in no instance can they be assimilated or confounded.

Conservatory writs are provisional safeguards, granted at chambers and on ex parje showing. Interlocutory orders are decrees subsequently made, sometimes in the same manner, or in open court,, or contradictorily, on preliminary or incidental matters, and preparatory of the case for a decision on its merits. The power to issue the writ, when vested in a judge, implies that of dissolving it. Orders for conservatory writs are not liable to be suspended by appeal, while some of the others, likely to occasion irreparable injury, can be kept in suspense in that manner. We do not perceive that the Constitution, in article 130, uses the word “ orders ” as synonymous of “ conservatory writs.” The word is employed without any qualification or restriction, and, therefore, applies to all conservatory orders which justice may require to have made, in the course of judicial proceedings, exclusive of judgment on the merits. The provision authorizes both : the issuance of conservatory writs and the granting of conservatory orders. It, therefore, includes interlocutory orders of the nature of those made by the District Judge, and which consisted merely in rescinding an order for an injunction, owing to the insufficiency of the surety and in requiring another.

Finding, as we do, that the District Judge had the right to grant those conservatory orders, that they appear to have been made after observance of the forms of the law, we have no authority to pass upon their correctness in the proceeding for a certiorari. If the case be, as it is claimed, within our appellate jurisdiction, and those orders are brought up for review, then we will inquire into such correctness, and not otherwise.

2. Since the word “ orders ” can be so interpreted as to cover only interlocutory orders or decrees of a conservatory character, it is irresistibly clear, that the action of a judge on the merits of any cause not allotted and assigned to him, but to another, who happens to be sick or absent, is wholly unauthorized. Hence, the District Judge in this case cannot be justified in rendering the judgment of dismissal which is attacked by these proceedings.

3. The fact having arisen, however, that such judgment was rendered, the question forces itself, under considerations of public policy, whether it is absolutely or relatively null, void or voidable, and whether an enforcement of it by the judge who rendered it, would constitute such usurpation as would warrant the issuing of the prohibition asked.

It is argued that, from the fact that, in clear terms, the constitutional article under consideration provides that the judge to whom a cause shall have been allotted and assigned, shall have exclusive control' ■over it, from beginning to end, it follows that it impliedly prohibits every other judge from taking jurisdiction over it, unless in case of absence or sickness, and then only for certain purposes, and, therefore, from passing upon its merits. That is undoubtedly so; but is that bare, implied prohibition such, that individuals cannot renounce the benefit of an allotment or assignment, established in their favor, when such renunciation is not actually prohibited, when it does not affect the rights of ■others and is not contrary to public good ? We do not think it is.

In his work on the theory of nullities, Solon says : “ Dans le doute si une nullité est d’ordre public, ou de droit privé, le silence du législateur doit étre interpreté en ee sens, que la nullité n’a óté portée que dans un intérét privé. On congoit, en effet, que si elle était d’ordre public, le législateur l’aurait exprimé, ou, du moins l’aurait donnée á connaitre. Dans le doute, on. doit toujours se prononcer pour la validité de 1’acte. JSt hcec quidem interpretatio per quam actus sustinetúr, dicitur regina ■ínterperlationum.” Decius in Leg. No. 11, Cod. de Mili. Testa. Solon vol. 1. p. 12, No. 23; also p. 4, No. 7 and following paragraph.

Dunod, an author also of acknowledged distinction, says : “ Quoique la fin de la loi soit toujours l’intérét public et de la société, la vue de' cet intéretest souvent éloignée, et'la loi considere alors, en premier lieu, dans sa prohibition et dans les nullités qu’elle prononce, l’intérét des particuliers. Primario spectat utilitatem privatam et secundario, publicara.”

Toullier lays down, as a general rule, that an individual has always the right to renounce the benefit of laws which have been enacted for his benefit ; that the cases in which he cannot do so, form the excep- . tions and are confined within narrow limits. They are : 1. where the law has itself prohibited any deviation from its provisions ; 2. where the disposition is absolutely prohibitory; 3. where the law has for its foundation, some public or political cause, or the interest of third persons. See Toullier vol. 1, No. 101 to 111; also Merlin R. J. vol. Renonciation No. 1; Zachariae vol. 1, p. 64; Duranton, vol. 1, p. 25, No. 110; Marcadé, vol. 1, p. 671; Dunod Presc. 1ère Part. C. 8, p. 47; Laurent vol. 1, p. 82 et seq. Pandectes françaises. See also; 3 An. 328; 10 M. 226; 6 L. 60; 18 An. 68, 148; 33 An. 662.

