author: Manning, J. Bermudez, C, J.

text:
    No. 8699.
    Succession of Susan B. Thomas.
    Personal or movable properly lias its situs at the domicile of the owner. Its administration is governed by the laws of that domicile. Movable property iu another State belonging to a testatrix must be administered by the court of her domicile.
    Where the value of a succession is less than one thousand dollars, this Court has not jurisdiction to entertain any question relating thereto. The amount of the claim preferred against the succession is not the test of jurisdiction, but the fund to be distributed.
    áPPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Andrew S'. Wilson and Jas. B. Guthrie for Opponent, Appellee:
    Iu a suit, the application of a party for letters of administration on a succession, the record must show that there is property within the jurisdiction of the Stale and this Court. In such a suit, the existence of the property and the value thereof must be apparent in the record, and in an amount equal to, or exceeding $1,000 ; otherwise, the Supreme Court cannot entertain j urisdiction, and the appeal must be dismissed. Art. 81 Const, of 1879 ; 32 An. 1136, U20, 932; 34 An. 585; 33 An. 416; 27 An. 676; 24 An. 94; 22 An. 272. 622; 30 An. 370 ; 21 An. 193; 25 An. 266.

      H. B. Edwards and Geo. L. Bright for Appellant.
   The opinion of the Court was delivered by

Manning, J.

Susan B. Thomas died at Biloxi, Mississippi, in July, 1876. On Aug. 4, 1881, Louis J. Bright of this City applied to the Civil District Court for letters of administration upon her estate, alleging that the deceased was a resident of New Orleans, and had left some property and effects within the jurisdiction of the court, and that her succession had never been opened and administered by her heirs, if any ■she have—that the deceased was indebted to him at the time of her death in the snm of thirty-two hundred dollars (amended afterwards and increased to $3,800,) and that an administration was necessary, and praying to be appointed administrator.

Edwin T. Merrick opposed the application, alleging that he was the nephew of the deceased and her only heir resident in Louisiana, and lias in that capacity the best right to the administration of the decedent’s estate if any were needed, which lie denies. He also denies that the deceased is or was indebted in any manner to the petitioner, and avers that neither during her life, nor since her death until the filing of this petition, did the petitioner ever protend to be her creditor—that the petitioner never had any dealings with her, but prior’ to 1874 had often invited her to visit his house and accopt his hospitality as his guest and relation of his wife, and did not incur any indebtedness thereby. (The alleged indebtedness of the deceased is for 76 months’ board—from March 1, 1870, to July 1, 1876—at fifty dollars a month.) The opponent further avers that if there was any indebtedness as charged, it belonged to the community betweon L. J. Bright and his wife, now deceased, and that no mention thereof nor claim thereto is made on the inventory lately taken by him of the community property. Finally the opponent alleges that the estate of the deceased is under administration in Harrison County, Mississippi, where she had her domicile at the time of death, that an administration here is wholly unnecessary, but if it be necessary that opponent prays to be entrusted with it.

Upon this issue the parties went to trial, the extent and range of inquiry filling a transcript of near seven hundred pages, which resulted in a refusal of the administration. The applicant appealed, and the opponent now moves to dismiss the appeal on the ground that there is no evidence of property in this State belonging to the succession of sufficient value to give this Court jurisdiction.

The applicant contends that our jurisdiction is to be tested by, the sum he claims, but that is a mistake. The value of the succession—■ the property to be administered—determines the jurisdiction in this case.

Mrs. Thomas was a resident of Mississippi at the time of her death. She died at Biloxi in that State, and her succession was opened there, and is now under administration of an officer called the county administrator. The inventory taken there, which is so minute as to embrace several articles of one cent in value, shews her trunk and wearing apparel to have been appraised at $34.41, and the only other property to be nine notes of $1,000 each executed by D. T. Merrick, which were secured by mortgage on a plantation in this State. The mortuary proceedings in Mississippi also shew the will of the deceased constituting this debtor her universal heir, after directing the payment of $100 to a niece and $1,000 to a Chinese girl named for her and under care of some mission school, and appointing her nephew E. T. Merrick, executor. The executor declined to qualify and thus the Mississippi official administers with the will annexed. The funeral expenses and the legacies were paid by E. T. Merrick to prevent the sale of the notes, which were the ouly asset that -would realize anything at a sale. There is also a statement made by him that there is a balance of about $400 of a loan of money to him which is prescribed, and it may here be noted that the opponent pleaded prescription (three years) to the petitioner’s claim. The notes and other inventoried property are in possession of the Mississippi administrator.

From all which it appears that there is nothing in Louisiana that can give jurisdiction to this Court. The only property the decedent died possessed of is personal or movable, and this species of property follows the domicile, and is administered by its laws. Its disposition or transmission by inheritance depends on the law of that domicile, and this is especially true of debts which follow the creditor’s person. Sue. Packwdod, 9 Rob. 438. The applicant filed his affidavit at the last moment alleging his interest in the succession to be more than the appealable sum. That will not suffice to give us jurisdiction. Sentill vs. Demás, decided this morning.

The lower court rejected the application. We pass on nothing but the motion to dismiss, which we sustain for want of jurisdiction because of insufficiency in amount of value of succession in this State, and it is accordingly ordered that

The appeal is dismissed.

On Application for a Rehearing.

Bermudez, C, J.

Our decision dismissing the appeal is assailed on six specified grounds:

1. That we erred when we said that the claim of appellant is not such a matter in dispute as gives this Court jurisdiction.

2. That on the motion we passed on a question of domieü, at issue on the merits and which could be determined only when passing on the same 5 that this decision takes the appellant by surprise and that lie should liave au opportunity to be heard on it.

3. That there are errors of fact in the decision, “'when this Court said that E. T. Merrick prevented the sale of the notes, and when it passed on the question of prescription.”

4. That the test of the jurisdiction of this Courtis, whether the judgment of the court below would operate res judicata; that such judgment will so operate, as appellant’s claim is over the appealable amount.

5. That the debts owing the succession here amount to $1,900.

6. That “ the decision of the Court is inimical to Article 81 of the Constitution of 1879, and cannot be reconciled with it.”

First. We have not held that the claim of the appellant was not “ a matter in dispute.” It was such, not, however, for the purpose of recovering a money judgment against the succession, but only for the purpose of having himself appointed to the administration of the same. Had the appellant brought a suit against the succession, .however properly represented, praying for a money judgment under the provisions of Art. 986, C. P., and had his demand been rejected, there is no doubt that, as his claim would have been for more than $1,000, he would have been entitled to an appeal to this Court and we would have had to pass upon it; but he has not followed, nor could lie pursue that course, as there is no one representing the succession in this State. This results not only from the facts of the case, but from the very petition for an administration, in which it is distinctly averred that the succession is unrepresented. If it were, how could the application for an administration stand.

We merel5v said, that from the fact that the appellant claims to be a creditor for more than $1,000, it does not at all follow that we have jurisdiction over a contest for the administration of a succession, the assets of which do not exceed $1,000. In other 'words, we hold that the amount of a claim preferred in such a contest is not the test of our jurisdiction. In such controversies that question is to be determined by the value of the matter in dispute, the possession of which is sought, which in succession cases is the value of the assets, regardless of the liabilities. Const. 1879, Art. 81; C. P. 876; 32 An. 1136, 1120, 932; 34 An. 585; 33 An. 416; 27 An. 676; 24 An. 94; 22 An. 272, 622; 30 An. 370; 21 An. 193: 25 An. 286.

Second. We did not decide that the domicil of Mrs. Thomas was in Mississippi, and not here. It was not a matter at issue on the motion to dismiss, which involved merely a question of jurisdiction. We are at a loss, however, to perceive how the appellant can insist that she was domiciled in Louisiana, when, in his petition for the administration of her estate, he states that she was a resident of New Orleans. That circumstance did not make her domicil to be in that city. The difference between a residence and a domicil is elementary. State vs. Steele, 33 An. 911. Even if she were domiciled, as stated, that fact would not vest this Court with jurisdiction. Many are those who die, domiciled in Louisiana, over whose estates this Court has no jurisdiction. If Mrs. Thomas, although domiciled in Mississippi and a mere resident of Louisiana, had died, leaving property here exceeding in value $1,000, surely this Court would have had jurisdiction over the contest for the administration of her estate; but such is not the fact, as was decided and as will, at the proper moment, be established.

Third. We do not think that we committed an error of fact when we stated that the funeral expenses and the legacies were paid by E. T. Merrick to prevent the sale of the notes, for the record bears out that fact. Even had we committed a mistake in this regard, we do not see how, taking the fact to he to the reverse, the circumstance that the funeral expenses and the legacies could have constituted an asset; for it is only where the assets exceed $1,000 that this Court has jurisdiction.

We did not pass on the question of prescription, for we left the claim untouched, saying so expressly. We merely stated that prescription had been pleaded.

Fourth, Whether the judgment appealed from constitutes or not res judicata, is not a question requiring examination for the determination of our jurisdiction. This Court has jurisdiction in cases where the lower court, in a claim exceeding $1,000, when judgment is asked for as much, dismisses it, as in case of non-suit; therefore, when the judgment is not susceptible of forming res judicata. It is not what an inferior court decides which determines the question of jurisdiction, which is fixed by the nature of the demand existing at the time when it is passed upon. 34 An. 864.

