text:
    Claire Cailleteau, Tutrix, v. Louis Ingouf, Administrator.
    The validity of a judgment confirming tho mother as natural tutrix of her minor children, cannot ho called in question collaterally.
    PPEAL from the Distinct Court of the Parish of Avoyelles, Cullom, J.

      ±Y Hitchborn <6 Barbin, for plaintiff and appellant. II. & S. L. Taylor, for defendant.
   Vooriiies, J.

The plaintiff, claiming to be the natural tutrix of her child, Irene Ingouf, the sole heir of Dominique Ingouf, deceased, took a rule upon the administrator of his succession to compel him to file an account of his administration.

The administrator excepted to the plaintiff’s demand, on the ground that she was not the tutrix of her child, as she alleged; but that she had forfeited that right by contracting a second marriage, without the assent of a family meeting.

It appears that she obtained a divorce from her first husband, Dominique In-govf, on the 19th day of October, A. D. 1854, the judgment giving her the exclusive care, control and superintendence of her infant daughter, Irene, the issue of their marriage. On the 23d day of December of the same year, she was married to Alfred Broutin. Several months having elapsed, Dominique Ingouf, her first husband, died; and she then was confirmed, and qualified as the natural tu-trix of her child, Irene.

The question to be decided is, whether these proceedings are absolutely null and void; and whether they can be enquired into collaterally by the administrator in this instance.

The Civil Code says that, “ After the dissolution of marriage by the death of cither husband or wife, the tutorship of the minor children belongs of right to the surviving mother or father : that is what is called tutorship by nature.” C. C. 268. By the preceding Article the father is, during the marriage, the administrator of the minor’s property. But it is only in case the marriage is dissolved by the death of one of the spouses, that natural tutorship takes place. When the dissolution is the result of a judgment of divorce, neither the father nor mother can claim the natural tutorship, because the Code has provided specially for that contingency. Article 153 reads : “ In all cases of separation, the children shall be placed under the care of the party who shall have obtained the separation, unless the Judge shall, for the greater advantage of the children, and with the advice of the meeting of the family, order that some or all of them should be intrusted to the care of the other party.”

In the case of Acosta v. Robin, this court said : “ But, in our judgment, there can be no tutor to a child, while the father and mother are alive. The first law of the 16th title of the 6th Partida declares tutela, in Latin, to be tbat guardianship which is given over minor orphan children, not minors alone, as stated in Moreau & Carleton’s translation of the law.Our Code declares tutorship by nature to be, the right of the surviving father, or mother, on the dissolution of the marriage by the death of one of them, to be tutor of the children. It contemplates the father to act in another character during' the marriage, and calls him the administrator of the estate of his minor children.” 7 N. S., 387, Acosta v. Robin; Paillete on Code Napoleon, Art. 389 ; Toullier, vol. 2, liv. 1, tit. 10, No. 1090 ; 12 R. R., 172.

There is no special provision in the Civil Code, as to the tutorship of minor’s from the time of the dissolution of marriage by divorce ; indeed, the Code provides simply for the action of separation, and not of divorce as now known, although Article 133 says that “ the bond of matrimony is dissolved by a divorce legally obtained.” But then it goes on to state that, “ separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again ; but it puts an end to their conjugal cohabitation and to the common concerns which existed between them.” That is what the Civil Code meant by the term divorce. By a subsequent Act of the Legislature, this matter was more minutely provided for, and the distinction between the effects of separation and divorce laid down, so that now the judgment of divorce dissolves the bonds of matrimony, leaving the spouses at liberty to marry again. Acts 1827, p. 130.

The case before us could not have arisen under the provisions of the Civil Code, because the plaintiff would not have been at liberty to marry again before the death of her first husband. The forfeiture of the right of tutorship declared in Article 272 O. C., had no possible reference to a ease where the second marriage was contracted at a time when both father and mother were alive, and neither could be appointed natural tutor or tutrix. The plaintiff, under the Act of the Legislature, had the undoubted right to marry again, after being divorced from her first husband; yet her right to the natural tutorship could not accrue before his demise: hence, she could not be required to pursue the idle ceremony of procuring the advice of a family- meeting “ for the purpose of deciding whether she should remain tutrix ” — hence, her failure to do so did not deprive her ipso facto of the tutorship.

It is not necessary to decide whether, after the death of her first husband, the plaintiff in order to be confirmed as natural tutrix, should have first convoked a family meeting. She now holds the appointment of tutrix by a judgment rendered since the death of her first husband, and as such she has qualified. It is clear that the defendant cannot question collaterally the validity of this judgment. The fact that he is the minor’s grand-father may enable him to enquire into the merits of these proceedings, with the view of provoking the appointment of another tutor, or his own appointment, to represent this minor; but, conceding his right to assail these proceedings for that purpose, and to avail himself of the alleged forfeiture of the right of tutorship by the plaintiff it does not follow that he has the right to disregard'the action of the court in this respect, and to resist collaterally its effects, for the purpose of withholding- the rendition of an account of his administration.

It is, therefore, ordered and decreed, that the judgment of the District Oourt be avoided and reversed, and that this case be remanded for further proceedings; the appellee paying the costs of appeal.


source: Caselaw Access Project

author: Voorhies, J. "Voorhies, J.

license: Public Domain

text:
    Josephine M. Lewis and Husband v. Heirs of Mrs. E. R. Williams.
    A legacy of $15,000 was made "by the testatrix E. JR. W. to the minor children of her son J. W. Tho legacy vested by the testatrix’s death while the father and mother of the minors were both living, anda contract was entered into between the father of the minors and one of the forced heirs, who had bought out the whole estate, by which a term of ten years was accorded to the heir to pay the legacy due to the minors, on his obligation to pay the amount with 8 per cent, interest, payable semiannually, secured by a mortgage. Held: That the children of J. W. on becoming of age or being emancipated were not divested of their rights by a settlement so made, and could exercise their olaims against the succession of E. JR. W. unless they chose to avail themselves of the stipulations contained in the settlement with their father.
    A legatee who is not a forced heir cannot demand collation, nor even if made derive any benefit from it in settling his rights as legatee under the will.
    from the District Oourt of the Parish of Rapides, Cullom, J.

      J. C. & E. T. Lewis, for plaintiff and appellant. /. K. Elgee, for defendant.
   Voorhies, J.

The parties litigant are the children and grandchildren, heirs and legatees of the deceased, E. R. Williams. The present controversy grows out of her will, which reads as follows:

“ I make this my following- olographic will:

I wish, of course, all my just debts to be paid, and I wish the whole of my estate I own, or may own at the day of my death, I do dispose of the same in the following manner.

1st. I give to Mrs. Maria Johnson, fifteen thousand dollars.

2d. I give to my grand-children, Josephine, Archibald P., Charles B., Annette, Elizabeth, Pintará Davidson, children of Josiah P. Williams, fifteen thousand dollars, to be divided among them or their survivors.

3d. I give my son John R. Williams, thirty thousand dollars.

4th. I give to my daughter Mrs. Frances Chambers, fifteen thousand dollars.

5th. I give to my daughter Laura Williams Maddox, forty thousand dollars.

6th. I wish it understood distinctly that all the property that I do not specially donate hereinafter, that I may own at the day of my death, shall go to my four heirs at law.

7th. Maria Johnson, John R. Williams, Frances Chambers and Laura Maddox, each one-fifth, and in the event of their or either of them, not being alive at the time of my death, to the children of such as may at that time be living, such grandchildren or child, taking together the portion his or their parent would have taken.

8th. And the other residuary one-fifth of my estate, I give to Josephine Maria Williams, Archibald P. Williams, Charles Bushnell Williams, Annette Williams, Elizabeth Williams, Pintará Davidson Williams, they being the children of my son Josiah P. Williams.

9th. This residue fifth is to be divided among those of the above six children who may be alive at the time of my death.

10th. And I further desire that if there are any other children born to my son Josiah, and who may be alive at the time of my death, that they shall also equally participate in the said residue of one-fifth of my estate with those who may be alive, share and share alike between them all.

11th. I give to my' three daughters, Mrs. Johnson, Mrs. Chambers and Mrs. Maddox, all my household furniture and effects and kitchen furniture, and all my silver and plate, and wardrobe, except my watch, which I give to my daughter, Mrs'. Chambers.

12th. I give to my son John R. Williams, any four of the horses or mares I may own at the day of my death that he may choose to select.

These two last donations, No.’s 11 and 12, are intended to be particular donations, and not to be valued or included in estimating the residuary portion of my estate, which is to be divided under articles 6, 7, 8, 9 and 10, above.

Signed, ELIZABETH R. WILLIAMS.”

The plaintiff, Josephine Lewis, a legatee under the 2d and 8th clauses of this will, sues to recover her share in the legacy of $15,000, and in the residuary one-fifth of the estate. For this purpose she has made all the heirs and legatees parties to this suit, in which she demands a partition of the estate of the testatrix.

It appears that after the demise of the testatrix, the estate being largely involved, and all the forced heirs being of age, extra judicial settlements were made between them, so that ultimately the whole estate vested in .7. R Williams, one of the heirs.

The plaintiff, with her brothers and sisters, although not forced heirs of their grandmother, were nevertleless legatees, not only of the stated sum of $15,000, but also of the residuary interest or portion of the estate, after the payment made of all debts and previous legacies. Being minors, they could not be dives, ted of their rights in the succession by the extra judicial acts of the forced heirs. Their rights are residuary, it is true; but that residuum must be astertained by process of law in order to bind these minors. This has not been done. The agreements and settlements made between J. R. Williams, however binding they may be as between the parties, cannot prejudice the rights of the plaintiff, and of her brothers and sisters.