Indeed the maxim of the Roman law upon which the theory and conclusions of those commentators are made to rest, is to the effect r Regula est juris antiqui, omnes licentiam habere jus quae pro se introducta sint remenuare.

Under the weight of these authorities, we consider that the nullity resulting from the rendition of a judgment, in disregard of the constitutional provision under the circumstances of this ease, is not absolute, and is, therefore, relative and curable.

A judgment is absolutely null, either, when it is rendered by a court having no jurisdiction rañone materias et persones, or having jurisdiction rations materies only, even if the parties acquiesce in it, for such consent cannot give jurisdiction. In order to determine whether the court is incompetent, the test is whether, on the face of the papers, it had jurisdiction of the subject matter and of the persons of the litigants.

If it have neither, it is incompetent. If it have not the former, it is also incompetent. If it have the-former, but not the latter, and objection was seasonably raised and overruled, it is incompetent. If it have the former and not the latter, but the parties have expressly or impliedly submitted to its powers, it is competent.

In the two first instances, the ineompetency is absolute and cannot be cured. In the third instance, it is relative and curable ; in the last instance, the competency is as absolute as where a court has jurisdiction both ratione materies and persones.

In the case of the relative ineompetency, the resulting nullity is for the benefit of individuals who can waive their objections, in advance, or ratify the act subsequently.

In cases of absolute ineompetency, or want of jurisdiction, the remedy would be a prohibition from this Court, under article 90 of the Constitution, unless, in appealable cases, parties prefer having the question of nullity determined on appeal. Judgments absolutely null on the ■ face of the papers have no bottom upon which to stand. They require no suit in nullity to be avoided, as they can be collaterally attacked. Not being susceptible of ratification, it is struck with sterility and can' produce no effect whatever.

We do not think that in testing the jurisdiction of a court, in that manner, in cases like the present one, judicial inquiry is to be extended to what intervened or not before judgment, unless on averment made and established, that valid, seasonable objection was urged and disregarded.

It is manifest that the Civil District Court, in this case, was fully competent, as a court, ratione material et personal.

The objection'of incompetency, from which the charge of usurpation of powers spring, is not levelled at the judicial power of the court, as a constitutional organization for the administration of justice, in all civil cases contemplated ; but it is directed against the right of one of its members of exercising them, who, in certain contingencies, provided by the Constitution, could have lawfully wielded all of them, independently of the will or consent of litigants amenable to the court. The contention is, that no contingency contemplated by the organic law has arisen, which has put into activity the right of the judge to exercise the powers of the court, which are dormant in him, until such contingency occurs. In other words : the objection is aimed, not at the jurisdiction of the court as a court, but at the irregularity of the mode, or illegality of the process, by which the cause appeared before the judge and was passed upon by him. It goes to the administrative power of regulation exercised by the judge, in disposing of the suit, quasi on its merits, but not really so; as he merely dismissed the proceeding, as in case of non-suit, with costs.

In the absence of any timely opposition on the part of the defendants in the action, it was illicit, but not illegal, for the District Judge to have entertained the motion to dismiss the case and to have granted it.

We do not think that the judgment so rendered is a nullity; voidable either by action or appeal, and that it is competent for this Court, in the exercise of its plenary powers 6f supervisory control over inferior courts, to prohibit the District Judge from executing the judgment by coercing the payment, by the plaintiffs,'of costs incurred by the defendants in the defense of their rights.

Our reason is: that no objection was raised by the defendants to the action of the judge, who exercised on the occasion, if not the powers of a judge de jure, at least those of a judge cle facto.

It the judgment were null, it would not be absolutely so, because rendered in disregard of a constitutional provision, prohibitory by implication, as, that provision is not one enacted exclusively for the public good and the maintenance of public order ; but is one also for the benefit of litigants, who can waive the allotment or assignment to which it . refers.

The judgment might be a nullity and the judge might be prohibited, from executing it in any manner, had it been rendered without the assent, express or implied,.of the relators, or in defiance of their solemn protest. Their inferred acquiescence is not lacking in the instant case.

If, instead of being, as it is, a mere judgment of dismissal, which passes on no issue, which pronounces neither for nor against anyone and which leaves the door open for a new proceeding, the judgment complained of were one really on the merits of a controversy, setting it at rest, it would have been such a judgment as could 'have ’acquired the force of res adjudicata, because rendered by a judge de jure and de facto, in the name of a court competent ratione materice et persones, although, perhaps, in contravention of a regulation of public concern; for it is the interest of the commonwealth that there be an end to litigation.