The judgment appealed from merely settles the question that, under the showing made, the petitioner is not entitled to be appointed administrator. It does not purport to decide that the petitioner is not a creditor, nor that the domicil of Mrs. Thomas is here, or there. It simply declares that there shall be n'o administration of the succession here. That judgment is final and not revisable by this Court, for the reason that it is not shown that Mrs. Thomas left assets in this State exceeding one thousand dollars. Whether that judgment is revisable by another court is a question on which we have no opinion to express.

Fifth. It is.not shown that the assets said to be left by the deceased in Louisiana exceed $1,000. No inventory was taken or offered to be taken. The testimony at page 410 of the record, strenuously relied upon to establish that Mrs. Thomas left $1,900, does not prove that fact. The witness says, that he supposes that, at the time of her death, there was some three or four hundred dollars, or, may be over four hundred dollars that he owed her ; that he did not consider it as a debt now, (then) more than three years having elapsed, and his having advanced for ” the estate fifteen hundred dollars, which could neither be considered as payment, nor compensation for this money lent.

We cannot see how that testimony can be invoked to show an indebtedness of $1,900 by the witness to the estate. It rather proves a liability of the latter, in his favor, for the amount advanced, if such advance be a fact.

The appellant has not even filed an affidavit to show the value of the succession, although he has submitted one to show that Ms interest in it exceeds the lower limit of our jurisdiction. His interest, were it of a million of dollars, would not; make the assets to be worth more than $1,000, if such was not tho fact.

Sixth. The decision of this Court, far from being “ inimical” to Article 81 of the Constitution, is in perfect accord with both its letter and spirit, which forbid the Supreme Court from entertaining jurisdiction in civil cases, where the matter in dispute, or the fund to be distributed does not exceed one thousand dollars. In tho present Instance, we find neither a matter in dispute, nor fund to be distributed exceeding $1,000,

The theory on which the appellant argues seems to be ¡ that the jurisdiction of this Court in succession matters is to be tested by tile amount of liabilities. We hold, and justly, that it is tobe tested by the amount of the assets. C. P. 876; 14 An. 240.

We are, therefore, strictly observing the State’s paramount law, when We soy that we have no jurisdiction to review the judgment appealed from.

Rehearing refused.


source: Caselaw Access Project

author: Bbrmcdbb, C. J.

license: Public Domain

text:
    No. 8717.
    The State of Louisiana vs. Frank Thomas.
    Act 44 of 1877, relativo to jury commissioners, was not repealed by the Constitution, with Which it Was not inconsistent. If Act 54 of 1880, on tile same subject, was not passed in furtherance of Article 118 of the Constitution, the formor Act Was in force at tho time of tbe trial of this Case. If it Was, as it continued Act No. 44, under which the commissioners were appointed, there is no cause of complaint.
    It is no valid objection that the selection of jurors Was not made from all qualified voters, but from the registered voters, when it is not shown that tbe list of the latter did not contain tbe names of all the former.
    That the accused was manacled, while a motion for a new trial was being tried, is no ground for a motion in arrest of judgment, which reaches only intrinsic errors patent on the face of the record and Which vitiate the proceedings.
    A proceeding to falsify the judgment can be entertained on a proper showing. That a petit juror was a member of the grand jury.who found tho bill, should be urged by challenge at the proper time, and Cannot avail on a motion in arrest.
    APPEAL from the Twenty'-third District Court, Parish of Iberville. Cole, J.
    J. O. Sgan, Attorney General, for the State, Appellee s
    Ik “ All objections to the manner of drawing juries, or to any defect or irregularity that can be pleaded against any array or venire, must be urged on the first day of the term, or all sucli objections shall be considered as waived, and shall not afterwards be urged.” See. 11, Act No. 44 of 1877 k
    2» Act No. 44 of 1877 is not in conflict with nor repealed by Arts. 116, 47 and 48 of the Constitution of 1870.

      3. Ifc lias been continued in torco and effect by Act No. 54 of 18a0.
    4. Act No. 54 of 1880 ia not a “ looal ” or “ apeoial ” law and does not oontravoue Art. 47 of • the Constitution.
    5. The térros “local ” and “special” arc used in contradistinction with “public,” in reference to laws.
    6» Act No. R4 of 1880 ombraoes but one object, the formation of good añd impartial juries, and that object is expressed in ito title.
    7. The fact that the accused retuaiued manacled during the trial of the motion for a new trial, is not a sufficient ground on which to base a motion in arrest of judgment.
    8. "When an appeal has been granted to the Supreme Court, the lower court has no farther jurisdiction over the cae© in which the appoai was taken until it is passed upon and sent back by the Supreme Court.
    0, A motion for a new trial or in arrest of judgment based on the ground that one of the grand jurors who found the indictment also served on the petit jury, will not prevail. Watermau’s IT. 8. Grim. Digest., See. 7 et seq, p. 363 $ and Sec. 50 el $eq>, p. 44»
    10. Neither is said ground sufficient to falsify, annul, avoid and stay execution of a judgment»

      J. B. Mils and Barrow & Pope for Defendant and Appellant.
   The opinion of the Court was delivered by

Bbrmcdbb, C. J.

The defendant was convicted of manslaughter and sentenced to five years at hard labor.

He first moved for a now trial and next, failing in that, for an arrest of judgment. Upon the refusal of the last motion, he asked that the Verdict and sentence be falsified and annulled j but this prayer was disallowed.

He appeals from the verdict aud sentence and from the several rulings of the Court, '

The motions for a new trial and that in arrest are based mostly upon the same grounds and may be considered together.

He claims t

1. That the jury commissioners were appointed under Act No. 44 of 1877, which, at the time, had been repealed by the Constitution now in force.

2. That there was no law in existence at the time of his trial for the selection of competent and intelligent jurors, for the purpose of eerviug as grand aud petit jurors.

3. That the lists Were not compiled from all Qualified persons, .but from registered voters.

4. That he was held manacled and under restraint during the trial.

First and Second. Act 44 of 1877 was not repealed by the Constitution. It was in no manner inconsistent with its provisions and so was expressly continued in force, as if the Constitution had not been adopted. Arts. 258, 259,

It is true, that the Convention (Art, 116) directed the General Assembly, at its first session, to provide by general law for the selection of competent and intelligent jurors, who shall have capacity to serve as grand jurors and try and determine both civil and criminal cases, etc., but it was not designed that, prior to the action of the legislature in ca.rr.ting out this injunction, all the existing laws on the subject of the selection of jurors should be recalled.

In furtherance of this behest of the Convention, the legislature did adopt Act 54 of 1880, which declares that jurors shall be drawn in the manner pointed out by law.

It is contended that the legislature stopped before completing' its duty and that it transgressed constitutional prohibitions when it adopted and continued in force, in globo, all the laws in existence on that subject matter, as there was both a special law for the Parish of Orleans and a general law for the other parishes.

It is needless to inquire whether the Act of 1880 is or not in conformity with Article 116. If it is, the defendant has no occasion to complain. If it is not, then as the Article is not self-operative and as the Act of 1877 is not inconsistent with the Constitution, it has not ceased to exist, and was good authority for the appointment of the jury commissioners.

Third. The complaint that the selection of the jurors was not made from all persons qualified to serve as jui’ors but confined to the list of registered voters, if not too late, because not urged on the first day of the term, as required by Sec. J1 of Act 44 of 1877, has no merit. It is not shown that the list of registered voters did not contain the names of all persons qualified to serve as jurors.

Fourth.. The objection that the accused was manacled while the motion .for a new trial was being tried, is no ground for a motion in arrest, which can reach only such intrinsic causes or errors as are patent on the face of the record and vitiate all the proceedings.

The presence of the accused at the trial of that motion was not a matter of right and was therefore unnecessary.

It may be proper to state, however, that it does not appear that the accused objected thereto ; that he requested the removal of the manacles ; that the court even noticed the fact; that the accused suffered any injury; that it was not necessary that he should have been thus treated, to prevent his escape or secure his proper behavior.

The defendant complains that the District Judge refused his motion to falsify the judgment.

The State excepted on three grounds:

1. An appeal having been granted the Court was without further jurisdiction;

2. The motion is in the nature of a challenge to the array, and the ground set forth is no basis for such motion ;

3. The proceeding is irregular and without precedent.

This last objection should be considered first.

First. Blackstone, Yol. IY, Ch. xxx, on Public Wrongs, says, that judgments, with their several consequences of attainder, forfeiture and corruption of blood may be set aside, either by falsifying, or reversing the judgment, or by reprieve or pardon.

A judgment maybe falsified, reversed or avoided without-writ of error, for matters foreign to, or dehors the record, that is, not apparent on the face of it. Thus, if any judgment whatever be given by persons who had no good commission to proceed against the person condemned, it is void and may be falsified by showing the special matter. See, also, Kerr on Fraud aud Mistake, pp. 293, 294.

In a proper case, therefore, a proceeding to that end should not be discountenanced. Whether a sufficient reason was exhibited in the present instance will be considered at the proper time.

Second. The second objection, that an appeal having been granted, the Court was without jurisdiction, is not in itself sufficient. It certainly would be where the cause alleged existed, to the knowledge of the appellant, who did not take advantage of it, if bo.und to do so, at the proper moment; at least, before appeal.

Third. The motion is in the nature of a challenge to the array. It comes too late, and the ground alleged is no basis for the present proceeding. It does not show that the accused did not know, before the juror was sworn, that he was the same person, or was one of the grand jury. Indeed, how could it ?