J. K. Elgee, for re-hearing:

Three distinct and separate issues are presented to the court by the pleadings, non.e of which the court say can they decide upon till all the preliminaries for making a partition have been pursued.

First. The plaintiff, as a particular legatee, under the will of Mrs. E. R. Williams, claims from the defendants, her heirs, the sum of twenty-five hundred dollars ; the amount and validity of the legacy is not traversed, but the defendants say, that whilst the plaintiff was as yet unmarried and a minor, this sum of twenty-five hundred dollars was paid to the father and mother, that the payment was a good and valid one, because the father was the administrator of the plaintiff’s property at the time. 0. C. Art. 265. And because the father and the mother had, by law, the usufruct thereof. See C. C. Art. 239. They therefore deny the plaintiff's action as against them, saying that she should apply to her father first, and call upon him to render an account. If the payment to the father was in violation of law, then the defendants may have to pay the money over again, but that point can now be decided, and does in no manner depend on a partition of the estate; it may be replied, that no proof of payment was offered, which perhaps, is itself true as regards the whole legacy of fifteen thousand dollars, but it is shown that the father and mother have been paid by defendants an amount much larger than the claim of the plaintiff, and that as regards the brothers and sisters they are not before the court either as plaintiffs or defendants on this point; further, if the legacy was loaned out by the father, he acted conformably to law, for he was entitled to the usufruct of the legacy. 0. 0. 239. And that usufruct was interest. 0. 0. 536, 531. He was bound by law to lend it (the legacy) when received, on interest, and to take security. See 0. G. Art. 556. He has done so, and therefore the issue was fully and fairly presented to the court: 1st, whether the plaintiff, an emancipated minor, was not bound to call upon her father for payment before calling upon defendants; and 2d, whether the settlement of the legacy made by the father with the defendants could be on any ground attached collaterally. It is reasonable to ask that these questions be disposed of before we arrive at the point of partition, for until it is decided, it will be a contest for the money, one party asking and claiming- it, the other averring it has been paid, or otherwise settled, with a party legally authorized at the time to make the settlement. If the estate were sold and the money in court, we should be compelled, before division, to ask this tribunal to decide this issue.

Second. The plaintiff alleges that certain legacies made by the testatrix to her children are null and void, “ because not specially stated to be, over and above their legitime, nor as an anvantage over the other heirs.” She further alleges that the will contains no other legal dispositions than those made in her favor, and in that of her brothers and sisters; ” these allegations are again traversed by the defendants, and the question is fully and fairly presented to the court, whether the legacies are good and valid or null and void. On this point it is not necessary to wait for a decision until the estate is ready for partition, if there be not enough to pay them, who is to complain, not the plaintiff, nor her bothers and sisters, for her legacy and theirs has been paid to her and their father and mother, but what I presume the plaintiff no/less than the defendant desire to have the decision of the court on is, are the legacies given to Maria, Frances, Laura and John, amounting to $100,000, good and valid in law. If the estate is insufficient to pay the whole, then a ratable deduction must be made; but the court will see, as in the first issue, that if the estate were already sold, and the money before the court, no partition of much or little could be made until the court decided whether Mrs. Williams had legally and validly given to her children the particular legacies. We should be then, exactly where we are now.

It is necessary, for the purpose of enabling the court to decide the issues raised by the pleadings, that this case be remanded to the District Court, for the purpose of proceeding to a partition of the estate of Mrs. Elizabeth, R. Williams, deceased, in the mode pointed out by law.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for further proceedings in accordance with the views above expressed, the appellees paying the costs of appeal.

Third. Residuum or not, I admit that before it can be decided positively and beyond the shade of a doubt, whether there be a residuum it may become necessary to sell the whole estate, but that necessity may be removed by this court deciding now whether the legacies made by Mrs. Williams to her children, are good and valid, not in amount, but, had she a right to make these legacies, supposing her estate to be amply sufficient to meet them ; for it may be, that when the plaintiff is informed that these lagacies must first be paid in full, before we can say there is a residuum, that she, her brothers and sisters, will desist from pursuing a shadow which can be of no profit to them, and must cause immense loss and inconvenience to the defendants.

Has the plaintiff instituted her action for her proportion of the $15,000 legacy, correctly against the defendants, when it is shown that she is still a minor ; and whilst yet a minor and unmarried, her father being her administrator, did settle and adjust the said legacy, its payment, &c, with defendants ? Has she brought her action correctly, when the evidence discloses that the father has received from defendants in money, an amount far exceeding plaintiff’s claim ?

Had she a right to attack collaterally her fathers acts, if injurious to her, ought she not to have first called upon him to render an account, and then failing in her pursuit there, might she not have adopted the direct action ?

Has the father, during the marriage, the right to receive and enjoy the use of money belonging to his minor children, whilst they are minors or not emancipated ?

If the father has so received the money of his children, is he not bound by law to lend it on interest and with security ?

Has not the father of plaintiff during her minority, and before her marriage in effect, loaned the plaintiff’s money out on good interest ?

If the lending was illegal, then has not the father received money on account of the legacy due his daughter, and must he not account for the same to her ? In fine, has the plaintiff shown, as she was bound to do, that she had asked her father and administrator for her money, and that he could not, or would not pay it ?

The appellees further pray for a decision on the issue as to the legality and validity of the particular legacies made by Mrs. E. R. Williams, to her children.

"Voorhies, J.

We have ordered this case to be remanded for the purpose of enabling the plaintiff to recover her portion in the succession of Mrs. E. R. Williams, deceased; and, in so doing, did not conceive that there could be any doubt or difficulty in the way of ascertaining the amount coming to her. As she is merely a legatee under the will, and by no means one of the legal heirs of the deceased, her rights are to be ascertained under the will itself. So that, after deducting from the property left by the testatrix at the date of her death, the following items, to-wit: the sum of $15,000 in the first clause of the will; the sum $15,000 in the second clause; the sum of $30,000 in the third clause; the sum of $15,000 in the fourth clause, and the sum of $40,000 in the fifth clause; there is a residuum left to four of the forced heirs of the deceased, and to the plaintiff and her brothers and sisters as legatees. This residuum is ascertained after deducting the amounts carried in the five first clauses of the will; and, these specified sums being thus deducted, the plaintiff is then entitled to one-ninth part of one-fifth of the balance thus ascertained. She being merely a legatee under the will, cannot claim collation, or avail herself of collation actually made, for the purpose of settling her rights under the will. Her rights are confined to the disposable portion; and should oven some of the legacies be radically null, the legal heirs, and not the legatees, are to benefit thereby. Turner v. Smith, 12 An. 419.

As to the legacy of $15,000 to the plaintiff and her brothers and sisters, she has a right to claim her share in the partition to be made of the estate. Her claim is against the succession of Mrs. Williams, and not against this defendant, unless she chooses to avail herself of the stipulations contained in the settlement made between her father and J. R. Williams.

"We cannot take for grauted, that even under the foregoing view of the matter, the court would do a vain thing to order a partition, on the supposition that no residue would be left, out of which the plaintiff could exercise her rights under the will. This objection is met by the reasons given by us in our first opinion.


author: Merrick, O. J.

text:
    Mary Hicks et al. v. Ann E. Weems et al.
    The incapacity of an administrator to purchase property on behalf of a succession, is not so absoluto as to make his purchases utterly void.
    Where an administrator, in seeking to collect a debt due the succession, which had its origin in the price of real estate which belonged previously to the succession, and which was subject to the vendor’s privilege in favor of the succession, has the property sold and buys it in for the estate for a small part of the debt, leaving a large balance of the dobt to be ranked among the active means of the estate — Held: That although such proceedings may have been irregular, they were not absolutely void, and when ratified by the heirs, thoir title to the property cannot be questioned by any one.
    from the District Court of the Parish of Rapides Cullom, J.

      Mercer Canfield, W. B. Lewis and T. C. for M. and Hyman <£■ Cazabat, for defendants and appellants.
   Merrick, O. J.

“ This is a petitory action, instituted by Mrs. Hicks and Mrs. Speight, sisters, and grand-daughters of Mary Clark, for the recovery of an undivided half of a tract of land, each of the plaintiffs being entitled to a fourth of the same.

The tract of land in question belonged to Mary Clark, and was sold as a part of her succession. There is no dispute as to her title. She had but two children and heirs, both of whom were daughters. One of these daughters was the mother of plaintiffs. The other was the mother of Terence and Kerly Scott, who are the warrantors. These four grand-children (their mothers being dead) are the solo and equal heirs of the common ancestress, Mary Clark, and are each entitled to one-fourth part of her succession.

“ One Leelon became the administrator of this succession, and subsequently tutor to the minors Scott. Proper proceedings were had in both capacities to legalize and effectuate a judicial sale of the property, and on the 29th day of June, 1835, the tract of land in question was publicly adjudicated by the Parish Judge to Brewster and Weems, for five thousand one hundred dollars, payable in one, two and three years.

On the 13th February, 1810, Daniel James was appointed administrator of Mary Clark’s succession. Leeton was dead, and there were debts still due and uncollected, chief among which were the notes given by Brewster and Weems for the purchase of this land. Weems had now become the owner of the land, by purchase from Brewster of his moiety, at a considerable advance over the price paid at the succession sale, a portion of which was to be discharged by the assumption of, and payment by Weems of Brewster’s indebtedness for the original purchase.

“ Soon after the appointment of James, suit was instituted to recover the amount of the three notes of Brewster and Weems, neither of which had been paid, and to enforce the mortgage upon the land. These proceedings resulted in the sale of the land, at which sale Daniel James, as administrator of Mary Clark, became the purchaser for the sum of sixteen hundred dollars.