' The importance which the law attaches to the authority of the thing adjudged is such, that in none but clear cases will it permit that a controversy, apparently adjusted by a final judgment of competent judicial authority, be unravelled and that the differences of parties be again agitated in the forum. It is from that standpoint that the Court of Cassation of France, has twice declared, with the high authority to which civilized countries recognize that it is entitled, that the proposition is such a constant principle that it is almost axiomatic.

“ L’aucoritó qui s’attache a la chose jugóe est si absolue qu’il est interdit d’y porter atteinte alors méme que le jugement du quel elle rósulte, aurait móconnu ou violó des regles de competence, fondóes sur des motifs d’ordre public.”

J.P. 1867, 20 aout 1867, p. 1082 ; 1872, p. 973.

The Court of Cassation of Belgium has ruled in the same sense. See Pasicrisic, 1843, p. 150; 1857, p. 165; also Dalloz, 1867, 1, 376; Pasicrisic, 1836, 2, 207.

In Moses vs. Julian, 45 N. H. 53, the Supreme Court of that State has, in an elaborate and learned opinion, summed up the matter of disqualification, under fifteen different heads, among which are the following :

In cases where the statute does not make the proceedings void, parties must object before trial, or the objection will be waived. * * * Unless the statute forbids, parties may expressly waive objection, which is called in Civil and Scotch law prorogated jurisdiction. In the case of Schenly vs. Commonwealth, 36 Penn. St. p. 29, it was distinctly held that an objection which goes not to the judicial power of the court, but to the mode in which the case is brought before it, will not avail the defendant, after appearance and plea in bar.

See, also, 45 Ala. 513, Hine vs. Hussey.

It is, then, manifest and indisputable that, had the defendant judge passed upon the merits of the controversy, as raised in the petition, either by annulling the judgment and the sale attacked, or by maintaining both, the judgment thus rendered would not have been an absolute nullity on the face of the record, consisting, as it would have, of the petition, answer and judgment. «

The court was competent ratione materice et personce; the defendant judge was a judge de jure of that court, authorized to exercise all its judicial powers, and had done so.

It would not be legitimate to go behind the judgment to ascertain whether the case had been or not allotted to the judge who decided it, to determine of the validity of the judgment in such a case. We repeat that it would then have been such a judgment as could have acquired the force of res adjudicata.

The doctrine extends even to the trial of a ease by a judge defacto. One who supposes himself to be invested with office, and who, not beiDg a mere intruder or usurper,-acts in good faith as a judge, may constitute a court defacto. An objection to his authority may be made before the trial, or it will be disregarded. Call vs. State, 5 Ind. 1; State vs. Arrone, 2 Mott. & Mc. 27; State vs. Alling, 12 Ohio 16; State vs. Carroll, 38 Conn. 449; State vs. Douglass, 50 Mo. 593; Freeman on Judgments, Nos. 145-148; 22 An. 629; 26 An. 274; 28 An. 82; 32 An. 931.

In the case of State vs. Carroll, 38 Conn., to which reference is above made, and which is well considered and discussed, it was decided that, where it was provided by law that, in case of sickness or absence of a judge of a city court, a justice of the peace should be called in, to hold the court, as acting judge, during such temporary absence or sickness, and a justice was thus called in and acted, the judgments rendered by him are binding, whether the law under which the call was made, and the court held, was valid or not, because he was an officer de facto, if not de jure.

In State vs. Douglass, 50 Mo. 590, also referred to, it w s held that where one acts as a de facto judge, under a law which invests him with authority, although it be unconstitutional, he is not an intruder, and his acts, done under color of office, must be taken to be valid. See, also, 38 Mo. 327; 49 Mo. 299; 24 Ill. 184.

We do not think that the Act of 1855, No. 255, which received judicial consideration in 31 An. 224, and which made it the duty of each of the District Judges of the District Courts of New Orleans to hold the court which any one of the other judges might have been incapacitated from holding, by reason of illness or leave of absence, has survived the constitutional provision which has abolished the system of courts pre-' viously in existence in the parish of Orleans, and which has substituted to it the present organization of one Civil District Court only.

That law died away with those courts, and is, therefore, no longer in being; the more so, as it is utterly incompatible with article 130, under consideration, which confers, as we have seen, exclusive control of a -cause, throughout, to the judge to whom allotted and assigned, unless in specified cases, and, being inconsistent with the organic law, has become a lifeless form. Art. 259.

We therefore conclude that, as the relators have not seasonably objected to the trial of their case by the defendant judge, in the absence-of the judge to whom it had been allotted and assigned, their complaint comes too late, and cannot be entertained.