The grounds upon which the judgment was asked to be falsified are, that it was procured by fraud and mistake, and is based on the verdict of the jury, one of whom was fraudulently selected and obtained a seat thereon by a fraudulent suppression of the truth.

It appears that, during the trial the regular panel having been exhausted and the jury to try the case not being selected, the court ordered the sheriff to eall talesmen, whereupon, among others, one Alexander Gross was called. Upon his voir dire, having been asked if he had formed or expressed an opinion in the case, he answered in the negative. Accordingly, he was sworn and sat on the jury. It was shown that this juror was a member of the grand jury, but not that he was one of those who found the bill.

' All this may be and no doubt is true, but that circumstance cannot avail the defendant. No fraud was established.

It is settled, that a motion for a new trial, or one in arrest of judgment, will not be sustained on the ground that one of the grand jurors who found the indictment was one of the jurors who tried the case.

Persons thus officiating cannot be said to have no good commission to proceed against the accused. The objection would have constituted a good ground of challenge, but cannot avail on a motion in arrest of judgment. 32 An. 1162. 6 An. 340; 8 R. 596; Waterman’s Crim. Dig. p. 363, Secs. 7 to 11; p. 444, Sec. 50, et seg.

The defendant has not shown that any legal injury has resulted to him from the action of the juror.

It is, therefore, ordered, that the judgment appealed from be affirmed.


author: PochiS, J.

text:
    No. 8719.
    The State of Louisiana vs. Robert West.
    Under the provisions of Aot 44 of 1877, the District Judge has tho disorotionary power to order tho drawing of additional jurors to servo as regular or as talosmau jurors; and under tho same authority ho has tho power to discharge tho jurors so drawn, if he thinks that their sorvicos are no longer neoossary.
    APPEAL from the Twelfth District Court, Parish of Rapides. JBarbvn, J.

      J. 0. JEgan, Attorney General, for the State, Appellee.

      II. L. Daigre for Defendant and Appellant.
   PochiS, J.

The complaint of the defendant, who has been sentenced to hard labor for two years under a conviction for horse stealing, is that, on the day of his trial, which was during the fourth week of the term of the court, the Judge discharged forty talesmen jurors drawn for that week under the order of the Judge, authorized by Section'7 of Act No. 44 of 1877.

The record shows that forty regular jurors had been drawn by the jury commission for the fourth week of that term; and that those jurors were in attendance during that week, and contributed to make up the jury who tried tho case.

Under the Act of 1877, the Judge is vested with full discretionary power to order the drawing of additional jurors to serve either as regular or as talesmen jurors, and to direct that they be summoned without delay, or withiu such time as he may prescribe.

In the ease of Steward, recently decided at Opelousas, not yet reported, we had occasion to consider that Section of the law, and to define the extent of the judicial discretion therein vested, and we there held that under the plain text of the law, the Judge was authorized to draw suck jurors, as a means of providing for the deficit of jurors regularly drawn, who wero absent or could not bo found, or bad been excused.

From the very nature of this disoi’etionary power flows the corresponding discretion to discharge the jurors so drawn, when from subsequent events and from tho state of his criminal docket it appears to the Judge that the services of such jurors would be no longer necessary, Henee the conclusion that, in this ease, the Judge did not transcend his powers and did no injury to appellant in discharging the talesmen jurors drawn for tho fourth week.

In his brief, counsel complains that both the talesmen and the regular jurors drawn for the fourth week had been discharged on rhe day, and before the beginning, of his trial.

But in this he is mistaken, for his bill of exceptions mentions only the discharge of the talesmen jurors, and the record shows that seven of the regular jurors drawn for the fourth week had been sworn on his .RUT-

Judgment affirmed.


author: Todd, J.

text:
    No. 6381.
    Thomas O. Mahoney vs. A. Martin et al.
    Where the terms of a oharfcer party show that the vessel chartered is to oarry freight and pas* sengers, and it ia shown that either freight or passenger» were carried, the charterers will be held commercial partners, and bound in solido.

      It is not a breach of the warranty of seaworthiness, that the master of the vessel was drunlc at the port of delivery whilst the cargo was being discharged, where the duty of discharging devolved on the consignees of the charterers,
    APPEAL from the Fifth District Court for the Parish of Orleans. Cnllom, J.

      J. McConnell for Plaintiff and Appellee:
    Where two persons sign a confcraofc of charter party, by which a vc&sei is hired to them, for the purpose of “ carrying personal property for hire ” therein, such contract constitutes the charterers, quoad that undertaking, commercial partners, C. 0. Art. 2895 (2706) See. 3; 4 La. 106 * 2 Bob. 183 j 1 An. 147 * "Wilinot vs. Steamer Ouachita Belle, 33 An. p, 611,

      Fred I). King and Chas. 8. Mice for Defendants and Appellants:
    1. Commercial partnerships aro never presumed. Two or more persons, joining in a charter party, are not necessarily commercial partners. Such partnership results, if at all, from tho use made of the vessel; that is, the carrying of personal property for hire. If the joint charterers load the vessel with personal property belonging to them, individually or jointly, no such commercial partnership is necessarily created. C. C. 2855.
    2, The charter party is one thing; tho use of the vessel may he such as to oreate a commercial partnership or may not. The charter party is no more the obligation of the partnership than the price of the ship would bo, when bought jointly by two persons, who after-wards used her so as to make the business so carried on in her that of a commercial partnership. Byrne vs. Hooper, 2 Rob. 232, 233.
    3. The seaworthiness of the ship is a wairanty of the sobriety, competency and practical efficiency of the master and crew. A. master drunk and inattentive to his duties in port, and ignorant of the seas through which his vessel is chartered to vo\ age, aud of the winds aud currents he is likely to encounter, renders the ship unseawoithy. 3 Ware, 173; 3 Clifford, 464; 3 Kent, (11th ed.) 278 and 279; The Schooner Sarah, 2 Sprague, 32; Parsons on Shipping aud Admiralty, Vol 1, p. 171; Abbott on Shipping, (12 ed ) pp. 284, 676; Maclachan on Shipping, pp. 381 and 122; Parsons on Shipping and Admiralty, Vol 2, p. 3; 21 How. 23.
    4. Proof ofthe usual time employed in making the same voyage, aud proof of the actual time employed by several vessels on the same voyage aud at the same time, with the one iu question, afford a measure of inattention, incompeteucy and unnecessary delay for which plaintiff is responsible.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, owner of the British schooner Ellen, sues defendants on a contract of charter party, for the use of the vessel for two months and four days, at $700 per month, which, with two items of pilotage and passage money, aggregates $1,513.33, subject to a credit of $452, leaving a balnnce of $1,061.33, for which judgment is asked in solido.

The contract was for a voyage from New Orleans to Belize, Honduras and the Bay Islands and return. The charterers engaged “ to furnish the said vessel a cargo of lumber and general merchandise, and such return freight as might be offered or the agents of said charterers might provide, and were to pay $700 per month of thirty days, and all expenses, except crew and provisions.”

The answer admits the execution of the alleged contract, hut resists the payment of the charter money on the grounds: 1, that the vessel was not seaworthy and not properly officered, manned and equipped; 2, that the management was unskilful, and the voyage delayed unnecessarily for the purpose of augmenting the amount to bo claimed under the charter party; 3, that this delay caused a loss in the cargo of fruit, shipped on the return trip, of $1,000, which sum was pleaded in compensation and reconvention.

There was judgment in favor of the plaintiff for the amount claimed as prayed for, and one of the defendants, Alphonse Martin, has appealed.

There is no doubt that the voyage of the Ellen was an unusually long one ; but we think the cause or causes of detention are satisfactorily explained by the testimony, and the delay shown not to have resulted from any fault in the management or condition of the vessel.

The testimony of the master appears iu the record accompanied by the admission that the mate of the vessel and three seamen would corrobórate bis testimony, thus furnishing the testimony of five witnesses to the same facts.

The causes of the delay thus sworn to were, in substance, adverse winds, calms, and detention in taking on ballast, owing to the failure of the charterers to furnish the labor and proper tools for the purpose.

It is also shown that the appellant- offered to pay $700 in settlement of the amount called for by the contract, and according to the testimony of plaintiff’s agent, at the time of making the offer did not complain of any violation of the contract on the part of the plaintiff, but only that the voyage was an unprofitable one. The defendant, however, in his testimony, says that the offer in question was made by way of compromise, which is denied by the plaintiff’s witnesses referred to.

The defendant produces two witnesses, his agents or employees at Balize, who testify that the master of the vessel was drunk during part of the time that the vessel was in that port, and that the discharging of the vessel was delayed in consequence. There is no charge of drunkenness in the answer, nor is such charge mentioned or alluded to in the interrogatories to these witnesses, and this testimony was taken some months after the Ellen had permanently left with her officers and crew the port of New Orleans, and no opportunity for rebuttal on this point was afforded the plaintiff.

There is no proof of drunkenness or other misconduct of officers or crew during the time the vessel was at sea, and it was shown that the master was duly sober whilst the vessel was at this port, before and after her voyage. The work of discharging the vessel did not belong to her officers and crew, but to the agents or consignees of the vessel; and conceding that the drunkenness of the master for the time stated and whilst the vessel was in port being discharged, is true, we do not think it establishes a breach of the warranty of seaivorthiness contained in the contract.

It is next contended by the defendant’s counsel that the liability of the defendants was joiut and not solidary.