“ Subsequently, Mrs. Ann E. Weems, who had been separated in property judicially from her husband, purchased the land, as she alleges, from Terence and Kerly W. Scott. She shows no title sustaining the allegation made in her answer, but claims the ownership of the land, and asks that the Scotts be called in warranty ; who in their turn, admit that they sold the land, without mentioning their vendee, and deny that the plaintiffs have any right to judgment.”

The principal grounds of defence to the action are, that Daniel James, the administrator, bought the land for his own use as an individual;. and, if the court should be of the contrary opinion, that then the sale was null, because minors were interested in the succession, and no family meeting advised, or decree of the court sanctioned the purchase; because the administrator, acting in a fiduciary capacity, was prohibited from purchasing property under the pain of nullity, and because property cannot be acquired for a succession.

We think with the District Judge, that the intention of James was to purchase as administrator. It would not otherwise have been so expressed in the Sheriff’s return, and in the deed to the purchaser. Moreover, the defendants appear to have recognized this sale as such, by taking title from two of the heirs of the succession.

The incapacity of the administrator to purchase property on behalf of a succession is not so absolute as to make his purchases utterly void. Indeed, there are certain cases in which his purchases would doubtless be considered valid. Take the case of the purchase of provisions and necessary supplies for a plantation, or for taking off a crop. Here his contracts for the sale would be so much in the nature of acts of administration, that no one would think of questioning them.

In the case at bar, the administrator was attempting to collect a debt which had its origin in the price of real estate which belonged previously to the succession, and which was subject to the vendor’s privilege in favor of the succession.

Now, it cannot, we think, be doubted, that the administrator, as an act of administration, might have sued to enforce the resolutory condition for the non-payment of the price, and thus have brought back the property into the succession. The action of the administrator was much more advantageous than this to the succession, for, by his purchase of the property at Sheriff’s sale, for a small part of the debt, it was returned, and the debt, for a large part, could still be ranked among the active means of the estate. Although the proceeding may have been irregular, it was not absolutely void, and the heirs having ratified the same, no one can now question their title; much less can the debtor who has had a credit upon the judgment for the price for which the property was adjudicated to the administrator. O. 0.1785 ; Succession of Devereux, 13 An. 34.

As the administrator did not attempt to purchase the property in his own name, it is idle to consider whether he might have done so.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.


author: Merrick, 0. J.

text:
    Under-Tutor of Walker, Minor, for discharge.
    The under-tutor of a minor may resign his office, without being compelled to allege and prove his excuses.
    PPEAL from the District Court of the Parish of Rapides, Cullom, J.
    NL Hyman & Cazabat, for plaintiff and appellant. M. Ryan, for defendant.
   Merrick, 0. J.

The under-tutor, William. W. Whittington, has appealed from a refusal of the District Judge, to accept his resignation and discharge him from his office of under-tutor to said minor.

The question of the right to such discharge was considered by our predecessors in 1842, in the case of the State v. The Judge of the Court of Probates of New Orleans. The court said of the question then before them : “ It seems to us rather as resolving itself into the question, whether one can be compelled to serve as under-tutor ; for he who cannot be compelled to serve, may, at any moment, resign, and we have no doubt that the resignation must be notified to the Judge of the domicil of the minor. That part of the Code which treats directly of the appointment of the under-tutor, does not provide that any class of persons shall be compelled to act as such.” * * * * * * *

“ The office of under-tutor is essentially and always dative, and we know of no provision of law which compels any citizen to accept such an appointment, more especially where his domicil is different from that of the minor. We cannot but view the office in this case, as vacant by the resignation of the under-tutor, signified in a formal manner by petition, and that it is the duty of the Court of Probates to make the appointment.” 2 Rob. 423.

We see no sufficient reason to depart from the conclusions of this court on that occasion. The under-tutor is not bound to allege and prove his excuses, but may resign.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that the resignation of said under-tutor be accepted, and that the said tutor pay the costs of the appeal and of this proceeding in the lower court.


text:
    Lewis Giannoni v. George Gunny.
    Where A, assuming to be the agent of 2?, buys a tract of land in the name of B, for whose benefit he pays the price, thereby intending to make a donation to B, he cannot afterwards defeat the title of 2?, by executing an act revoking the donation for want of acceptance of the donation by B.

    from the District Court of the Parish of Natchitoches, Chaplin, J.

      A. H. Pierson, for plaintiff. J. B. Smith, for defendant and appellant.
   Merrick, O. J.

In January, 1852, Solon Bartlett and Freeborn G. Bartlett executed an act purporting to sell to the plaintiff, represented by the defendant as agent, a certain tract of land for the price of $800.

Gunny, the defendant, paid the price of the land acquired, and remained in possession of the same. The plaintiff was not aware of the purchase until some time afterwards. The defendant subsequently executed a notarial act, revoking the former act in favor of the plaintiff, assuming that the same was a donation which had not yet been accepted.

The plaintiff has instituted the present action to recover the tract of land and rents and revenues. The defendant admits the execution of the act, but avers that it was intended as a donation, which has been subsequently revoked. The verdict of the jury, and the judgment of the court, gave the land to the plaintiff, and awarded the $800, the price, and interest, to the defendant. The latter appeals.

The appellant calls our attention to a bill of exception to the opinion of the court refusing to admit in evidence the act of revocation of the donation, on the ground that the act could not be received as evidence to contradict the notarial act of sale of the 5th January, 1852, or the enunciation therein contained, because it was the act and declaration of the party alone who offered it, and was in the nature of parol evidence, made by the party offering it.

Without deciding the question whether the testimony ought to have been received, we shall give the defendant the benefit of the same, and will consider it in evidence.

The act of sale, as already said, purported to be between Solon and Freeborn G. Bartlett, as vendors, and Louis Giannoni, the vendee, “ represented therein by his agent, George Gunny, who declared himself duly authorized to accept for the said Giannoni." The vendors, therefore, did not undertake to convey any part of the title to Gunny, but to Giannoni. Now, although the agent may (as he says) have intended a donation of the price to Giannoni, he could not, without at least the consent of the vendors, by any revocation of his supposed donation, revoke the sale until the vendee had declared whether he accepted the same. It is possible, that in the event he had repudiated the sale, it might have been declared to enure to the benefit of the agent who had paid the price out of his own funds. But until such declaration, it is clear he could not claim as owner the title to property sold to another by a formal act. See Kemper v. Smith, 3 M. 622, and 4 M. 409.

There is no occasion to hold the defendant responsible as an adverse possessor in bad faith. The only ground on which the plaintiff is permitted to recover is, by treating the defendant as Ms agent. The account which he should render of the rents is more than compensated by the improvements.

If there be any hardship in this case, it does not prejudice the plaintiff.

Judgment affirmed.


author: Land, J.

text:
    Littleton G. Atkinson v. John L. Rogers.
    When a person dies leaving property in two or more States or countries, his property in each State is considered as a separate succession for the purposes of administration, the payment of debts and the decisions of the claims of parties asserting title thereto. And when the property consists of immovables or slaves, it may be considered as a separate estate for the purpose of inheritances,
    An heir-at-law may sue in our courts for the recovery of immovable property, and its revenues, even when his ancestor, who was domiciliated in another State, had made a will which had been probated, and ordered to be executed in a foreign jurisdiction, and which here may not be valid and sufficient to defeat his inheritance.
    If immovable property in this State is in the possession of a foreign executor, and a testamentary disposition has been made of it, not in accordance with our laws, the legal heir may sue such executor directly for its recovery in the courts of this State, and is not obliged to resort to the tribunals of the testator’s domicil, to ascertain the validity of the disposition intended to deprive him of his right to immovable property within our jurisdiction.
    When a suit is brought by the heir of one of the members of a partnership against the heirs of the other member, claiming a certain sum, and giving, in his petition, a detailed statement of the property belonging to the partnership, and of its annual revenues — Held: That if plaintiffhas any right to the property described in his petition, and is, therefore, entitled to an account from the heirs of the surviving partner, his right, and the rendition of an account of the partnership affairs, can be determined in such a form of action as well as any other. Held: That such a suit is in the nature of an action for the settlement of partnership affairs, and a partition and division of the partnership effects.
    PPEAL from the District Oourt of the Parish of Avoyelles, Cullom, J.
    _OL F. F. Hitehborn, for plaintiff and appellant. H. é S. L. Taylor, and F. Cannon, for defendant.
   Land, J.

There are two questions of law for decision in this cause, to wit: Has the District Oourt of the Parish of Avoyelles jurisdiction of the plaintiff’s demand ? And, secondly, if so, can the plaintiff' maintain the action for the recovery of the property described in his petition, before a final settlement of the partnership affairs therein specified ?

In connection with these legal questions, one of fact is presented for our determination, and that is, whether the domicil of Dr. T. W. Griffin, at the time of Ms death, was in the parish of Avoyelles, in this State, or in the county of Amite, in the State of Mississippi? Upon the question of fact, we concur with the Judge below, that his domicil was in the State of Mississippi at the time of Ms demise.

The allegations of the petition are, that Thomas W. Griffin and Timothy Ji.l Rogers, purchased certain tracts of land in the parish of Avoyelles, for the purpose of establishing a planting partnership, and jointly furnished the necessary horses, mules and utensils, for carrying on the plantation. That they were joint and equal owners of the plantation and appurtenances mentioned, but that each famished Ms own separate slaves for the cultivation of the land. That the partnership commenced in the year 1840, and continued until the death of Griffin, in March, 1843, That Griffin owned and placed on the partnership plantation certain named slaves, and that they and their natural increase are still on said plantation, and are the property of the heirs of Thomas TV. Griffin, of whom the plaintiff alleges himself to be one.