By ruling as we do, in a case which is one sui generis, and of which, we know of no precedent, we have placed upon the article of the Constitution under consideration a fair, logical, legal and practical construction, which vivifies and gives effect to language which was not frivolously inserted into it, and which otherwise would prove meaningless and cumbersome. It leaves the doors of justice open, in contingencies which have not been clearly provided against by any irritating clause, to bona fide litigants, desirous of a speedy adjustment of their differences.

Holding to the reverse, would be, perhaps, to overturn unnecessarily adjudications in matters of magnitude, and thereby occasion, possibly, great and irreparable damage, pecuniarily and morally, and to clog-the administration of justice on technicalities which, if recognized, would be productive of no good and fruitful of considerable and even incalculable injury.

We are relieved from the necessity of considering other defenses-urged by the defendant judge.

It is, therefore, ordered that the preliminary orders herein made be rescinded, and that the applications herein be refused, with costs.


author: Fenner, J. Todd, J.

text:
    No. 8425.
    Martin Keough, et al. vs. Colbert W. Foreman.
    In a suit to set aside a settlement of partnership, on the ground that the same was based on error, an appointment of auditors of accounts by the court is properto determine whether there have been in the settlement such errors as alleged; and Defendant, in moving to homologate the report of the auditors, waives no right of maintaining the original settle - ment.

      A long settlecf account will not he opened and disturbed unless upon clear and positive evidence that the settlement was made in error of material facts or by fraud or undue influ* ence.
    If there were error in the settlement, but the same resulted from the gross negligence of the party complaining, he is not entitled to relief.
    The fact that one of the parties to the settlement was addicted to drunkenness, will not invalidate the agreement, when it is not proved that tEfe other party took advantage of a moment of intoxication.
    Settlements are contracts.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Transferred to New Orleans by consent of parties.

      Lewis & Bro. for Plaintiffs and Appellants :
    A motion to homologate the report of experts, binds the mover to its correctness.
    It is a j udicial admission which he cannot withdraw, after the other party has accepted the issue so tendered. Gridley vs. Connor, 4 An. 416; Del Bondio vs. ET. O. Mutual Insurance Association, 28 An. 139; Bender vs. Belknap, 23 An. 764.
    In an action of settlement of a partnership, the managing partner and cashier must be charged, in his cash account, for all moneys received for the firm and credited with all moneys paid out for the firm; and if it appears upon balancing the cash account that he has paid out more than he has received, the firm must reimburse him.

      John F. King and F. F. Perrodin for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs are heirs at law of Patrick Keough, who died in 1871. From 1867 to June, 1870, Patrick Keough was engaged in a planting and commercial partnership with the defendant, C. W. Foreman ; Keough was the manager, bookkeeper and cashier of the commercial part of the business, which was that of a country store, while Foreman conducted the planting business.

Being desirous of dissolving and settling up their partnership, in 1870, each partner selected a friend, to act together, as experts, in posting the books, taking off a balance sheet, and making a statement of partnership assets and liabilities and of the accounts between the-partners, as a basis for settlement. Keough chose Thos. J. Sloan, and Foreman chose C. C. Duson. These gentlemen received from the partners the books, memoranda and papers of the firm,'and proceeded to post the books and ascertain the assets and liabilities. They consumed several weeks in their task, during which they had all needed conferences with the partners, and finally submitted the result of their labors to the parties. After a cursory examination of the experts’ report, the-partners agreed to accept it as correct, and proceeded immediately, on the very same day, to make a division in kind of the notes, accounts and other assets. There remained, under the settlement, a cash balance of about $350, due by Keough to Foreman, which the former then and there paid in cash; and both parties expressed themselves satisfied with the settlement. Keough died in the year following, and up to the time of his death he and Foreman remained friends, and ho never, directly or indirectly, intimated to Foreman any dissatisfaction with the settlement. After the settlement, the books and papers of the partnership remained in the possession of Keough, and, at his death, passed into the hands of his widow, who qualified as administratrix of his succession, and so remained until they were transferred to the heirs, the present plaintiffs, one of whom, Richard Keough, resided in the parish of St. Landry from about the time of Keough’s death. After being in possession of these documents for seven or eight years, he and his coheirs commenced proceedings to open this account only in 1878.

The first suit was brought simply for an account, which was resisted by Foreman on the ground of prior settlement. That suit was thereupon voluntarily discontinued, and the present action was brought to anntil the settlement, on the ground of errors alleged specifically, and to have a new and corrected account taken, and praying for the appointment of auditors for that purpose. To this suit defendant filed an exception that plaintiffs were estopped from alleging that there had been a settlement by their judicial allegations in their former suit that there had been no settlement. The District Court sustained the exception ; but on appeal this Court reversed the judgment and remanded the case.