The charter party on its face provides for the carrying by said vessel “of a cargo of lumber and general merchandise and such return freight as may be offered or the agents of said charterers may provide.” This lumber and merchandise the evidence shows was destined for two different points, Belize and Ruatan ; and in speaking of the portion of the cargo shipped to the latter place, the master of the vessel, in his testimony, refers to the bills of lading as showing what that part of the cargo consisted of. This circumstance of the bills of lading would go to show that the charterers were not the owners of all the goods carried by the vessel, as stated by their counsel, for we cannot perceive why the charterers should furnish bills of lading to themselves, and why bills of lading should be given unless freight was to be collected on the goods covered by such bills.

Provision ie also Made in the charter party for tile carrying of passengers, as we find from this expression, “ and for any passengers that may be carried, one-half of the passage money,” etc. And it is shown that at least one passenger Was carried, and the passage money makes one item of tile plaintiff’s account.

We think that these facts and the terms of the charter party constituted the defendants, quoad this entire Venture and engagement, commercial partners, and rendered them liable in sotUhi

In the case of David vs. Eloi, 4 L. 106, it was said s

“ Whether the parties first euter into partnership to carry goods for hire, and then buy a vessel to enable them to do so, or commenced by buying a vessel and then carry goods for hire, they are bound jointly nnd severally j ” language quite applicable to the facts of this case. Bee, also, 32 An. 611; $ C. C. 8825.

Judgment affirmed.

On Arrugación for a Rehearing.

In his application for a rehearing the counsel for defendants complains that we did not attach sufficient weight to the defendants’ witnesses, who testified to the unnecessary delays occurring in the voyage, at Belize and the Bay Islands, and charged to the fault of the master of the vessel.

We did consider and fully weigh this evidence, but We could not give it a preponderating weight over the opposing testimony of the captain and crew of the vessel, a larger number of witnesses, having equal opportunity for knowing the facts, and equal claims for credence. This testimony explains satisfactorily the several causes of detention.

Complaint is also made that we did not mention the subject of the alleged ignorance of the master as to the route or the waters over which he was to sail, and that this circumstance did not control or affect our determination of the case.

We did not attach to it the importance claimed for it. If the vessel was seaworthy, if the master was capable and skilful, the fact that he had never made the voyage before, could not be construed as a fault and assigned as the cause of the delays, in the face of evidence to the contrary. It rather seemed to us that the ignorance of the master in this respect was a matter that should have been considered by tlie defendants before the voyage began, and doubtless was known to them and considered, as it was so easily ascertainable by inquiry, and no concealment is charged.

Rehearing refused.


author: Fenner, J.

text:
    No. 8361.
    John Kerwin et al. vs. Hibernia Insurance Co.
    1. An Insane person in incompetent to prosecute a suit either in her own behalf or as tutrix of minors.
    2. A person who is neither curator nor tutor, cannot bring an iusane person or minors into court, beoause.no judgment rendered would be res adjudícala as to said insane person or minor.
    3. Where a husband has been a party to an act of purchase of immovable property in the n une of liis wife, recitiug that the purchase has been made with her paraphernal funds, and that the property is to be and remain her paraphernal property, neither he nor liis legatees or simple heirs will be permitted to contradict such recitals or go behind the deed. Creditors and/©reed heirs alone can do so, and the latter only to the extent of their legitime, and for the purpose of protecting the same. 31 An. 124 5 33 An. 688; 34 An. 374 ; 9 An. 249 ; 30 An. 1036.
    A PPEAL from the Civil District Court for the Parish of Orleans. Fir/ldor, J.
    2?. 22. Forman for Plaintiffs and Appellants:
    1. An immovable bought during oxistence of the community of acquets and gains, between husband and wife, becomes community property, no matter in whose name the purchase is made, (C. C. 2335 and 2402) and on husband’s dcatb, becomes half the property of widow and half the property of thoir children, and where there are minors, who can only accept with benefit of inventory, the widow cannot validly mortgage any particular immovable. Cestacvs. Florane, 31 An 493; Sentamant vs. Soule, 33 An. 609; Kerwin vs. Hibernia Ins. Co., 23 An. 312.
    2. A person notoriously insane cannot make a valid contract, even if not interdicted. C. C. 1782 (1775,) 402 (395,) 1783 (1781.)

      T. Gilmore c6 Sons for Defendant and Appellee:
    1. In a suit by the heirs of the father to establish the community nature of property upon which third parties have acquired rights based upon the act of purchase by the wife, assisted by the husband, containing the declaration that the purchase is made with paraphernal funds, the question is one of estoppel. Stewart vs. Mix, 30 An. p. 1040; Ib. p, 51; Blanchard vs. Allain, 5 An. 567; Armorer vs. Case, 9 An. 242; Broom’s Lega) Maxims, pp. 206-7, §§ 218, 220.
    2. A man confers no better title than he has, and his heir takes it with the qualifications and limitations with which he has affected it. A presumption of fraud upon the heir will not flow from such acts. Whatever estops the ancestor estops the heir. Broom’s Legal Maxims, p. 452, § 557 and authorities cited, Barbet vs. Roth, 16 An. 271.
    3. A plaintiff cannot plead her own insanity.
   The opinion of the Court was delivered by

Fenner, J.

In 1867, during the existence of the community between Honora Kerwin and her husband, Michael Kerwin, a piece of immovable property was acquired in the name of the former by a deed to which her husband was a party, and which contained the formal recitals that the purchase was made with the wife’s own funds which she acquired by inheritance from her late father and mother,” and that “ the property is to be and remain her paraphernal property.”

Michael Kerwin died in 1868.. In 1873, the widow, Honora Mansfield, accompanied by her daughter of age, Kate Kerwin, called at the office of the defendant Company to make application for a loan upon mortgage of this property.

Subsequently in that year, the mortgage was executed by Honora Mansfield, and the loan was made. Her major son, John Kerwin, was present at the confection of the mortgage, and the check which was given for the larger part of the loan was collected by him upon his endorsement.

The note given for the loan not having been paid at maturity, the defendant Company obtained executory process under which the property was sold in 1875, and adjudicated to the defendant.

The sheriff being about to place the purchaser in possession, the present plaintiffs brought this suit, the objects of which, are: 1st, to enjoin the putting in possession ; 2d, to annul the mortgage and the proceeding-sand sale in execution thereof; 3d, to have the property decreed to belong to the plaintiffs.

The substantial grounds of the proceedings, are: 1st, that the purchase of the property in the name of Honora Mansfield was truly made with community funds, mid the property belonged to the community; 2d, that the note and mortgage executed by Honora Kerwin were null because of her notorious insanity at the time.

Who are the plaintiffs ?

The petition is entitled: the petition of John Kerwin and of Kate Kerwin, heirs of age of the late Michael Kerwin, herein appearing in their own behalf and in behalf of their minor brothers, and sisters (named) and in behalf of their mother, Honora Mansfield, wife of Michael Kerwin, who is of unsound mind and incapable of taking care of herself, and also of said Honora Mansfield, as natural tutrix of said minors and individually.”

We are left in doubt whether it is intended to present Honora Kerwin, individually and as tutrix, as herself a petitioner, or whether John and Kate Kerwin only appear in her behalf. But this is of little consequence.

Two propositions are self-evident: 1st, that Honora Mansfield, if of unsound mind, as alleged, is incompetent to prosecute a suit either in her own behalf or as tutrix; 2d, that John and Kate Kerwin, being neither curators of the alleged insane person, nor tutors of the minors, have no capacity to bring them into court. No judgment rendered herein would be res adjudicata as to the alleged insane mother or the minor children.

No parties plaintiff are, therefore, before us, except John and Kate Kerwin, in their own right and for their own interests.

So far as John Kerwin is concerned, he is conclusively estopped, from questioning either the title of his mother or her capacity, by the facts that he was present at the confection of the mortgage and actually received the money loaned.

As to Kate Kerwin, the evidence as to what transpired at the time when she attended her mother on her first visit to the defendant, is not sufficiently clear and full to bring home to her knowledge of the purpose of the visit or an implied consent to the subsequent transaction. On a different ground, however, her action in the present case must fail.

It may now be considered as settled, that where a husband has been a party t.o an act of purchase of property in the name of his wife, reciting that, the purchase has been made with her paraphernal funds, and establishing and constituting it as her paraphernal property, he will not be permitted, in his own interest, to contradict his own solemn assertions, and attack the title of his wife, established with his own consent and by his own act; and so his legatees or simple heirs, claiming through him, standing in his shoes, and bound, like himself, by his acts and words, are equally debarred. Drumm vs. Klenman, 31 An. 124; Heirs of Compton vs. Maxwell, 33 An. 688; Brown vs. Stroud, 34 An. 374; Armorer vs. Case, 9 An. 242; Stewart vs. Mix, 30 An. 1036.

Only creditors and forced heirs are excepted from this rule, and the latter only to the extent, of their Ugitime and for the purpose of protecting the same. Outside of the' Ugitime, they stand upon precisely the same footing with collateral heirs or universal legatees, having no rights against the decedent., but only rights derived from him and which he himself, if living, might assert.

It is not disputed that the doctrine settled by the above decisions finds apparent, and perhaps real, contradiction in earlier cases; but the Court has considered the subject carefully and adheres to the conclusions announced in the cases quoted.