That the horses, mules and plantation utensils, at the time of Griffin’s death, were worth the sum of $4,000, and that the crop of 1843, cultivated and gathered by the slaves mentioned, was worth the sum of $8,000 ; and that the revenues arising from the sale of the crops grown on said plantation since the 1st of January, 1844, have amounted to $12,000 per annum, and have been received and kept by Timothy M. Rogers and his heirs.

That T. M. Rogers and Mary Griffin, his wife, drew, after the death of Thomas TV. Griffin, a written instrument, purporting to be his last will and testament, which they caused to be probated in the county of Amite, in the State of Mississippi; and that although T. M. Rogers was appointed dative testamentary executor, he took no legal steps to administer the property of the testator, situate in the parish of Avoyelles, and that when the will was attacked by one of the heirs of the testator, in the county of Amite, it was abandoned by the legatees and executor, as though no will had been made.

That John L. Rodgers, as executor of -T. M. Rogers, and as tutor of his minor heirs, is in possession of all the perperty and revenues aforesaid, and refuses to deliver the same to petitioner, or any such part thereof as rightfully belongs to him.

And, finally, that the drawing or writing of the pretended will of T. TV. Griffin, and the probate thereof in Amite county, were simulated and intended to defraud Mm, and that he is entitled to demand and receive from the defendant Rogers, the sum of $37,191 66, on account of the property and revenues described, but which are wrongfully withheld from Mm under pretence of the will of T. W. Griffin, which is a nullity.

The defendant, John L. Rogers, for himself and as tutor of certain minor heirs of T. M. Rogers, filed a plea to the jurisdiction of the court, on the ground that the succession of T. TV. Griffin had been opened, Ms will probated and ordered to be executed in Amite county, in the State of Mississippi, and that if plaintiff lias any rights to property or otherwise in said estate, he was bound to demand them in the Probate Court of Amite county, where the will had been probated and the succession opened ; and he further excepted to plaintiffs demand on the ground, that he could not sue for the recovery of any specified amount alleged to be due and growing out of the partnership, until a liquidation of the partnership affairs, set forth in his petition.

The same defendant, as executor and heir of Timothy M. Rogers, filed a plea to the jurisdiction of the court, so far as the estate of T. M. Rogers was to be affected by the action, on the ground that the succession of the said T. M. Rogers had been opened, and his last will probated, and respondent appointed executor thereof, in the Probate Court of the county of Amite, in the State of Mississippi ; and that if plaintiff has any cause of action, the same must be litigated before the courts of the State of Mississippi, where said succession was opened, and the heirs reside.

The pleas to the jurisdiction of the court were sustained, and the suit dismissed.

First. The plea to the jurisdiction of the courts of this State, on the ground, that the succession of T. IV. Griffin had been opened in Amite county, in the State of Mississippi, is not good in law. When a person dies leaving property in two or more States or countries, his property in each State is considered as a separate succession for the purposes of administration, the payment of debts, and the decision of the claims of parties asserting title thereto ; and when it consists of immovables or real estate, it may be considered as a separate estate for the purpose of inheritance ; for the will of a testator may deprive Ms heirs-at-law of his property, subject to the operations of the laws of his domicil, but fail to do so when his property consists of immovables, and is subject to the laws of another or foreign country. For instance, the nuncupative will of Thomas W. Griffin, reduced to writing after his death, in the State of Mississippi, may be valid in that State, and deprive his heirs-at-law of his property situate in that State, but the same will may fail to deprive them of his lands and slaves in Louisiana, for the reason that a valid testamentary disposition of immovables situate here, is to be determined by our laws and not the laws of Mississippi, or any other State. To hold, therefore, that an heir-at-law cannot sue in our courts for the recovery of immovable property and its revenues, because his ancestor or other person from whom he inherits has made a will, which has been probated and ordered to be executed in a different or foreign jurisdiction, and which may not here be valid and sufBcient to defeat the inheritance of the heir, as to property within the operation of our laws, would be a denial of justice to him, and a substitution of the foreign law in lieu of our own, as to the disposition of immovable property by testament. For if he be remitted to the courts of the domicil of the testator, to ascertain his rights under the will, they might be determined by the law of the forum and not by the local law or lex reí sita,.

Secondly. For like reason, if immovable property in this State is in the possession of a foreign executor, and a testamentary disposition has been made of it, not in accordance with our laws, the legal heir may sue him directly for its recovery, in the courts of our State, and is not obliged to resort to the tribunals of the testator’s domicil, to ascertain the validity of the disposition intended to deprive him of the immovable estate within our jurisdiction.

Thirdly. The petition contains a detailed statement of the property alleged to have been in partnership, and of its annual revenues, and alleges that a certain sum is due him (plaintiff) as one of the heirs of a deceased partner. If the plaintiff has any right to the property described in his petition, and is, therefore, entitled to an account from the heirs of the surviving partner, his right and the rendition of account of the partnership affairs, can be determined in the present form of action as well as any other.

The suit itself is in the nature of an action for the settlement of partnership affairs, and a partition or division of the partnership effects.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded for further proceedings according to law, and the defendants and appellees pay the costs of this appeal.


text:
    State v. C. S. Leckie et als.
    Where, by an Act of the Legislature, the State remits a portion, of the indebtedness of a Tax Collector, authorizing his bond to be cancelled on the payment of a fixed amount, it is a renunciation of the right to claim the interest at two per cent, per month allowed by statute in the nature of a penalty against defaulting Tax Collectors.
    The State cannot be sued indirectly by way of a reconventional demand set up in the defendant’s answer.
    PPEAL from the District Court of the Parish of Rapides, Cullom,, J.
    XJL T. C. Manning, for plaintiff and appellant. 0. N. Ogden and M. Ryan, for defendants.
   Land, J.

This suit was instituted against the defendant. C. S. Leckie, and his securities on his official bond for the collection of State taxes, in the parish of Rapides, for the year 1850, for the recovery of the sum of nine thousand eight hundred and sixty-three dollars and ninety-nine cents, with interest thereon at the rate of two per cent, per month, from the first of January, 1852.

Whilst this suit was pending, a legislative Act was passed for the relief of Charles S. Leckie, the defendant, as follows :

“ Section 1. That the real and true amount due to the State of Louisiana by Charles S. Leckie, Collector of the State Taxes for the parish of Rapides, for the year 1850, is the sum of six thousand nine hundred and eighty-eight dollars and ninety-four cents.

“ Sec. 2. That on the payment of said amount of six thousand nine hundred and eighty-eight dollars and ninety-four cents, in the Treasury of the State, by Charles S. Leckie, or any of his securities, or any person interested, the Auditor of Public Accounts is hereby authorized to cancel the bond given by Charles S. Iueckie, as Collector aforesaid.

Sec. 3. That the legal mortgage on the property of Charles S. Leckie, in favor of the State, as Collector of the State Taxes for the parish of Rapides, for the year 1850, shall attach to said property until the sum mentioned in this Act shall be paid; provided that, if any person has purchased at public sale since the defalcation of said Leckie, any property on which said mortgage rested, on the payment of the price for which the property was sold into the Treasury of the State by the purchaser, the legal mortgage of the State shall be released on said property by the Auditor of Public Accounts.

“ Sec. 4. That the Auditor of Public Accounts shall, and he is hereby authorized to carry into effect the settlement mentioned in this Act, in the manner he may deem most judicious for the interest of the State.

■ “ Sec. 5. That nothing herein shall affect the rights of the State against said Leckie and his securities, until the amount mentioned in the first section of this Act shall be paid into the State Treasury, nor shall be so construed as to affect the suit now pending for the collection of the defalcation by said Leckie, until the amount shall be paid ; and provided further, that the fee due to the District Attorney, of two and one-half per cent, on the amount paid into the State Treasury, shall be paid to him by the said Leckie, or his securities, in compensation for his services, and all other costs of court which have or may accrue in said suit; and provided further, that nothing herein shall be so construed as to affect the legal rights of subrogation as between the securities.” See Session Acts of 1854, page 175.

Before the passage of this Act, the real estate and slaves of Leclcie, upon which the State had a mortgage for the security of the payment of the taxes collected by him, had been seized and sold at the suit of his individual creditors.

There was judgment for the State for the sum of $6,988 94, the amount stated in the above mentioned Act, with interest thereon at the rate of five per cent, per annum, from the 16th day of March, 1854, the date of the passage of said Act.

The State appealed, and specially asks that the judgment be amended, and the defendant and his securities be condemned to pay interest at the rate of two per cent, per month on the amount of the judgment, from the 16th of March, 1854, instead of five per cent, allowed by the decree. This suit was pending before and at the date of the passage of the Act of the Legislature of March 16th, 1854, and is mentioned in the fifth section thereof.

It is not disputed, that the Legislature was apprised of the demands contained in the petition, or motion to show cause, filed against the defendant, Leclcie, and his sureties, and consequently, of the claim of two per cent, per month on the amount of defalcation. It is, indeed, conceded, that the principal of the debt was remitted from the sum of $9,863 90 down to the sum of $6,988 94, together with all interest to the date of the Act; for the interest is only claimed, in argument, from this date.

Remission is a mode of extinguishing obligations, and is conventional when expressly granted to the debtor by the creditor ; or is tacit, when the creditor surrenders voluntarily to his debtor the original title under private signature, constituting the obligation. O. 0-, Arts. 2195, 2196.

If the State had voluntarily surrendered to the defendant his official bond, without the payment of even a part, his obligation and that of his securities under it would have been extinguished for the whole, without any express agreement to that effect; and, a fortiori, would their obligation have been extinguished, by a voluntary surrender, after a partial payment, for the balance.