Defendant then filed his answer, embracing a general denial, and then setting up specially that there had been a final settlement years ago, during the lifetime of the deceased, which was satisfactory to' both parties ; and, therefore, praying that plaintiffs’ suit be dismissed.

The court, thereafter, in compliance with the prayer of plaintiffs’ petition, appointed auditors “ to examine the accounts of the firm of Keough & Foreman, and to state the same,” etc.

These auditors, representing to the court that “ their labors had been very arduous, extending through more than a month and embracing a number of complicated books and accounts, besides the examination of witnesses,” presented their report, which exhibited a result not substantially different from the settlement which had been made between the parties themselves.

The defendant moved to homologate the report. Plaintiffs filed . opposition to its homologation. The case was tried, and the District Judge found, as stated in his reasons, that the auditors’ report was correct, and that “ in its result it agrees substantially with the report of the experts who assisted in the settlement made by the partners in 1870.” He also found from the said report, and from all the evidence, that the said settlement, made in 1870, was a final and definitive settlement between the partners, • * * and that no errors had been shown to justify its disturbance.” He, therefore, rendered judgment “ that the auditors’ report be homologated, that the said settlement, made in 1870, be recognized as final and definitive, and the suit be dismissed at plaintiffs’ costs.”

From this judgment the defendant appealed, and at our term of 1880 we remanded the cause for further proceedings, on the ground of certain rulings of the court excluding evidence offered by the plaintiffs, which we held to have beeh improperly excluded.

This lengthy recital of former proceedings herein has been given because plaintiffs strenuously contend that, by the effect thereof, both the defendant and the court are precluded from urging or considering objections to the opening of the original settlement, but must be confined to issues growing out of the auditors’ report and the opposition thereto.

We cannot sustain the correctness of this position. This being an action to set aside an acknowledged settlement, on the ground of error, of course the defendant could not set up the settlement, by way of exception, in bar of the action. _ He was compelled to set up its finality and fairness, as he has done, as a special defense, in his answer. It went, with his general denial, to the merits, and was only to be determined upon the merits. He could not prevent the appointment of auditors-by the court, nor the reception of evidence tending to establish the errors alleged. This was a proper order, in such a case — the object being two-fold, to determine whether there were such errors as justified the opening of the settlement, and, if so, to present the basis of a new account. When the auditors made their report, which substantially sustained the original settlement, at least in its result, defendant waived no right by moving to have it homologated, the effect of such homologation being to maintain the original settlement. Nor did we, in remanding the case, for the reception of evidence improperly excluded, conclude any right of any party to the cause on the final determination of the entire merits.

Such was the view taken by the District Judge, who concluded that the settlement made between the parties should not be disturbed, and rendered judgment dismissing the suit.

The following views, expressed by Chief Justice Marshall, command the ready assent of the legal mind :

” It is the right of every individual to exercise his own judgment on his own affairs, and to arrange them in such manner as his own will may dictate. Where this arrangement is made under the fair exercise of judgment, without imposition, and with a requisite knowledge of the ■subject, it is certainly conclusive, unless the arrangement be in its nature alterable at the will of the person who has made it. It is a necessary consequence of this right, that an individual who has settled his accounts with another, and arranged the transactions between them, in a manner which receives the full and free assent of his mind, has a right to consider those transactions closed, and is consequently bound so to consider them. That which might before have been a matter of controversy, is adjusted by mutual consent; and claims which might have been uncertain; are reduced to certainty. It is no objection to this adjustment that some sacrifice may have been made. The party had a right to make the sacrifice. He had a right to balance in his own mind the advantages of the settlement against its disadvantages ; and if, in his judgment, the former preponderated, no other individual has a right to say that he was mistaken, and that, therefore, transactions which he had closed shall remain open.” Brydie’s Ex’r vs. Miller, 1 Brock. 149.

Settlements are contracts, and they partake, in some measure, also of the nature of compromises. Like all other contracts, they may unquestionably be invalidated on the ground of error of fact. But what Is error of fact? In the language of our Code, “ that is called error of fact which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” C. C. Art. 1821.

To’ disturb a settlement of accounts, it is, therefore, not sufficient to show that debits were allowed which a party might perhaps have legally resisted, or that credits were excluded which might perhaps have ■been legally claimed. It is fundamentally necessary to show that the party complaining was ignorant of these facts, and that, if he had known them, his consent would have been withheld.