It follow's, that Kate Kerwin has no-right to attack the title and mortgage of her mother, except in her capacity as forced heir, and to the extent necessary to establish and enforce her Ugitime. In the present suit she asserts no such right, but appears as simple heir only. The record presents neither the parties nor the facts essential to the settlement of such an issue. For aught that appears, she may have already received, from other sources, more than her legitimate portion.

Her rights, as forced heir, will be adjudicated when properly presented.

This case has already been before this Court twice, and decisions have been rendered, reported in 28 An. 312, and 31 An. 339. These decisions are urged as res judicata upon various questions now submitted to us. Tbe mere reading of the issues then before the Court, as stated in the opinions themselves, will show that they did not embrace the points upon which we have now decided the controversy. It is true the decision in 28 Annual contains dicta opposed to the doctrine we have laid down touching the rights of simple heirs to attack the declarations and acknowledgments of their ancestor •, but they are manifestly obiter and not necessarily or properly relevant to the exceptions upon which alone the decree passed.

Judgment affirmed at cost of appellants.

Rehearing refused.


author: Manning, J.

text:
    No. 7547.
    City of New Orleans vs. H. O. Seixas et als.
    An appeallies from an order of the District Court removing a oauso to tho U. S. Court. j Such appeal can be taken by motion in open court as appeals are taken from other judgments.
    The enforced appearance of the appellant from such order in the U. S. Court, pendiug such appeal, is not an acquiescence in, or voluntary execution of, the judgment or order appealed from.
    Only suits involving rights depending upon a disputed construction of tbe Constitution and laws of the United States are removable from the State to tho "National Courts under the words of the Act of Congress, “ arising under” that Constitution and those laws. There must be some question actually involved in the case, depending for its determination upon the correct construction of tho Constitution, or some law of Congress or treaty, in order to sustain the Federal jurisdiction under tbo olause containing those words.
    "When the interest of one or more parties to a suit is so bound up with the others that its legal presence as a party is an absolute necessity, it is an indispensable party, and must be so considered on an application to remove tbe whole suit.
    Congress, in determining the jurisdiction of the Circuit Courts over controversies between citizens of different States, has not provided for the removal from a Slato Court of a suit in which there is controversy not wholly between citizens of different States, and to the full or final determination of which ono of the indispensable partiesen the side seeking the removal is a citizen of tho same State with one or more of tho parties agaiDSt whom the removal is sought.
    APPEAL from the Fifth District Court for the Parish of Orleans. Highior, J.

      JE. If. MeGaleb, City Attorney, and JE. If. Farrar for Plaintiff and Appellant.

      ICennard, Howe & Prentiss and House di Grant for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The appellees move to dismiss on three grounds:

1. That no appeal lies from an order removing a cause to the Circuit Court of the United States.

The contrary has been repeatedly held by this Court. State ex rel. Coons vs. Judge, 23 Ann. 29, and cases therein cited; Goodrich vs, Huuton, 29 Ann. 372; Tunstall vs. Madison Parish, 30 Ann. 472.

2. If such an appeal lies, it can be taken only by petition and citation.

No law nor reason is given for this ground and we know of none. Tiie appeal herein was taken by motion in open court on the same day the order of removal was made, and two days afterwards the appellees were even formally notified of it through the sheriff.

3. That the appellant has acquiesced in and voluntarily executed the order appealed from by appearing in the case in the U. S. Court, and by trying questions in that Court on the merits.

We have already held that on a motion to dismiss on the ground of acquiescence, the issue of fact, if disputed or doubtful, must be referred to the lower court for hearing. N. O. Rail. Co. vs. Cres. City R. R. Co., 33 Ann. 1278. There is a certified copy of proceedings taken in the U. S. Court before us, and an affidavit of the City counsel, and giving to them the consideration we would if introduced in the lower court on a reference, we find they do not sustain the allegation of acquiescence.

The only proceedings submitted to us are a rule upon the sheriff to shewr cause why he should not deliver to the Marshal the certificates of stock in the Water Works Company which had been sequestered; and another to set aside all the writs of injunction and sequestration that had been taken in the State Court; and a third to compel the Company to transfer the stock theretofore sequestered and released, upon which the Company moved that the City of New Orleans be made a party to the rule, and that being done the plaintiff appeared and resisted the rule.

There was thus neither a voluntary appearance nor execution of the order appealed from. The defendants, having procured the removal of the cause to the U. S. Court, there initiate proceedings that provoke and compel the interposition of the plaintiff and his appearance in that forum, and then plead his appearance as a bar to the further hearing of the case in the State Court. This is dragging one against his will to a place, and then pleading his enforced presence there as a reason why he should not return whence he came.

It is settled that if a party failed in his efforts to obtain a removal and wTas forced to trial in the State Court, his appearing there and contesting the case is not a w'aiver of his right. Ins. Co. vs. Dunn, 19 Wall. 214; The Removal Cases, 10 Otto, 457; Dillon on Removals, $$ 84, 88.

It would seem it ought to be equally clear that if a party failed in his efforts to prevent a removal and was forced to trial in the U. S. Court, his appearing there and contesting the case should not be a waiver of his right to a trial in the State Court, nor be considered an acquiescence in the order of removal, if he has continued to maintain that right by appealing from that order and by prosecuting such appeal with diligence.

The motion is refused.

On tiie Merits.

In May, 1879, the plaintiff instituted this suit in one of the District Courts of New Orleans, alleging that she had become the owner of the Water Works by purchase from the Commercial Bank, to which had been granted by the legislature the exclusive privilege of supplying the inhabitants of New Orleans with water from the Mississippi river, and that by sundry enactments of the legislature the “New Orleans Water Works Company” was created, to which petitioner transferred its privileges and received certificates of stock in the same, which were placed out of commerce and declared not to be liable to seizure for the debts of the City, and she was constituted a trustee of that stock for the benefit of the holders of her bonded and floating debt.

The plaintiff avers that 4314 shares of this stock were seized by the U. S. Marshal under writs of fieri facias issuing out of the Circuit Court for the Fifth Circuit, of the U. S., in four suits wherein the City was defendant, and John A. Morris, John Klein and Freeman Clarke were severally the plaintiffs, (the. latter having two suits) and were sold, H. 0. Seixas becoming the purchaser of 3129 shares—that under mandates of said Circuit Court the Water Works Company was compelled to recognize said Seixas as the owner of these shares and to issue to him a certificate therefor, the old certificates having been surrendered and cancelled, all of which was done in contravention of these legislative enactments, and despite the protest of the City made in every stage of these proceedings.

The petitioner further alleges that she fears and believes Seixas will dispose of the stock during the pendency of this suit, and will attempt to collect the dividends thereon unless restrained. She also fears that the Water-Works Compansq unless restrained by injunction, will permit Seixas, or some one for him, to transfer said stock and the certificates thereof to other persons, and will issue to such persons certificates therefor, and will pay over to Seixas or his representatives the dividend that shall accrue during the pendency of this suit.

The petition then alleges that H. 0. Seixas, John A. Morris, John Klein, and the Water Works Company, are residents of this State and. City, and Freeman Clarke resides out of the State, and prays for citation t© these parties (to Clarke through a curator ad hoc to be- appointed for him) and that writs of sequestration issue commanding the sheriff to take these certificates of stock iuto his possession, and an injunction also issue prohibiting Seixas from transferring the stock pretended to have been purchased by him, and from collecting- the dividends thereon, and that the Water Works Company he also in-joined from allowing Seixas to transfer this stock, and from paying to him any dividends thereon, and further prohibiting said Company from issuing to Seixas or his transferree any new certificates in exchange for those in his possession.

The several writs thus prayed for were issued and served.

A supplemental petition was then filed making John A. Walsh a party defendant on the allegation that he pretends to have become the purchaser of this stock from Seixas, and renewing against him all the allegations of the original petition, and praying for the writ of injunction to restrain him as the other defendants had been restrained.

The defendant, H. 0. Seixas, then presented bis petition for the removal of the cause into tile IJ. S. Circuit Court, alleging that he is a citizen of Mississippi, that the amount in dispute exceeds five hundred dollars exclusive of costs, that the plaintiff is a citizen of Louisiana, and the defendant, the Water Works Company, is also a citizen of Louisiana, that the defendants, Morris and Clarke, are citizens of New York, and Klein, of Mississippi—that the title to the shares of stock in dispute was derived by him through and under a sale by the Marshal of the United States for the district of Louisiana, made pursuant to writs of fieri facias issuing out of the U. S. Circuit Court, in execution of a judgment of that Court against the plaintiff. Walsh presented his petition also making the same allegations with the additional one that he is a resident of New York, and the same prayer.

The case was removed to the U. S. Circuit Court.

The plaintiff appealed from the order of removal, and we have now to determine whether that order was rightfully made. '

The petition for removal states two grounds: 1, citizenship ; 2, that the petitioner’s title is derived from a sale made by the U.' S. Marshal tipon a fieri facias from the Federal Court.

This latter of itself is not a cause for removal. It does not necessarily follow that the right of the petitioner under such sale depends upon the construction or effect of the Constitution or a law of the United States. He does not allege that his right depends upon such construction. Only suits involving rights depending upon a disputed construction of the Constitution and laws of the United States can bo transferred from the State to the National Courts under the words “ arising under ” in the Act of Congress. There must be some question actually involved in the case, depending for its determination upon the correct construction of the Constitution or some law of Congress or treaty, in order to sustain the Federal jurisdiction under the clause containing those words. For example, a case relating to the title to land is not one of Federal jurisdiction, although the title may be originally derived under an Act of Congress, if no question arises, or is raised, as to the validity or operative effect of the Act, and the rights of parties depend upon State statutes or the geueral principles of law. Dillon ou Removals, 4 31.