In the case at bar, it is declared on the part of the State, not that the bond shall be surrendered to defendant on part payment of the amount due, but that, the bond shall be cancelled, on the payment of an amount less than the sum due ; for it is shown, that defendant and his sureties were indebted to the State for a much larger sum than the $6,983 94 specified in the Act of March 16th, 1854. The evidence presents, therefore, the case, not of a tacit remission of a portion of a debt, but an express conventional discharge of such portion; for the Act declares that the sum of $6,983 94 is the sum due, (although it was less than the sum due,) and that on the payment of the amount thus reduced, the bond of defendant and his sureties should be cancelled.

This Act of the Legislature can only be considered as one of remission, or liberality, on the part of the State, to the defendant and his securities, and a renunciation of all right to interest at the rate of two per cent, per month, given by the statute. This view is confirmed by the consideration that the interest, at the rate of two per cent, per month, is in the nature of a penalty, and is severe and ruinous in its continued monthly impositions, and that its allowance would be totally inconsistent with the liberal intention of the State, plainly manifested by the Act of the Legislature. The judgment is, therefore, correct in rejecting the penal interest of the statute, on the sum of $6,983 94, declared by the Act to be due.

The sureties, as appellants, have filed an answer to the appeal, and prayed that the judgment be entirely reversed, and for one in their favor.

Tho ground on which they rely for a reversal of the judgment is, that the State has, by the provision contained in the third section of the Act of the 16 th of March, 1854, impaired or destroyed their right of recourse upon the property of the principal debtor, for the reason they are required to be satisfied with the price at which the debtor’s property, on which the State had a mortgage, had been sold, and that the evidence shows a sale of the property under a judgment bearing a judicial mortgage, subsequent to the mortgage of the State. If the property of the principal debtor had been sold under the judgment bearing the junior mortgage, for less than the amount for which the sureties were bound, and they had been thereby injured, by a release of the State’s mortgage, the objection would perhaps be well taken; but the evidence shows, and it is not disputed, that on the day the Act of the Legislature was passed, the purchasers of the property owed, on account of its purchase, the sum of Sp7,155 96, exceeding by $167 02 the amount declared in the first section of the Act to be due on the bond. It is, therefore, evident, that there was nothing in the provision in the third section of the Act, or of its execution, prejudicial to the rights of the sureties, and that the objection which they make does not come within the reason of the rule which releases a surety when the creditor has done an act which deprives Mm of the power of subrogating the surety to all his rights of action, mortgage and privilege against the principal debtor. It is, besides, most apparent from the tenor of the Act itself, that it was not the intention of the Legislature that the State’s . right of recourse against the sureties, or the recourse of the sureties against tire principal debtor, qr his property, should be in any wise impaired or destroyed. This ground of objection is, therefore, not tenable.

M. Ryan, one of the sureties, pleaded in compensaiion of the demand against him, a claim for three thousand dollars, alleged to be due him by virtue of a retainer and professional services rendered, in the matter of claims to a large amount, due the State. The attorney representing the plaintiff objected, on the trial, to the introduction of testimony in support of the claim, on the ground, among others, that it was unliquidated, and could not be opposed in compensation .to the plaintiff’s liquidated demand. The objection was overruled, the testimony received,'and the sum of five hundred dollars allowed the surety on his claim in compensation.

The District Judge erred. The objection to the testimony was well taken under the pleadings. The plaintiff’s demand was a liquidated debt, and the unliqui-dated claim of the surety could not be opposed in compensation of it. The plaintiff was, besides, the State, and could not be sued by the surety on his claim, either directly or indirectly.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, as far as it decrees to M. Ryan the sum of five hundred dollars on his claim in compensation, and the judgment so amended be in other respects affirmed, with costs in both courts.


author: Vookhies, J.

text:
    J. F. Crawford v. L. C. & C. J. Puckett.
    An instrument of writing convoying a title to slaves in which, the grantor uses the expressions, ((givc and bequeath,” when folio wed by a delivery of tho property, will bo considered a donation inter vivos -

    Where a father, in the State of Arkansas, made a donation of slaves to u the heirs of his son,” the son then living and receiving the delivery of the property — Held: That it was a valid donation to the minor child of the son, then in existence, who, as presumptive heir, received the benefit of the donation, and that his father, acting merely in a fiduciary capacity, could not alienate the property to the prejudice of the rights of his minor child.
    In a common law State where slaves are personal property, a gift by parol, followed by delivery, confers a valid title.
    from the District Court of the Parish of Natchitoches, Chaplin, J.

      J. D. Watkins, for plaintiff and appellant. J. G. Campbell, for defendant.
   Vookhies, J.

The plaintiff, as guardian of the minor children of William George, and of his deceased wife, Frances Yeager, sets up title to several slaves, in the possession of the defendants and purchased by them from William George himself.

The slaves in controversy were formerly the property of Basil George; the father of William George; and the former delivered possession of these slaves to the latter, upon execution of the following instrument of writing, to wit:

“ December 20th, 1843 — Arkansas State, Ouachita county.

“ Know all men by these presents, that I, Basil George, of the county and State aforesaid, do this day give and bequeath unto the heirs of William George, in the county and State aforesaid, the following negroes, to have and to hold forever, as their property : Hampton, 26 years old, and Esther, his wife, 20 years old, and Levy, their child, six months old — in the presence of the undersigned witnesses. Whereunto I set my hand.

(Signed) “ Bazil George.

“Witnesses: Abner Yeager, M. If eager, John Stanford.”

The defendants’ counsel contends that this is not a donation inter vivos, but a last will and testament, because of the terms used, give and bequeath. It is evident, however, that the donor took at the time quite a different view of this matter, for not only was the deed followed by a delivery of the property donated, but the deed itself was thereupon recorded in accordance with the laws of Arkansas, with regard to acts inter vivos.

It is further contended, that this deed of gift is null and void, on account of uncertainty as to those who are the grantees ; and also because the pretended donees were not in esse at the time of its execution.

The last objection is met with the fact, which appears upon record, that one of the minors, represented in this case, was living at the time of the execution of the deed. So that, however, invalid as to the others the gift may have been for want of parties, it had the desired effect, by vesting the whole title in the donee then in existence. It did not behoove the defendants’ vendor, William George, to avail himself of this defect, as he was acting merely in a fiduciary capacity, and the defendants themselves cannot now claim any better right than their vendor.

As William George had at the time a child, who was his presumptive heir, aud as the slave was delivered to the former for the purpose of possessing it for the benefit of his heirs, it is not conceived in what respect there is any uncertainty as to the parties intended to be the recipients of the donor’s liberality. The only possible uncertainty was, whether the gift was made simply to the living child of William George, or to all his children, born and unborn ; but as the law discountenances dispositions of the latter character, we must conclude that the donor meant the living heir or child. It is true, that nemo est Imres viventis ; but he who is the nearest relation to the deceased, capable of inheriting, is presumed to be the heir, and is called presumptive heir. This quality is given to Mm before the decease of the person from whom he is to inherit, as well as after the opening of the succession, until he has accepted or renounced it.” O. C. 876.

By using the expression the heirs of William George, the donor pointed to the children who were his presumptive heirs. No greater certainty can be required in pointing out the parties for whom a liberality is intended. 11 La. 431, Theall v. Theall; 2 Rob. 438, Succession of Mary; 3 An. 494, Fisk v. Fisk; 17 La. Milne v. Milne.

Besides, slaves being considered in the common law States as personal property, may be given by parol. We must, therefore, suppose that the title of the minor was perfected by the delivery. William George, having accepted the delivery of the slaves for the benefit of his heirs, could not be permitted to allege the nullity of the act, so as to deprive them of property delivered and entrusted to him for their benefit.

The plaintiff, in his representative capacity, is entitled to recover the slaves in question, together with the value of their services, since the institution of this suit, to wit, from the 8th day of September, 1857. The value of the services of the boy Hampton, is shown to be worth twelve dollars per month, and those of the negro woman Esther, four dollars per month ; but on the other hand, it appears that the services for keeping and raising the children, are worth the sum of four dollars per month.

The defendants are entitled to recover from their warrantor, William George, the amount of the purchase money ; a restitution of the fruits which were awarded to the plaintiffs ; and such damages as may be proven, together with costs. 0. C. 2482.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed ; that the plaintiff do have judgment against the defendants for the slaves Hampton and Esther, with, their increase, to wit, Felix, Faling, Mary, Minerva, Margaret, Levy and Sabia; that the defendants do pay to the said plaintiff, the hire of these slaves, at the rate of one hundred and forty-four dollars per annum, from the 8th day of September, A. D. 1857, eighteen hundred and fifty-seven, until delivery of possession of said slaves to said plaintiff. It is further ordered, that the defendants do have judgment against William George, for the sum of two thousand dollars, with legal interest from the 18th day of November, A. D. 1850, until paid; and that they do further recover of him the amount decreed to be paid by them to the plaintiff for the hire of the slaves; the appellees paying the costs of appeal.


text:
    State v. The Heirs of W. R. Leckie, and his Sureties.
    The beneficiary heir cannotstand in judgment for the succession.
    Where the succession is accepted with the benefit of inventory, the appointment of an administrator becomes necessary, except when the heirs are all minors represented by a tutor, which case is made an exception to the general rule, the tutor having the right to administer, if the creditors do not require the appointment of an administrator.
    Where a suit is improperly brought against the beneficiary heir as such, for a debt of the succession, and is dismissed on the exception of the hoir, leave should be granted to the plaintiff to amend, by making the proper parties.
    PPEAL from the District Court of the Parish of Rapides, Cullom, J.