In this case, the party in whose behalf complaint is made, and also the friend whom he selected as his expert in the settlement, are both ■dead. Positive proof of ignorance is, therefore, impossible. If they were alive, it might be that they would prove such ignorance, but, as was said by Chief Justice Parker, in a like case, “for aught now to be known, if they were alive, they would discountenance any attempt to vacate the settlement made by them.” Farnam vs. Brooks, 9 Pick. 237.

Doubtful, or even probable, testimony is not sufficient to open a long-settled account, in absence of. proof of fraud or undue influence. McIntyre vs. Warren, 3 Abb. App. Dec. 99.

The proof must be such as to leave no doubt of the party’s ignorance. Where the subject-matter of the settlement lay peculiarly within the knowledge of the party in whose behalf complaint is made ; where he had better means of knowledge and of understanding the details. than any other person; where the business to be settled had been managed exclusively by him ; where the books, accounts and papers which formed the basis o£ the settlement were all kept and written by himself; and where, far from being deceived or imposed upon, he had, in these respects, every possible advantage over his co-partner, who was comparatively ignorant of the matters involved, it is fair to presume that he could not, without the grossest negligence, have been ignorant of the entire meaning and scope of the settlement, and that his assent to it was' not given without a full understanding of it. Facti ignorantia ita demum cuique non nocet, si non ei summa negligentiá objiciatur. Dig. lib. 22, til. 6, 1. 9.

The converse is true that where the error could only result from -the grossest negligence, the party must bear the consequences.

Such-is the doctrine of English equity. " Though a court of equity will relieve against mistake, it will not assist a man whose condition is attributable to that want of due diligence which may be fairly expected from a reasonable person.” Kerr on Fraud and Mistake, p. 407; 3 Jones Eq. 178.

Where the means of inquiry are equally open to both parties, if a mistake occur without any fraud or falsehood, no relief can be granted on account of mistake alone. Western vs. Babcock, 8 Met. 346; 1 Wood and Min. 138; 4 Md. Ch. 335; 5 R. I. 130; 8 Geo. 546; Kerr on F. and M. p. 434.

How much stronger the case where the party complaining had infinitely the best means of knowledge and of inquiry!

When the report of the experts, selected by himself and his co-partner, was presented to them, Patrick Keough either examined it or he did not.. If he examined it, he was better qualified than any other person to understand it and to detect errors, and if he thereafter consented to settle by it, we must presume he did so with full knowledge and understanding of its contents. If, on the other hand, he agreed to •settle without examining it, he was certainly guilty of the grossest negligence, which would preclude him from relief, in absence of any proof •of fraud by either his co-partner or the experts. See numerous authorities, from both the Civil and Common law, quoted in argument in Hauer vs. Foster, 9 Pick. pp. 119, 120.

Under the evidence the most probable solution appears to be that both parties, having confidence in the experts, agreed, when the report was presented to them, to accept it and settle by it, without examination. If so, this amounted to a waiver of inquiry, which would preclude relief against error unaccompanied by fraud. Kerr on P. and M. p. 415.

In such a case, the waiver of inquiry by one party would be the ■consideration of the like waiver by the other.

In the instant case, every element concurs which, in the view of equity courts, influences against the opening of settlements, such as death of parties, lapse of time, absence of fraud, superior knowledge of subject-matter by party complaining, gross negligence, and waiver of inquiry. Extensive research has failed to discover any precedent for the opening of a settlement between parties situated as these parties were, and surrounded by so many circumstances tending to its support. See 2 Barb. N. Y. 586; 2 Strobh (S. C.) Eq. 250; 66 Mo. 603; 3 Brews. (Penn.) 270; Watson vs. Bank, 22 An. 14; White vs. Gaines, 27 An. 76.

Attempt is made to strengthen the case of plaintiffs by an attempt to prove that, at the time of the settlement, Patrick Keough was incapacitated, by the effects of hard drinking, from intelligently making the same.

No degree of physical or mental imbecility, which leaves the party’s legal competency to act, is sufficient to avoid a contract or settlement with him. Farnam vs. Brooks, 9 Pick. 212.

Mere weakness of mind alone, in absence of imposition or fraud, forms no ground of avoidance. 1 Bland (Md.) 370; 2 Bush (Ky.) 598; 1 Treadw. (S. C.) 448; 3 Edw. (N. Y.) 36; 2 Ired. Eq. (N. C.) 456.