In the present case the rights of parties depend especially and pecu- ' liarly upon ¡átate statutes.

In examining the other ground of removal, citizenship, we have iirri to consider whether the Water Works Company is a mere nominal or an indispensable party defendant.

The City alleges that she fears this Company, unless restrained, will permit Soixas to trausfer this stock and the certificates, and will issue to his tranaferrees new certificates, and will pay the dividends to them, and this danger was so imminent that she injoined the Company from doing any of these acts, Her object in the suit quoad, this defendant is the restoration of this stock on the books of the Company to her name, and the future recognition of her rights to and iu the stock. The interest of the Company in the subject matter of the suit is so bound up with that of the other parties that its legal presence as a party to the suit is an absolute necessity, and thus this case falls within the compass and is controlled by the reasoning of the Court in Kendig vs. Dean, 7 Otto, 423, and Dewing vs. Perdicaries, 6 Otto, 193.

Then there is a defendant of the same citizenship as the plaintiff. Can there be a removal under the Act of Congress of March. 3, 1875, under those circumstances?

That Act has been interpreted by the Supreme Court of the United States. The first clause of its second section has been held to mean that when the controversy, about which a suit in the State court is brought, is between citizens of one or more States on one side and citizens of other States on the other side, either party to the controversy may remove the suit to the Circuit Court without regard to the position they occupy in the pleadings as plaintiffs or defendants, and that upon arranging the parties on opposite sides of the real and substantial dispute, if it appears that those on one side are all citizens of different States from those on the other, the suit may he removed—all those on the side desiring a removal sending in the application therefor. Removal Cases, 10 Otto, 457.

And in a subsequent case the same Court said: It is to he presumed that Congress, in enacting the statute of 1875, had in view as well the previous enactments regulating the removal of causes from the State Courts, as the decisions of this Court upon them. If it was thereby intended to invest the Circuit Courts with jurisdiction of all controversies between citizens of different States, although others might be indispensable parties thereto, such intention would have been expressed in more explicit language. We are not disposed to enlarge that jurisdiction by mere construction. We are of opinion that Congress, in determining the jurisdiction of the Circuit Courts over controversies between citizens of different States, has not distinctly provided for the removal from a State Court of a suit in which there is a controversy not wholly between citizens of different States, and to the full or final determination of which one of the indispensable parties, plaintiffs or defendants, on the side seeking the removal, is a citizen of the same State with one or more of the plaintiffs or defendants against whom the removal is asked. Blake vs. McKim, 13 Otto, 336; see, also, Hyde vs. Ruble, 14 Otto, 407; Stafford vs. Twitchell, 33 Ann. 520. This is decisive of the question.

It is therefore ordered and decreed that the order of the lower court transferring and removing this cause to the Circuit Court of the United States is rescinded and reversed, and said lower court is directed to proceed in the trial thereof, the movers, H. O. Seixas and John A. Walsh, paying the costs of this appeal.


author: Bermudez, C. J.

text:
    No. 8021.
    The Citizens’ Bank of Louisiana vs. Wm. B. Hancock.
    An attachment against a non- resident should not be dissolved because the petition covered by the affidavit alleges his residence to he in a named county, Louisiana, when the same petition refers to a petition filed by him, in which he represents himself as residing in the same county, Indiana. It is a clerical error, almost evident. It would be futile to dissolve an attachment in such a case, when, on proper correction, oath and bond, another would
    A judgment for a deposit, against which compensation could not he pleaded, can be attached by the depositary. The character of the claim has been merged into the judgment, and cannot be invoked to resist the seizure, in an action where compensation is not set up.
    APPEAL from the Third District Court for the Parish of Orleans. Mwu'oe, J.

      Armand Pitot for Plaintiff and Appellee :
    1. Under the decision of the suit of Hancock vs. Citizens’ Bank, 32 An. 590, reserving the rights of the Bank to proceed by proper action, an ordinary suit with process of attachment, the defendant being a non-resident, is a proper action. Case of Purvis vs. Reed, quoted by defendant, not applicable to the case at bar.
    2. The suit of Hapcock vs. Bank, 32 An. 590, was not tried on its merits. The Bank’s plea of compensation was rejected and its rights reserved to proceed by proper action.
    3. Judgment of the Court a qua was upon the admission of a deposit. This was an error, as no deposit was admitted, (See Petition, R. p. 3) and the question to be tried on the merits is, deposit or no deposit.
    4. Reservation of the Banks’s rights in suit of Hancock vs. Citizens’Bank 32 An. 590, is not obiter dictum, and under said reservation theBank was authorized to institute proceedings for recovery of money paid through error. Hancock being a non-resident was brought before the forum of the Third District Court by the attachment of his property, to-wit: the judgment in his favor.
    5. Prescription has had no time to mature between the decision of the Supreme Court in 32 An. p. 590 and the institution of the case now on appeal. Prescription could not run during the pendency of the first suit by Hancock vs. Citizens’ Bank.
    6. The relations of hanks and depositors have nothing to do with the claim made for money paid through error by crediting one person with a deposit made by another.
    7. Affidavit for the attachment in the case at bar is sufficient. Tbe Bank, through its proper officer, swears that “ all the facts and allegations in the petition are true." The petition states the amount duo, and that the defendant was a nou-residont. Miller vs. Chandler, 29 An. 89 ; Cross vs. Richardson, 2 N. S. 328.
    8. The allegation in the Bank’s petition that “Hancock resides in the State of Louisiana, Ployd County,” is an error of the pen. The error was corrected: 1st. In the plaintiff’s petition (Rec.p.3) where Hancock’s residence is given, out of his own mouth, as being in the State of Indiana, Ployd Co. 2d. Iu Hancock’s petition, in his first suit againt the Bank, filed by him in evidence, whore be allogos that he resides in Indiana, Ployd Co.; (Reo. p. 17.) 3. By the declaration of tbe Supreme Court in tbe reservation in favor of the Bank. “ Grammatical or clerical error do not vitiate proceedings if there he no ambiguity nor uncertainty. Bernard Klotz vs. Maoready et al., decided on the 4th Deoember, 1882."
    9. Hancock’s transferee bound by the reservation contained in favor of the Bank to prooeed by proper action in Hancock vs. Bank, 32 An. 590.

      Merrielc, Poster & Merrielc and J. PL. Ferguson for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment dissolving an attachment levied on a judgment recovered by the defendant against the plaintiff in this Court in 1880. 32 An. 590.

Two grounds are relied upon for the dissolution: 1st, the insufficiency of the petition and affidavit; and 2d, the privileged, character of the claim seized.

First. The objections to the insufficiency of the proceeding consists in the description of the defendant’s residence as being in Eloyd County, Louisiana.

On the trial of the rule to dissolve, it was shown that this was a clerical error, by tbe recital of Hancock himself, in his petition in his suit against the Bank, in which he stated his residence to be in Floyd County, Indiana.

The error was presumable, almost evident. It is palpable, as there are no counties in Louisiana, and as attachments issue mainly against non-residents of the State.

Besides, the petition in the present case refers to the suit of Hancock against the Bankj in which he styled himself a citizen of the State of Indiana, residing in Floyd County.

Whatever the error was, it would be futile to dissolve an attachment on that ground, as, upoD proper correction, oath and bond, the writ could issue de novo.

Second. In the case to which reference is made, as decided by us, the plaintiff, Hancock, claimed the amount of a sum figuring to his credit on the books of the Bank. His demand was resisted on the ground that he was indebted to the Bank for an overdrawn amount, compensation being pleaded. We decided that the Bank could not set that defense against a deposit; that she could have set it up in the shape of a reconventional demand and without at all trenching upon the merits of such claim, we reserved her right to proceed by proper action for the recovery of the same.

The proposition is unwholesome, that by attaching that judgment of Hancock, the Bank does indirectly that which she cannot do directly, namely: that she pleads compensation against a claim which cannot be extinguished in that mode, and that by the seizure of it she avoids the payment of a sacred and judicially recognized debt.

We do not understand the Bank as thus pleading. She could have reconvened in the previous action, but did not do so. She has since brought the present suit, the object of which is to recover the amount said to have been overdrawn by Hancock and which she considers herself entitled to recover from him. She couples her action with an attachment to secure the only property of her debtor, that she knows of, within her reach.

It is true that such property is a judgment for a sum declared to have been so deposited with the Bank, that she could not deny it, but that claim, whatever it originally was, has not retained its primitive nature or complexion. Its character and features have been merged or novated in the judgment rendered for it and have sunk into it altogether. The thing once claimed has totally lost its separate existence and has since assumed a distinct and different garb and substance, which is the highest evidence of the debt. Judgments do not confirm , but extinguish causes of action, substituting therefor a new title, importing absolute verity. It is precisely as if the parties expressly had novated the original cause of action by a new contract.