      -CX. T. C. Manning, for plaintiff and appellant. Mercer Canfield, for defendant.
   Merrick, 0. J.

The proceeding in this case was commenced by rule against the representatives of William R. Leckie and his sureties, for defalcations in the collection of the taxes of 1846. The suit having been compromised under an Act of the Legislature as to the sureties, is now before us as an appeal taken by the State from a final judgment rendered in favor of the defendants, on the plea of prescription.

The first question presented by the record is, the exception to the action on the part of the heirs, on the ground that they have not accepted the succession of the deceased purely and simply, but only with the benefit of inventory, and praying that an administrator may be appointed.

W. R. Leckie has been dead some years. He left seven children, four majors and three minors. The right of the heirs to accept the succession with benefit of inventory, is not questioned by the State. But it is argued that the suit can be maintained against the beneficiary heir, and that it is not essential that an administrator shall be appointed.

The object of the suit is to obtain a judgment against the succession. Oan the beneficiary heirs, as such, stand in judgment for the succession ? Have they, as such, the detention of the effects of a succession ? Oan they acknowledge debts? It appears to us, under our present jurisprudence, the answers to these questions must be in the negative. The Civil Code and Code of Practice contemplate the appointment of an administrator, in the case the succession is accepted, with the benefit of inventory. C. C. 1030, 1042; C. P. 974, 982.

This administrator, thus appointed, must give bond and take an oath of office, and thus he becomes, quasi, an officer of court, subject, in certain cases, to the summary rules and motions of parties and the penalties denounced by law. This could not be the case if the beneficiary heirs could administer without these formalities.

As the law gives one or more of the beneficiary heirs preference in the administration, and confers upon them, by such appointment, a power over the estate, so also the extra judicial action of the beneficiary heir of age, who should attempt to acknowledge debts, collect revenues and debts by suit or otherwise, and administer the estate, would be liable to misconstruction and would end in charging him as unconditional heir.

Where all the heirs are minors, represented by the tutor, this reasoning has not the same force, and the case is made an exception to the general rule, if the creditors do not require the appointment of an administrator. See 2 An. 464 Bryan v. Atchison ; 3 An. 502 ; Phillip’s Dig. p. 3, sec. 8.

It seems to us quite clear, that the exception of the defendants to theii’ capacity to stand in judgment, ought to have been maintained.

The dismissing of the suit as to the beneficiary heirs, will not prevent the plaintiff from proceeding to make the proper parties.

A final decree in favor of the defendants was erroneous, as we have already shown that they did not properly represent the succession.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the suit be dismissed as to the said defendants, the beneficiary heirs of said W. R. LecJcie, deceased, without prejudice to the right of the State to amend, by making the proper parties.


author: Merrick, C. J.

text:
      W. O. Winn v. W. W. Brown et al.
    The surviving widow of It. W. sold a tract of land belonging to the community, of which property her minor children owned an undivided half. The salo was made by the mother for herself, and as tutrix of her minor children, and with full warranty. Ina suitby one of the children to recover his portion of the property from one holding under a title from his mother’s vendee — Held: That although the defendant had not obtained a subrogation to his vendor’s rights of warranty against tlio mother of plaintiff, the action could not he maintained, the fact of the price of the property having gone into tlio succession of the mother, of which the plaintiff was heir, making it against good conscience for him to recover.
    from the District Court of the Parish of Natchitoches, Chaplin, J.

      W. B. Lewis, for plaintiff. J. B. Smith, for defendant.
   Merrick, C. J.

“ This is a petitory action, in which the plaintiff seeks to recover from the defendants, the undivided hali of a certain plantation or tract of land.

“ Plaintiff avers that he is the sole surviving' heir of Richard Winn, late of the parish of Rapides. That said Richard Winn owned, during his life-time, the undivided half of said land. That said Richard Winn sold the same to Daniel R. Hopkins, on the 28th day of December, 1838, on certain terms of credit; and on the 2d day of November, 1840, Hopkins sold it to B. B. Brazeale, who, being already the owner of the other half thereof, became, by said sale, the sole owner of the whole tract. That on the 15th day of November, 1841, he sold the whole property to one Samuel Quarles, on certain credit, and transferred the notes of said Quarles to petitioner’s mother, who by the death of his father, became the natural tutrix, and ivas co-tutor with James N. T. Richardson, (with whom she intermarried,) of himself and his sister Ann T. Winn, who has since died.

“ That said transfer of notes was in payment of the debt due to said Richard Winn, for the price of said property, which was a community debt due to his mother, to himself, and to his sister — one-half to his mother, and the other half to himself, in his own right and as heir of his sister.

“ Plaintiff further avers, that his said mother aud her husband, James N. T. -Richardson, acting in right of his said mother, as owner of one-half of said claim, and as co-tutors of himself and sister, and under and by virtue of the advice of a family meeting, took all of said land, together with a number of slaves, and personal property from said Quarles, in payment of said community debt, and whereby the undivided half thereof became the property of himself and sister, and which is evidenced by an act of sale, or giving in payment, passed on the 2d day of March, 1846.

“ Plaintiff finally avers, that W. W. Brown, Tally Brown and Daniel Brown, have taken illegal possession of said land, and that they are bound to account for the fruits and revenues, which are reasonably worth ten thousand dollars. He prays that defendant be decreed to deliver up the undivided half of said land, and for judgment against them for the sum of ten thousand dollars, for fruits and revenues.”

The defendant, among other defences to the action, pleaded the exception, that the plaintiff, as heir to his mother, the vendor of Quarles, was bound in warranty and, therefore, could not recover.

To this, plaintiff replies : The defendant claims title by virtue of a sale from Quarles to him. In this act of sale there is no subrogation to Quarles’ action and demand in warranty, and, therefore, defendant cannot avail himself of it as a means of defence. It is true, as contended for by plaintiff, that it has been held, that “ a vendor who has not taken an express subrogation of his vendor’s right of warranty, cannot, in case of eviction, maintain an' action of warranty against the vendor of his vendor.”

What the defendant seeks to do in this case, is quite different. It is to avail himself of a fact as a defence to an action. He demands, strictly speaking, nothing in warranty against the plaintiff, but affirms the existence of a fact which makes it against good conscience for the plaintiff to recover. It is that plaintiff’s mother expressly covenanted to warrant the title of Quarles, and if she did not pay the one-half of the price to the plaintiff, or for his benefit, it is still in her succession, and plaintiff has found the price therein, and is so much the richer by it. As Quarles, if cited in warranty, could have availed himself of this fact, as a defence to the action, so his vendee also may use it as a shield to protect his title. Por it is immaterial, whether the facts which the defendants urges by way of a defence to the action, are furnished by the vendor, after a demand in warranty, or after a simple verbal notice, or are discovered by the possessors of the property without any assistance. O. C. 2494; 0. P. 388-; 2 Rob. 196.

The exception ought to have been maintained.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed by the court, that there be judgment in favor of defendants, with costs of both courts.


author: Merrick, G. J.

text:
    Alexander Hale v. Nathaniel Saunders.
    When plaintiff propounds interrogatories on facts and articles to defendant, and in his answor lie admits only a part of the demand, plaintiff may take a nonsuit, or discontinue tho suit as to the residue.
    Plaintiff has the right to discontinue the whole or any portion of his demand, so long as there is no reconventional demand filed by defendant.
    from the District Court of the Parish of Rapides, Cullom, 3.

      W. P. Shropshire and Hyman & Cazabat, for plaintiff. W. B. and J. C. Lewis, for defendant and appellant.
   Merrick, G. J.

The plaintiff brought suit against the defendant for $1013, for cotton shipped and sold by him during' the years 1854,1855 and 1856.

The plaintiff annexed the accounts of certain sales rendered Saunders by his merchants in New Orleans, and interrogated him as to Ms indebtedness to the plaintiff under them. Saunders admitted only a part of the accounts of sales produced, to be sales of Hale’s cotton.

The plaintiff thereupon proposed to take a judgment of nonsuit or discontinue as to the residue of his demand. This being objected to by defendant’s counsel, and the objection being sustained by the court, plaintiff excepted. Judgment was rendered in his favor for only $368 29, and he appeals.

"We are of the opinion, that the plaintiff had the right to discontinue the whole or any portion of his demand, so long as there was no reconventional demand filed by the defendant. The unsatisfactory or even adverse answers of the defendant to the interrogatories propounded by this plaintiff were only evidence, and if the plaintiff supposed he could supply the defects of such evidence or rebut the same, he had the right to dismiss his demand in order to renew his suit for such portion of his claim under more favorable circumstances.

The defendant and appellee urges the plea of prescription in this court. But we have not found any answer praying for an amendment of the judgment in his favor. We cannot, therefore, consider the plea, so far as it applies to the portion of plaintiff’s demand insisted on and in judgment. As to the residue of plaintiff’s demand, the plea of prescription cannot prevent plaintiff from dismissing the same.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, so as to dismiss all of plaintiff’s demand contained in his petition, as in case of a nonsuit, except the account of sales of the 18th of Januaay, 1854, of two bales of cotton marked A N ; the account of sales of four bales of cotton, 20th March, 1856, and of one bale of cotton of date July 26, 1856, amounting in the aggregate to the sum of $368 29 ; and it is further ordered, adjudged and decreed, that the judgment of the lower court so amended be affirmed, the defendant paying the costs of the appeal.


author: Merrick, O. J. Buchanan, J.

text:
    Succession of John Twibill.
    The surety of the liquidator appointed to administer the affairs of a commercial partnership which hag "been dissolved by the death of one of the partners, cannot file an account in tho succession of such deceased partner, of the administration of his principal, with the view of obtaining his discharge from liability as surety.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    _Ci. Durant & Hornor, for appellant. M. Grivot, for appellee.
   Merrick, O. J.