The fact that a man possessed of reason and the power of reflection, is frequently and even daily intoxicated, will not invalidate a contract by him, with a person who is not proved to have taken advantage of a period of intoxication. 2 Har. and J. (Md.) 421.

The evidence establishes that Keough was a hard drinker, but there is no sufficient proof that the habit had, at the date of this settlement, incapacitated him from attending to business, and it is fully proved that he was sober and in possession of all his faculties at the time of the settlement. ,

In conclusion, we would say that, even if some of the powerful objections to the annulling of this settlement were wanting, tne errors complained of and the evidence in their support are of a character which leave our minds in grave doubt as to whether the settlement attacked may not have been, intrinsically, a just and fair one. The surcharges and falsifications claimed might well be explained or counterbalanced upon not unreasonable theories, as exhibited in the able •opinion of the judge a quo.

Judgment affirmed at cost of appellants.

Dissenting Opinion.

Todd, J.

Having made á thorough examination of all the evidence bearing upon the parnership settlement of Keough & Foreman, and that evidence being the identical evidence which was before the experts selected by the parties to make the settlement, and subsequently placed before the auditors, I am entirely satisfied that, both the experts and auditors made serious mistakes to the prejudice of Keough in their respective reports. In point of fact, it is clear to my mind, as clear as an arithmetical calculation can make it, that at the dissolution of the partnership of Keough & Foreman, instead of Keough owing Eoreman the amount or balance reported by the experts, Eoreman was at the time indebted to Keough in a much larger sum. My conclusion on this point would not be so positive were it not that the same evidence — all the sources of information — -were before me, and examined by me, upon which the previous investigations were had and reports made. I have commenced at the same starting point where the experts began, traveled with them over the same sources of investigation, and reviewed their methods and calculations, and have discovered their errors, some of which are, indeed, apparent on the very face of' their report. Being firmly convinced, as a matter of fact, that the experts made serious mistakes, and presented to the parties an incorrect statement and a false balance touching their partnership affairs and liabilities, and that in accordance with such statement Keough paid to Eoreman something that he really did not owe him, under the belief that the settlement was just and that he did owe. the balance thus paid ; in other words, being fully satisfied that the experts were in error in reporting a balance against Keough, and Keough equally in error in paying that incorrect balance, I cannot yield, in the face of such conviction of fact, to tbe legal propositions advanced in the majority opinion, by the effect of which, as construed, a court of justice is powerless to correct the error and right the party wronged by it, even under circumstances as viewed and’ detailed in that opinion. If Keough and Foreman had made the settlement themselves without the help or interposition of third persons, and' in that settlement a grave error had been committed to the prejudice of either party, I cannot doubt but that the party injured would have the right to correct the error, and if he failed to do it in his lifetime, or even-to discover it, that his right of action to do so would survive to bis heirs or legal representatives. And I cannot see that it would make .the-slightest difference if, instead of making the settlement themselves, they accepted a false or erroneous plan of settlement prepared by others, and a plan false and erroneous through the mistakes and blunders of these agents. In both cases we must presume that the parties madé or accepted the settlement, and-carried it out under the honest belief that the settlement was just and correct. If that bélief was unfounded, and the plan of settlement in truth was vicious and unjust, then, in either case, the act of making the settlement, or accepting that made by others-, was done “from a mistaken belief in the existence of that which had none,” and thus fills literally the textual definition of error under the article of the Code quoted in the majority opinion — C. C. 1821. I fail to recognize the distinction between settlements made, even in the manner this was made, and other kinds of contracts, conventions and agreements. They are all equally subject to impeachment and attack on account of fraud or error, and equally vitiated by such causes. Nor do I see that confidence and absolute trust in the honesty and skill of those employed to make a partnership settlement and a prompt and ready acceptance of the plan of settlement growing out of such confidence, impairs or detracts from the right of a party injured by it to make complaint, nor can such acceptance, in my opinion, be reasonably styled negligence on the part of one possessing or exercising such faith and placing such reliance on others, and a negligence, too, so grave as to ■deprive a party of all right of action on the ground of error. The vital question after all, in all such matters, is, whether the error exists ; and to me it seems of little import whether a party fell into that error from •an excessive or blin 1 confidence in his own judgment and skill, or in that of others employed by him. It does not seem to me sufficient ■cause for a charge of fault or negligence in either case, or in any manner affects the principle which invalidates agreements on account of ■error or impairs the right of action respecting the same. I believe all the above propostions are fully sustained by authority. C. C. 1881, 1882; 6 L. 204, 711; 9 R. 119; 11 An. 639; 1 Brock, 147; 3 Watts & S. (Pa.) 109; 18 N. Y. 285; 10 Humph. (Tenn) 238; 37 Ill., 512; 17 Ver. 615.