The rendition and entry of a judgment or decree establishes in the most conclusive manner, and reduces to the most authentic form, that which had hitherto been unsettled and which liad, in all probability, depended for its settlement upon destructible and uncertain evidence. The cause of action thus established and permanently attested is said to merge into the judgment establishing it, upon the same principle that a simple contract merges into a specialty. Courts, in order to give a proper and just effect to a judgment, sometimes look behind to see upon what it is founded, just as they would, in construing a statute, seek to ascertain the occasion and purpose of its enactment. The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality; it has expended its force and effect.. All its power to sustain rights and enforce liabilities has terminated in the judgment or decree. It is “ drowned in the judgment.” Freeman on Judgments, 5 215; 9 L. 418; 1 An. 372; 3 An. 386; 7 An. 334; 9 An. 339; 12 An. 736, 565; 14 An. 231; 7 Cranch, 483; 3 Wheat. 234.

Rules are not without exceptions. It would seem that a difference exists where a question of public interest and public good is at stake. 33 An. 17.

If it be true that the Bank has a valid claim against Hancock, she has the undoubted right, on a proper showing, to have its payment secured by mesne or final process, or levy on any property of his within the State. The judgment recovered, whatever its consideration be, enjoys no immunity and is not shielded from seizure.

It is nothing but sheer justice to allow the Bank, if she have the real claim which she asserts against this non-resident, to resort to the conservatory measures of the law to prevent a total and irretrievable loss.

The attachment should not have been dissolved.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and it is now ordered and decreed, that the rule taken to dissolve the attachment herein issued be denied with costs in both Courts.


author: Poché, J.

text:
    No. 8685.
    The State of Louisiana vs. John Henderson and Jonas Mickens.
    In petty larceny there can Toe no accessory. Those who in grand laroeny would be accessories before the fact, under our statute are principals in petty larceny. Henoe, the following charge to the j ury in a case of petty larceny is correct; When a person hires another to commit a theft, and for that reason the* theft is committed by tbe person, thus hired, and the person hiring for the commission thereof enjoys the benefit of the theft, such person is guilty of larceny, although absent at tbe time tbe theft is committed.
    APPEAL from the Seventh District Court, Parish of Franklin. 23lam, J.

      .J. 0. 23gan, Attorney General, for the State, Appellee.

      D. 22. Gorham for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Tliis appeal is taken by Johu Henderson, who was indicted conjointly with Mickens, and convicted as a principal of the crime of petty larceny, and who complains of .the following charge of the District Judge:

“That when a person hires another to steal a hog, and for this reason that person steals the hog, then the person hiring the theft to be committed, if he enjoys the benefit thereof, is guilty of larceny, although absent at the time the larceny of the hog was committed.” Appellant urges as error that the charge contemplates guilt as principal in a party whose absence from the commission of the felony could, at most, make him guilty as an accessory, and that in this case he could not have been held as accessory, because he was indicted as a Xirincipal.

It is well settled in jurisprudence that a party, not present, aiding or abetting in the commission of a felony, or not near' enough to give assistance, if the occasion should arise, is not a principal, but an accessory.

And appellant quotes numerous authorities to show that the rule applies with equal force to larceny, which is also a felony under our statutes.

On inspection, we note that all these authorities have reference to cases of larceny under statutes which do not discriminate between grand and petty larceny.

The opinion in the case of State vs. Levy, 5 An. 66, was rendered in 1850, at a time when our statutes had not yet discriminated between the two degrees of larceny.

And on similar legislation were predicated the cases quoted from Russell, p. 30) Archbold, p. 66; Waterman, p. 8, Sec. 6.

But under statutes which recognize two different degrees of larceny, we understand that jurisprudence has established thg rule that there can be no accessory to the crime of petty larceny, even when it is defined to be felony, as is the case with our present statute on the subject. Sec. 32, Act No. 124 of 1874.

We therefore hold, that in a case of petty larceny, the party who is not shown to have been present, or constructively present, at the commission of the theft, but would under the circumstances be guilty as an accessory to grand larceny, is guilty as principal in petty larceny. Bishop on Criminal Law, Sec. 680, and cases therein noted.

Understanding that the charge given in this case substantially embodies this rule, and is a practical application of this principle, we maintain it as correct.

Judgment affirmed.


text:
    No. 8676.
    The State of Louisiana vs. Miles Diskin.
    A new trial will not "be granted on the ground of newly discovered evidence, where such evidence is designed merely to impeach the credibility of witnesses for the State, wha testified at the trial, or, if it consists of rebutting evidence, still the new trial will not be allowed unless such evidence is sufficient to change the result, and could not by due diligence have been obtained at the trial.
    Where a juror when examined on his voir dire declares that he has formed no opinion touching the guilt of the accused, that he knows nothing of the case, his competency thus shown „ will not be affected by proof of an inconsiderate remark, uttered a short time before bo was called as a juror, and which, without explanation, might seem to denote a bias against the accused.
    Where a party is indicted for murder, and convicted of manslaughter, the indictment, if filed within the year the killing took place, interrupts prescription for the latter offense.
    APPEAL from the Criminal District Court for the Parish of Orleans. Lwsenberg, J.

      J. G. JEgan, Attorney General, for the State, Appellee :
    1. There is no law requiring the prosecution to conduct a case to suit the convenience of the defense.
    2. A new trial will not he granted to enable a party to impeach a witness who testified on a former trial. State vs. John Fahey, 35 An. 1; 5 Maas. 261; 7 Tex. 69; 2 Garter, 435 ; 14 Mo. 348; 8 Gratt. 637; Graham and Waterman on New Trials, vol. 1, p. 1074-1077.
    3. The following is not an expression of opinion as to the guilt or innocence of the accused ; . and therefore the juror using it is not thereby disqualified from serving: “that if he should get on the jury in the murder case fixed for trial on that day, he would get a ticket to see him hanged.”
    4. Proof of the corpus delicti isa matter entirely within the province of the jury to decide upon. And this Court will not review the evidence made part of this bill of exceptions ? particularly when the Judge a quo asserts that it, the co'pus delicti, was proven.

      5. Sec. 986, R. S., does not pTovidetbat manslaughter shall not be punished after the lapse of one year after the offense has been made known to a public officer having power to direct prosecution. It says: “No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, robbery, forgery ami oontorfeibing excepted, unles3 the indictment or presentment for the same be found or exhibited witliiu one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution.”

      W. L. JEvans for Defendant and Appellant:
    1. Where testimony is offered at the trial which could not have been anticipated (and the ' defendant is taken by surprise) and consequently unable to explain or rebut it, a new trial will be granted if the court is satisfied that there has been no lack of diligence. 3 Grab, and Water. on New Trials, 2d ed., 932, 930, 960; Riley vs. State, 9 Humph. 646; Cutler vs. Rice, 14 Pick. 494.
    2. A new trial will be granted on evidence discovered subsequent to the trial contradicting the testimony on whieh the verdict was rendered where the facts on which the witnesses founded themselves are falsified hy affidavits produced. 1 Grah. and Water, on New Trials. 2d ed., 233.
    3. Where a juror, on his examination, on his voir dire denies having any bias or prejudice whatever, one way or the other, and thereby induces defendant to accept him. as a juror, and after the trial it is discovered that he was prejudiced and biased and had expressed it, a new trial ought to be granted.
    4. Where there is a failure of proof upon a material point (the corpus delicti) a new trial ought to be granted. Where it appears from the record that there was no proof upon a material - point it presents a question of law which this Court can pass upon. Navis vs. Spencer, 24 N. Y. Ct. Ap., 390; McCann vs. The People, 6 Park. C. C. 637.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, convicted of manslaughter, and sentenced to imprisonment in the penitentiary for fifteen years, and has appealed.

He complains that there was error in overruling his motion for a new trial and motion in arrest of judgment.

I.

The motion for a new trial contained the following grounds :

1. That upon the trial of this cause two witnesses were called hy the State, who testified, in substance, that the accused stated to them on the night the homicide was committed, that he would kill John Driscoll (the deceased) as soon as he should see him. That the accused and his counsel were taken by surprise by this testimony; that it was not anticipated hy them, and could not be, and they had no opportunity to contradict or rebut it. That due diligence had been used to ascertain the names of the witnesses for the State before the trial; and upon an examination of the clerk’s office the day previous to the trial, the names of said witnesses were not found on the list of witnesses.

The affidavit of a person who declared that she was present at the time and place when and where the accused.was Said to have made said statement to the two witnesses, and who denied that such statement was made, was annexed to tlie motion; and the affidavits of several others, impeaching the veracity of the said two State witnesses, were likewise annexed and made part of the motion. '

It appears from this statement that the said testimony referred to was designed to impeach and discredit that of certain witnesses given on the trial of the cause.

It is well settled that newly discovered evidence of the character mentioned, that is merely designed to impeach the credibility of witnesses who had testified at the trial, affords no sufficient ground for a new trial. Graham and Waterman on New Trials, vol. 1, pp. 1074, 1077; State vs. Fahey, 35 An. 1, and authorities there cited.

If, however, we should consider the testimony of Mary Coggins, the witness who purports to have been present when the damaging statement w;as made by the accused, as not coming within the category, of impeaching, but of rebutting testimony, then to give it the effect claimed for it, we must consider, first, whether it is sufficient to overthrow or outweigh the opposing testimony and to change the result of the trial; and secondly, whether by due diligence this testimony could not have been had at the trial.

The circumstance alone that it is the testimony of one witness, simply in denial of a fact sworn to by two witnesses, shows that it does not meet the first requirement; that is, it cannot be held sufficient to outweigh that of two witnesses and change the result of the trial.