The appeal in this case is taken by the sureties of William Atkins, from a judgment denying- their right to file an account in the succession of John Twibill.

The counsel for appellant state their case as follows, viz :

“ The commercial partnership of Iwibill & Atkins was dissolved by the death of John Twibill, on the 28th of April, 1856. William Atkins petitioned for the liquidation and settlement of the partnership, which was granted to him, contradictorily with Twibill’s widow, on his giving bond and security in the sum of $10,000, on the 21st of May, 1856. Atkins’ securities were James McIntosh, John Thompson, and George Purvis, the appellants.

“ On the 2d of November,. 1856, Atkins died, and John M. Desmarest was appointed his administrate!-. He found the succession and the partnership matters of Twibill & Atkins inextricably involved with each other.

“ On the 11th of June, 1857, he filed his tableau in Atkins’ succession. On the same day, in Twibill’s succession, he filed a full tableau and account of the liquidation of the partnership of Twibill <& Atkins, and a few days afterwards he made the sureties of Atkins regular parties to the proceedings.

“ The attorney for absent heirs and the attorney of the widow of Twibill denied the right of Atkins’ administrator to file any account of the liquidation of the partnership. The Judge sustained their exception, and dismissed the tableau.

One of the creditors of Twibill <& Atkins ruled Atkins’ administrator for an account or tableau of the partnership affairs, on the 15th of September, 1857.

Atkins’ administrator excepts, and says that the court has already decided that he has no right to file an account; that while such judgment lasts, respondent ought not to be held to file any account, as it would be inconsistent and unjust to deny his right to file an account, and then to compel him to file one. But should the court think he can now be called upon to file an account, which he is perfectly willing- to do, then he says he has no other account to give than the one already presented by him, and which he prays may be taken as a part of his answer.

“ This rule was made absolute, the account was filed, and the same formalities and notices to creditors and others interested were gone through with, and the same result attained, to-wit: a regular judgment of homologation without opposition, except from the attorneys of Twibill’s widow and absent heirs, who again denied the right of Atkins’ administrator to file any account of the liquidation and settlement of the partnership, But although the lower Judge had ordered the account to be filed, no doubt through error, he sustained the exception, dismissed the tableau, and annulled all proceedings on the rule taken by the creditor. This was on the 26th of November, 1857.

“ On the 4th of December, 1857, the securities, adopting the administrator’s account, filed their petition in the succession of Twibill, and with it the said account, setting forth the foregoing facts, and praying its homologation and their final discharge from all liability as sureties of William Atkins, as liquidating partner of Twibill <& Atkins.

The attorneys of Twibill’s widow and absent heirs denied the right of the sureties to file an account of the liquidation of the partnership ; and from a judgment sustaining their exception and dismissing the sureties’ petition and their account, this appeal has been taken.”

It thus appears, that Desmarest represents the succession of Atkins as administrator ; and he having failed in his efforts to intrude an account upon the succession of Twibill, of Atkins’ administration as liquidator of the partnership affairs, the sureties of Atkins now attempt to do what was refused the representative of their principal.

The action is founded upon a misapprehension of the rights of the sureties and administrators of successions.

As between themselves and the creditor, sureties have no claims, until they are sued or have paid the debt. If sued, they are entitled to the pleas of discussion and division; and,'on payment of the debt, to a subrogation to the action and rights of the creditor. C. C. 3014, 3015, 3018, 3030 ; 12 An. 8.

As between the principal debtor and surety even, the latter has no claim until he has paid the debt, or until one of the conditions of Art. 3026 O. O. has happened. Taylor v. Drane, 13 L. R. 62 ; Mudd v. Rogers, 10 An. 648.

Aside from the irregularity of filing an account for a succession they do not represent, how then can the sureties of the debtor of a succession undertake to file an account in such succession, already represented by its proper curator, concerning matters about which they have not yet acquired any legal rights ? See C. P., Art. 15, and Succession of Rachel, 12 An. 717.

If their principal is not the debtor of such succession, but on the contrary, the creditor of that succession, it is most manifest that the condition upon which the accessory obligation of the surety was to be founded, has failed. O. O. 3004, 3006.

The judgment of the lower court was, therefore, fully sustained by law.

Judgment affirmed.

Buchanan, J.

I adopt the following opinion, written by Judge Spofford, as my concurring opinion in the case of the Succession of John Twibill :

I agree with the District Judge in regarding as wholly irregular the intrusion of the sureties of Atkins, liquidator of Twibill & Atkins, into the succession of Twibill, against the will of the lawful curator, to file, as belonging to that sue-cession, an account of one Desmarest, who was only administrator of Atkins’ estate, and a mere intermeddler in the partnership affairs, without notice to the representatives of Twibill.

When these sureties are attacked by Twibill’s succession for the gestión of their principal or liquidator, it will be time for them to show that it has not been injurious to the estate of Twibill.”


author: Buchanan, J.

text:
    L. Elkin & Co. v. New York & New Orleans Steamship Company.
    When goods shipped on freight are damaged by water, so as to be valueless and unsalable, the shipper is not bound to sond them to auction to be sold, as a prerequisite to his right of action.
    Either party has a right to require, in such case, a sale by auction, and the expenses will form part of the costs.
    from the Fourth District Court of Now Orleans, Price, J.

      Hunt & Denagre, for plaintiff. Singleton <& Clack, for defendants.
   Buchanan, J.

The plaintiffs had judgment in the District Court for the value of goods shipped on board the defendants’ vessel, on freight, and which were damaged by water, as testified by several witnesses, to such an extent as to render them entirely valueless. .

Defendants appeal from the judgment, and rely upon the case of Henderson & Gaines v. Ship Maid of Orleans, 12th An. 352; in which case plaintiffs were nonsuited, because they had not ascertained, by an auction sale the difference between the invoice price of the goods shipped, and their value as delivered. The distinction to be made between the case cited and the present is, that in the former, the goods were proved to have some value (say 30 or 40 per cent, of the invoice price) at the port of delivery; whereas, in the latter, the goods are proved to have been culled over, and the suit is instituted only for that portion which the witnesses prove to be entirely valueless and unsalable. In such a case, it seems unreasonable to require of plaintiffs the useless expense of sending the goods to auction, and advertising them for sale, as a prerequisite to the right of action. As we said in Greenwood v. Cooper, 10th An. 797, either party had the right to require a sale by auction; and upon an application by defendants, such an order might have been made, and the expenses would have formed part of the costs. But no such application was made in the court below. The offer of defendants’ clerk, of twenty-five cents a piece for the damaged window shades, “ to paper his house with,” does not appear to us serious; and cannot be viewed as contradicting the testimony of plaintiffs’ witnesses.

Judgment affirmed, with costs.


author: Cole, J.

text:
    L. Fabre v. R. W. McRae and A. Provosty, Syndic.
    lu a suit for tlie recovery of money, the defendant having made a surrender, his syndic was made a party, and judgment rendered in favor of the plaintiff — Held: That it was irregular, that all further proceedings should have been suspended, and the plaintiff’s claim cumulated with the insolvent proceedings.
    PPEAL from the District Court of the Parish of Point Coupée, Ratliff, J.

      F. N. Farrar, for plaintiff. Clark <& Bayne and A. Provosty, for defendants.
   Cole, J.

This suit was commenced by plaintiff against R. W. McRae.

Hall, Rodd <& Putnam, intervened.

Afterwards, plaintiff moved that A. Provosty, Esq., be made a party defendant to the suit, on the ground, that since the commencement of the same, the defendant, R. W. McRae, had made' a surrender to his creditors, and Provosty had been appointed syndic.

The judgment was in favor of plaintiff against the intervenors and defendant.

The syndic has alone appealed.

In consequence of the surrender, any further proceedings in this case ought to have been suspended, and the claim of plaintiff ought to have been cumulated with the insolvent proceedings, and settled contradictorily with the creditors of McRae. Astor v. Syndics of Saul et als., 4 M. N. S. 632 ; Marsh v. Marsh, 9 Rob. 46 ; Posly v. Weems, 4 An. 195; Clark v. Oddie, 4 M. N. S. 625.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, so far as plaintiff and the syndic are concerned, and that this cause be remanded to the lower court to be proceeded with according to law, and that plaintiff pay the costs of appeal; and that the costs of the lower court abide the final termination of the suit.


text:
    State v. Slave Charles.
    TVliere a slave was prosecuted under the Act of 1857, u relative to slaves,” for having struck a white man, so as to cause the shedding of hlood, and tho jury acquitted him of any capital offence, hut sentenced him to receive corporal punishment — Held: That the accused, in such a case, is not debarred the right of appeal; and that Article 62 of the Constitution of this Stato, which grants the right of appeal in all criminal cases, where the offence charged is punishable with death, or imprisonment, at hard labor, does not make that right depend upon the nature of the verdict,or the punishment that may he inflicted hy the jury, hut upon the nature and punishment of the offence charged as fixed hy law.
    Section 28th of the Act of 1857, relative to slaves, empowors tlio court to inflict- corporal punishment, only when the accused has not been convicted or acquitted of an offence punishable with death, and where a slave has been acquitted by the court of any capital offence, corporal punishment cannot be inflicted on him.

      from a Justice’s Court of the Parish of Franklin.

      F. P. Stubbs, District for the State. H. & J. H. Crawford, for defendant and appellant.
   Cole, J.

The slave Charles was tried before a jury of two Justices of the Peace and ten slaveholders, in the parish of Franklin, charged with having willfully and maliciously struck his overseer, a white man, appointed by his owner, so as to cause a shedding of blood.