There is another circumstance, I must confess, that has had considerable weight with me on this point. I am satisfied from the evidence that, at the time this settlement was made and accepted, Keough from habitual drunkenness of long standing accompanied, at times, with attacks of delirium tremens, was utterly incapacitated from making an examination of the statement in the plan of settlement, or of the accounts on which it was based, or of giving an intelligent, legal or valid consent to the transaction. He was in my view of the evidence, a mental wreck at the time, and so remained until his death — though there was no design on the part of the defendant or the parties making the settlement to practice on his weakness. They were all alike in error. The papers prepared by the experts for this settlement, on the face of them, afford to my mind evidence of the incapacity of Keough in accepting them. A business man or an accountant — as Keough was ■claimed to be — might have easily discovered from an inspection of the papers, some at least, the gross errors they contained.

There is another view of this case which in my opinion renders the reasoning on the subject of the effect of this settlement and touching the right to reopen it — to which the majority opinion is mainly confined —out of place, and unnecessary to a proper determination of the case. It is this : The suit is to annul a partnership settlement. The petition contained a prayer for the appointment of auditors. The court appointed the auditors, it must be presumed with the tacit consent of the defendant, as he did not oppose the appointment. The order of the judge, directing the duties of the auditors, did not confine them to a review or re-examination of the previous settlement to ascertain whether It was correct or not, but required them to investigate the account of the partnership and report a new settlement, of the same as if the action was exclusively for the settlement of the partnership, as will be seen from the order, which is as follows :

“ Auditors be appointed to examine the accounts of Patrick Keough and Culbert W. Foreman with each other, and in connection with the firm of Keough & Foreman, and to state the accounts with precision and minuteness, so as to enable the Court to judge whether said auditors .act properly in rejecting the articles in the account. It is further ordered that the books, papers, accounts, documents, in the said cause be placed in the possession of the said auditors, and C. C. Swayze having been.chosen by plaintiffs, and Edward P. Veazie having been chosen by 4he defendants, are appointed as said auditors; and it is further ordered ■that P. J. Lefebvre be appointed to act as umpire, in case the two should ■not agree, ***** and that they make their report on or before the next term of court.”

No reference is made in that order to the previous settlement. It seems to me, if defendant or his counsel had entertained the views shown in the reasoning of the majority opinion regarding the immunity •of the previous settlement, and its finality and conclusiveness from the facts attending it and so construed their rights with reference thereto, that they would have opposed any inquiry into the partnership accounts and insisted that the entire subject was closed and sealed by the previous settlement, and objected to the appointment of the auditors, and especially to the scope of the order defining their powers, and continued their opposition by objecting to the report when made or returned into court by the auditors. Instead of doing so, however, they tacitly acquiesced in the order as stated, and when the report was made, which really was, ■and purported to be, a settlement of the partnership, and in no manner based upon or even alluding to the previous settlement, so far from moving its rejection and standing on the old settlement attacked and ■insisting on an immunity for it, they moved the adoption of the report.

The plaintiffs filed their opposition to the report, and the entire proceeding and evidence in the lower court was confined and narrowed •down to the correctness vel non of the report. Whatever might have been the character of the action of the defence originally, they were supplanted and fixed by these subsequent acts and pleadings; and the question of the facts relating to this partnership' and its settlement, raised in part by the acts and pleadings of the defendant, was thus thrust upon the court, which could only thereafter legitimately direct its attention to the ascertainment whether this auditors’’report was correct ox not. This really remained as the main, if not the sole, matter of in-' quiry under the pleadings, and was the real issue tried in the- court below. I have devoted my attention assiduously to that inquiry, and would never have departed from it except to follow the tone of reasoning adopted by the majority opinion and the questions raised therein, and the result of it has confirmed me in the opinion above expressed, that Foreman was indebted to Keough, and not Keough to Foreman at the dissolution of the partnership. Of this I have not a doubt, and could state the amount of that indebtedness, but it is unnecessary. The auditors’ report is, to some exteDt, free from the blunders made by the experts, but does contain some material errors which I think should be corrected, and which, if corrected, would show a considerable balance against the defendant instead of one in his'fa-vor. A simple inspection of the two reports of the experts and auditors, and of their different and even conflicting methods of computation and statements, should, in my opinion satisfy any one that the similarity of the result reached by each, argues nothing in favor of either, but must be set down as a mere accidental coincidence.

For these reasons, I am constrained to dissent from' the conclusions reached by the majority of the Court.