As to whether there was proper diligence to produce this testimony on a previous trial, is a question which lies largely within the discretion of the Judge who presided at the trial. He has spoken on this point, as we find from the record.

In giving his reasons for refusing the new trial, he used the following language:

“ As’a matter of fact, the names of both these witnesses were called out aloud by the sheriff in open court on the morning of this trial, in the presence and hearing of the accused and of his counsel. He knew they were present as witnesses for the State. He does not pretend to deny that they were acquaintances of his—visiting acquaintances—and he should have been prepared then to have met anything they might say against him. Mary Coggins could have been sent for then, or at any time during the trial, to have stated what she knew.”

Under these circumstances, we cannot say that the Judge’s discretion was arbitrarily exercised in this instance, or that his conclusion was erroneous.

There is no law in this State requiring the names of witnesses for the prosecution to be placed in the indictment or posted in advance of the trial, and we can well perceive that any such practice or requirement would, in many instances, but serve to defeat the ends of justice.

We have been pointed to authorities by the defendant’s counsel, where new trials have been granted in cases of surprise, and where the testimony was unanticipated, but in those authorities the conditions as to the sufficiency of the new evidence to change the result and the question of diligence, is fully recognized and given controlling effect.

For these reasons we cannot give the force contended for to this ground of the motion.

2. The next ground relates to the alleged incompetency of one of the jurors who tried the case. Before the case was called for trial, this juror made an inconsiderate remark, to the effect, that if he should get on the jury in the case fixed for trial on that day and the accused should be convicted, he would get a ticket to see him hanged.”

Examined on his voir dire this juror said, “he had no knowledge of the case,” “ had neither formed nor expressed an opinion as to the guilt or innocence,” “ that he was not biased or prejudiced,” and “ no one had spoken to him about the case.” These answers, given under the sanction of an oath, are certainly a better and safer test bf the competency of the juror than the thoughtless remark referred to; and it is not seriously contended such remark disqualified him. His idle talk constituted an impropriety, nothing more.

3. The next question, as presented and argued by the defendant’s counsel, is the abstract one whether a party can be convicted where there is no proof of the corpus delicti. We do not, however, see the question in that light, or as he puts it. The record plainly shows that there was evidence introduced at the trial on this very important point. And the true question arising from the record is not whether, in the absence of all proof of the corpus delicti, the accused can be convicted, but rather, whether the proof administered was sufficient to establish this indispensable fact. This question, under our limited jurisdiction, we must decline to answer, since it would require us to review the verdict upon a pure question of fact, which we have no power to do.

The authorities cited by the counsel on this subject are not in point.

II.

The motion in arrest of judgment presents the question only of the alleged prescription of the offense for which the accused was convicted. Quoting the exact language of the motion, the matter or point is thus, stated:

“ The record shows that the offense, which was only manslaughter, from its inception, was committed on the 28th of April, 1881, more than one year before the verdict of manslaughter rendered herein, and that no indictment or presentment for that offense has ever been found against the defendant, and that Section 986, R. S., provides that no person shall be punished for the offense of manslaughter unless the indictment or presentment for the same be found within one year next after the offense shall have been made known to a public officer having power to direct the prosecution.”

The true meaning of Section 986, R. S., referred to is, that if the State remains silent and inactive, and fails or refuses to prosecute for one year those who had committed certain offenses, (among which is manslaughter) which are known to an officer charged with their prosecution and the parties have not absconded, such silence and inaction for the time stated operate as a bar to the prosecution of such offenses. If, however, the State does move against the offender within the prescribed time, by presenting an indictment on which a jury is authorized to return a verdict for the particular offense for which the accused has been sentenced, it cannot reasonably be charged that the State has been guilty of the inaction requisite to prescribe against the offense of which the party has been thus convicted. Thus, an indictment for murder charges the highest grade of crime belonging to a certain class of offenses-embraced in the generic term homicide under our law, the jury, under such an indictment, is authorized to return a verdict of manslaughter. Therefore, an indictment for murder constitutes in legal intendment a prosecution for manslaughter. The very fact of an indictment for murder being found, where a verdict for manslaughter is rendered, instead of betraying inaction or indifference on the part of the State towards the prosecution of the offender, upon which the theory of prescription is based, shows rather an intense appreciation of the crime and an earnestness and zeal in its prosecution.

It is hard sometimes to draw the line between murder and manslaughter under the evidence ija particular cases. The legal distinction may seem very plain—one a killing with malice, and the other a killing without malice—but when reduced to practice it often becomes a problem of difficult solution. This fact is illustrated by the history of this very case now under review. Under this indictment for murder the accused was twice tried. On the first trial he was convicted of murder, and sentenced to imprisonment in the penitentiary for life. On appeal this sentence was reversed on the ground of the admission of illegal evidence, and the cause remanded; and on the second trial a verdict of manslaughter was returned, which we are now considering.

It is consonant, therefore, both with law and reason, that an indictment for the highest grade of an offense of an3' distinct class interrupts prescription if seasonably filed, for each lesser grade of the same class for which, under the terms of the law, a jury, may in its discretion, convict. Hence, it follows that an indictment for murder interrupts prescription for manslaughter if hied within a year after the commission of the offense.

By reference to the record we find that the indictment in the instant case was returned on the 17th of June, 1881. The offense was charged to have been committed on the 28th of April, 1881, on which day it is not denied the killing took place. The indictment, therefore, having been found within a year from the commission of the offense, the plea of prescription cannot prevail, and the motion in arrest based solely on such plea must fail.

If we are to understand the further proposition of the defendant’s counsel to be, that though the indictment be found within the year, the punishment cannot be inflicted after its expiration; that is, that it is necessary that a party should be indicted, tried and convicted, all within a year, to render a conviction of manslaughter legal, we need only say that such proposition is entirely without force and unwarranted in law..

, We have examined the proceedings in this case with exhaustive care and scrutiny, and find nothing that affords the accused any ground of relief.

The sentence appealed from is, therefore, affirmed.


text:
    No. 8465.
    Samuel Browne vs. The City of New Orleans.
    Tit© holder of past due bonds and coupons of interest for several years, issued under an Act requiring the City annually to levy and collect a tax for the interest of each current year and a certain proportion of the principal, cannot, in the same action, obtain a judgment for the amount of his demand, and an older to compel the City officers to levy and collect a tax sufficient to pay the same. His monied judgment must be registered as required by Act 5 of 1870, as a condition precedent to other proceedings for satisfaction thereof.
    A PPEAL from the Civil District iX JSightor, J. Court for the Parish of Orleans.

      Chas. F. Claiborne for Plaintiff and Appellee :
    A law which makes it the duty of City Administrators to appropriate a sum sufficient to pay bonds, makes it their duty to levy that sum by taxation if they are without other means. 34 An. 477.
    A money judgment may be obtained, and an order to levy a tax to pay it granted in the same proceeding.
    Louisiana State Courts abhor the subtle distinctions of common law practice, and especially the difference between courts of law and of equity.
    Contract creditors are entitled to the rate of taxation existing at the date of their contract. 34 An. 482.

      C. F. Rítele, City Attorney, and Wynne Rogers for Defendant and Appellant:

      All matters pertaining to the payment of judgments can only be urged in execution after judgment decreeing amount due is final.
    Registry of judgments against tlie City of New Orleans, according to the provisions of the second section of Act No. 5, Session Acta 1870, 35. S , is an essential prerequisite to proceedings in execution. State ex reí. Monis Ranger vs. City, 32 An. p. 493; Louisiana vs/ Now Orleans, 102 if. S , p. 203. #
   Tlie opinion of the Court was delivered by

Fenner, J.

Plaintiff, as holder of past, due bonds and coupons issued under Act 100 of 1871 and Act 49 of 1869,brought this direct action against the City, demanding judgment for the amount of his debt, and, at the same time, commanding- the Mayor and Administrators to recognize ills claim, to place it on the budget, and to levy and collect a sufficient tax to pay the same.

From a judgment granting- tlie entire relief asked, the City appeals, and contends here, that the portion of the judgment ordering the budgeting of the judgment and tlie levying of a tax to pay it, should be annulled and reversed.

The contention of plaintiff, that the judgment merely awards specific performance of his contract, cannot be sustained. The laws re_=. ferred to and embodying- that contract did authorize and require an annual appropriation and taxation sufficient to meet tlie interest for tlie current year and a certain proportion of the principal of the bonds.. But they did not impose any specific duty on the City to levy and collect in one year a sum sufficient to pay the principal and accumulated interest for several years, of the bonds. The plaintiff has let go by the periods at which the specific duties imposed by the contract might have been performed, and specific performance is no longer possible.

Plaintiff’s rights now are simply to sue and recover judgment for the amount due him, and to enforce the satisfaction of that judgment according to law.

Whatever means of enforcement he may be entitled to, it is now settled that, before resorting- to any, his judgment must .first lie registered as required by Act No. 5 of 1870. State ex rel. Ranger vs. New Orleans, 32 An. 493; Louisiana vs. New Orleans, 102 U. S. 203.

We express no opinion as to what may be iris right to require satisfaction by taxation ultimately and after compliance witli legal requirements. It was error in the judgment appealed from to grant such relief at this time.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by striking- therefrom all that portion which condemns the defendants to place tlie plaintiff’s claim on the budget, or to assess, levy and collect any tax for the satisfaction of .the same ; and that, in all other respects, the judgment be affirmed, plaintiff and appellee to pay costs of this appeal.