The verdict of the jury acquitted the prisoner of any capital offence, but sentenced him to receive corporal punishment.

The accused has appealed.

A motion has been made by the District Attorney to dismiss the appeal,.on the ground that this court is without jurisdiction, because the appellant was ac-quilted of the offence punishable with death, or imprisonment at hard labor, and condemned to receive only corporal punishment by flogging, and that a fine exceeding three hundred dollars has not been actually imposed.

The Constitution of 1852, Article 62, gives appellate jurisdiction to this court over all criminal cases on questions of law alone, whenever the offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding-three hundred dollars is actually imposed.

This Article does not render it necessary for the right of appeal, that the prisoner should be found guilty of an offence punishable with death, or imprisonment at hard labor. It is sufficient to authorize the appeal, that the offence charged against him is punishable with death, or imprisonment at hard labor.

The right of appeal equally exists, if the accused has been charged with an offence punishable with death or imprisonment at hard labor, and has been found guilty of an offence not so punishable, for Article 62 of the Constitution does not make the right of appeal depend upon the nature of the verdict or the punishment that may be inflicted by the jury, but upon the fact, whether the offence charged is punishable with death or imprisonment at hard labor.

The third section of the Act of 1851, (p. 229, Sess. Acts) punishes with death or imprisonment at hard labor for life, any slave who commits the crime with which the appellant was charged. It is true, that the 28th section of the same Act, (Sessions Acts, 1851, p. 232) declares, that in case the court shall not convict or acquit the accused of an offence punishable with death, it shall have the power to decree the infliction of such corporal punishment as it may consider deserved by the prisoner.

This section does not deprive the appellant of the right of appeal, for the offence charged was punishable with death or imprisonment at hard labor for life.

The motion to dismiss the appeal is, therefore, overruled.

The verdict and judgment of the court and jury are illegal.

Section 28th, already quoted, empowers the court to inflict corporal punishment only when the court “ shall not convict or acquit” the accused of an offence punishable with death.

In this case, the verdict of the jury was as follows:

“ We, the court and jury, empannelled for the trial of Charles, a slave, acquit him of any capital offence, and from motives of policy and not from the justice of the case, sentence him to receive one hundred and fifty-four lashes by the Sheriff, but not so as to break the skin of the said slave, on the first Monday of September, A. D. 1859.”

As, then, the jury acquitted the prisoner of an offence punishable with death, it had not the right to inflict corporal punishment.

The French text of section 28th, agrees with our construction of the English text: “ Néanmoins si la cour ne eondamne, ni n’aquitte l’esclave accusé d’un crime entrainant la peine de mort, elle aura le pouvoir de lui infligor tout chati-meut corporel qu’clle jugera avoir été par lui mérité.”

The idea of the legislator seems to have been, that when the evidence was such that the jury were of opinion that the accused was not absolutely guilty of the offence charged, but, still, that he had committed an offence which ought to be punished in a lighter form, than by death or hard labor, that then they should have the right to inflict corporal punisment.

The form of the verdict ought to have been in substance, that they neither acquit nor convict the accused of the offence charged, hut from the nature of the evidence, it is proper to inflict certain corporal punishment, and accordingly sentence the accused to receive a certain amount of corporal punishment, specifying the same.

The 9th section of the Act of 1855, to regulate the mode of procedure in criminal proceedings relative to free persons, (Sess. Acts of 1855, p. 173, § 9,) is somewhat similar to section 28 of the Act of 1857, for it declares, that if upon the trial of any person for any crime or misdemeanor, it shall appear that the facts given in evidence amount in law to some other offence, he shall not, by reason thereof, be entitled to be acquitted of the offence charged.

It is, therefore, ordered, adjudged and decreed, that the verdict and judgment of the court and jury from which this appeal is taken, be amended as follows, to wit, that the portion thereof which sentences the slave Charles to receive corporal punishment, to be inflicted by the Sheriff, be avoided and reversed; and that the verdict and judgment so amended be affirmed, and that the slave Charles be discharged.


author: Oole, J.

text:
    State v. Artemius Bennett.
    When, in a criminal case, tile question was asked a juror, examined on liis voire dire, 11 Have you 01* not formed or expressed the opinion, from what you have heard of the case, that the defendant is guilty”? — Held: That the question was not in. legal form, and that the District Judge in refusing to allow it to he answered, did not abuse the discretionary power to overrule interrogatories not in legal form.
    The physical and mental condition of the person, whose dying declarations are offered in evidence, is a question of fact over which the Supreme Court has no jurisdiction.
    The 3d section of the Act of 1855, relative to the drawing of juries, fully recognizes the right of the court to order talesmen to be summoned after the regular panel has been exhausted ; and the prisoner has no right to require that the list of talesmen summoned, should be sorved upon him two days before the trial.
    On the examination of a juror on his voire dire, the question was asked him,tc In case the defendant is found guilty of murder, have you made up yow' mind, as to what degree of punishment ought to he inflicted upon him” ? — Held: That the question was not properly put, and that the District Judgo did not err in refusing to allow it to be answered.
    from tlie District Court of the Parish of Caddo, Cresxvell, J.

      Stubbs & Williamson, for State. Rowland Jones, for defendant and appellant.
   Oole, J.

The accused having been found guilty of murder and sentenced to be hung, has appealed, and relies upon five hills of exception :

1. The court did not err in refusing to allow the following question to be propounded to certain persons, called to serve as jurors, when they were being examined on their voire dire: “ Have you or not formed or expressed the opinion, from what you have heard of the case, that the defendant is guilty” ?

The question was not in legal form. It may be, a person may have formed an opinion of the guilt of an accused from rumor, yet that this opinion has not been so deliberately created, hut that it may he changed by the testimony upon the trial.

The District Judge has a certain discretionary power to overrule questions not in legal form, and we cannot say that he abused it in rejecting the interrogatory. The State v. George, 8 Rob. 538 ; State v. Brown, 4 An. 506 ; Burr’s trial, p. 416 ; volume 1st Wharton’s American Criminal Law, p. 605 et seq.

2. The counsel of the accused also propounded to the same persons, the interrogatory : “ Whether, if they went into the jury-box in their present state of mind, they went there with the belief that the defendant was guilty of murder, as charged in the bill of indictment.”

The District Judge properly sustained the objection to the question. It was not in the usual form ; and besides, the District Judge appends to the bill of exceptions, the following remarks : “ The jurors had answered, they had neither formed or expressed any opinion as to the guilt or innocence, and had qualified themselves, as to opinion, fully.” Sj

As these persons had been already examined upon the state of their minds upon the guilt or innocence of the accused, and had shown themselves to be good jurors, a repetition of questions upon the same point, would have been useless, and the District Judge had the discretionary power to reject the question.

3. The declarations of Jordan, the deceased, before his death from the injuries received from the accused, were objected to on the ground, that they were not made in extremity, when the former was at the point of death, and when every hope of this world was gone.

The physical and mental condition of Jordan, at the time of the declarations, is a question of fact, over which this court has no jurisdiction. State v. Haase, 14 An. 79.

4. The counsel of the accused objected to the talesman, J. M. Williams, as incompetent:

First. Because, under the law prescribing the mode of drawing and summoning jurors, there is no provision made for the selection and drawing of tales-men.

Second. Because the law provides in his favor, that he shall have a list of the jury, which are to pass upon his trial, delivered to him at least two entire days before the trial, which privilege he claims and insists upon availing himself of.

Third. Because the name of the juror was not drawn from the box containing a list of the qualified jurors, but was without notice to the prisoner and without his consent, unlawfully selected and summoned at the mere arbitrary discretion of the Deputy Sheriff.

Fourth. Because, by forcing upon him talesmen as his triers, he may be deprived of the advantage of a change of venue, which may be ordered by the court, where it shall be made apparent that no competent juror of the parish can be had “ after exhausting two successive panels.”

The Act of the Legislature of 1855, section 3d, relative to the drawing of juries, provides, that “ nothing herein contained shall be so construed as to prevent any person from being summoned on a special venire, or as a talesman.” Session Acts, 1855, p. 299. •

This proviso recognizes the right of the court to order talesmen to be summoned after the regular panel has been exhausted.

The object of the law in permitting the'call of talesmen, is to effect a speedy trial, and if the objections of the accused were valid, this object would be defeated, and the summoning of talesmen would be virtually abrogated.

We are of opinion that the court did not err in overruling these objections. State v. Reeves, 11 An. 686 ; State v. Bunger, ante p. 461.

5. The counsel of the accused proposed to certain persons being examined on their voire dire, the following question: “ In case the defendant is found guilty of murder, have you made up your mind as to what degree of punishment ought to be inflicted on him” ?

Even if the decision in the ease of The State v. George, be applicable to freemen, and a person be incompetent as a juror, if he has formed an opinion as to the nature of the verdict, so far as the punishment is concerned, still the question was not properly put.

The question, if admissible, ought to have been, whether he had formed such a deliberate opinion as to the nature of the punishment to be inflicted, in the event the prisoner were found guilty of murder, that it could not be affected or changed by the evidence. State v. George, 8 Rob. 538.

The court did not, therefore, err in refusing to allow the question to be answered.

The court erred in fixing the day of execution.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be so amended, as to reverse that portion of it which fixes the day of the execution of the sentence ; and further, that it be so amended, that the sentence shall be executed upon the day that shall be fixed by the Governor of the State of Louisiana, and that the judgment so amended, be affirmed.

Land, J., having been retained as counsel in this case, recused himself.