text:
    No. 1122.
    Succession of Sarah E. Hayes. On Opposition of O. Hayes et al.
    The husband in this case, having by his wife’s last will the usufruct of her share of the Community, and, whilst acting as her Executor, having sold for Confederate money ootton belonging to the Community, is held to have sold it as usufructuary and not as Executor, and to be liable for its value.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.

      Lewis & Bro. for Opponents and Appellants:
    The usufruct of cotton is an imperfect or quasi usufruct, and transfers the ownership to the usufructuary. The latter may “ consume, sell or dispose of it, as he thinks proper,” subject only to the charge of returning the same quantity, quality and value to the owner, or its estimated price, at the termination of the usufruct.
    One having the usufruct of the estate of another, by last will and testament, who exercises his usufructuary right by selling or disposing of the property “as he thinks proper;” ■who, in his petitions and final account, claims the rights and privileges of an usufructuary, cannot afterwards plead that he is responsible to the heirs as administrator; claiming and exercising the rights of an usufructuary, he must also be charged with the burdens incidental to the right.

      John E. King for the Executor, Appellee:

      1 Under the exceptional circumstances in which fiduciaries were placed by the existence of war, when localities were possessed and ravaged in turn by contending armies, and when under these difficult circumstances they acted with discretion and honesty, ,they cannot he held responsible in law for losses which were inevitable as a result of the war.” 31 An. 169.
    C. O. 567. It is the duty of the usufructuary to keep the things of which he has the usufruct, and to take the same care of them as a prudent owner does of what belongs to him.,
    <lHe is accordingly answerable for such losses as proceed from his fraud, default or neglect.”

      H. L. Garland on the same side.
   The opinion of the Court was delivered by

Poché, J.

At her death, on the 19th of October, 1862, Sarah E. Hayes, wife of Jesse B. Clark, who left no issue, but several legal heirs, left a will, under which she gave to her husband the usufruct of her share in the community property.

■ This litigation grows out of oppositions filed by the heirs to a final account and settlement of the community, filed by Clark in January, 1866, as dative testamentary executor. Although numerous items of the account were opposed, the issue on this appeal is confined to the correctness of the judgment of the lower court in dismissing oppositions to the following items :

1st. A credit of $1055 55 claimed by the executor for cotton belonging to the succession, sold by him for Confederate notes, which were converted into Confederate bonds, now valueless.

2d. A credit of $2000, claimed by him on account of his separate property and funds brought into the community, which, opponents contend, should be reduced by $254.

1st. The proper disposition of the opposition to the item of credit of $1055 55 requires an inquiry into the nature of Clark’s possession of the succession cotton sold by him for Confederate money. If he held the cotton, as he contends, as testamentary exeóutor, then under the great danger to which the cotton was exposed, either to confiscation or to destruction by fire, during the late civil war, during which the locality where the cotton was situated, was surrounded and overrun by contending forces, or by organized bands of robbers, the disposition which Clark made of the cotton is justifiable in law, which exonerates him from responsibility in the premises.

If, on the other hand, he held the cotton as testamentary usufructuary, as opponents contend,, his possession was under the imperfect usufruct, transferring to him the ownership of the cotton, with full power to dispose of it as he thought proper, entailing the obligation of returning the same, or the estimated value thereof, to the heirs, at the expiration of the usufruct. C. C. Art. 536-549.

Considering that, in his petition for the probate of his wife’s will, Clark specially alleged that the usufruct of the wife’s community property was bequeathed to him, and that the probating of the will was predicated upon and made with special reference to his petition ; considering that, in his tableau of distribution, he claimed credit for two items charged on the inventory, on the ground that these items were for portions of crops ungathered in October, 1862, when the usufruct began, and which he claimed as usufructuary, and that the accountant must be bound by his judicial admissions, we conclude that he took and held the twenty-two bales of cotton which he sold for Confederate money, in his right of usufructuary under the will, and that his responsibility must be tested under the provisions of our Code regulating the right of usufruct. This conclusion is further justified and absolutely confirmed by the fact, shown in the record, that the investment by Clark of the funds realized from his sale of the cotton, was not made in the name of the succession, but in his own name, and confusedly with other funds of his. We are clear that his administration, as executed, has been confined by law and by his own acts to the separate property of his wife, as shown by the inventory, .and not subject to his usufruct. All these circumstances clearly differentiate this case from that of the succession of Frazier, 33 An.

Had he kept, as some of his neighbors did, his cotton to the end of the war, and sold it at forty-five cents a pound, in legal currency, and realized from the transaction some five thousand dollars in such currency, he could not have been held accountable for more than the estimated value of the cotton, as shown by the inventory. In that case, he would have been entitled to the profits, in this, he must sustain the losses:

We are clear that the usufruct of cotton, the use of which would be of no value to the usufructuary, if he did not change the substance of it, by manufacturing or selling it, is of the imperfect kind, C. O. Art. 534, and that Clark exercised his legal right in selling it, and has thus contracted the obligation of returning the same or the value thereof. Hence, in our opinion, the District Judge erred in refusing to amend the account in this particular.

2d. We are satisfied by the evidence that, among the property brought into the community by Clark, were some horses and cows, which he himself values at $254, for which animals he is not entitled to credit against the community. We, therefore, hold that the value of these animals must be deducted from the credit of $2000, allowed him by the District Judge, on account of his separate property and funds.

Appellants call our attention to the insufficiency in amount of the bond of the usufructuary, as fixed by the lower court. It must be increased from one thousand dollars to two thousand five hundred dollars.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by striking out the credit of $1055 55, allowed for the cotton sold by accountant for Confederate money, by reducing from $2000 to $1746 the credit allowed to accountant, on account of his separate property or funds, by increasing the usufructuary’s bond from one thousand dollars to two thousand five hundred dollars; and that, as thus amended, said judgment be affirmed'; costs of appeal to be paid by appellee.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 1119.
    The State of Louisiana vs. George Moultrie.
    Under tlie circumstances of this case, justice required that a continuance and reasonable time to procure the attendance of his witnesses, should be granted the accused. Xhe refusal of the same by the Court a qua, entitles him to a new trial.
    An indictment charging larceny in one count, and receiving stolen goods in another, is valid; but, under a single count charging larceny, a conviction of receiving stolen goods, cannot be maintained.
    APPEAL from the Twenty-ñfth Judicial District Court, parish of Vermilion. Clegg, J.

      Joseph A. Chargois, District Attorney, for the State, Appellee.

      F. B. King for Defendant and Appellant:
    IFirst — The affidavit of an accused for a continuance cannot be contradicted; it must be taken as true. 30 A. 296.
    Second — On an indictment for petty larceny, a verdict for having received stolen goods knowing them tobe such, is not responsive, and must be set aside, and the case remanded.
    Third — Where counsel is assigned by the Court to defend an accused person, a sufficient time should be allowed in which to prepare for the defense, especially where special cause is shown for a longer delay.
   The opinion of the Court was delivered by

Levy, J.

An information was filed against the defendant, charging him with larceny, on which he was tried by a jury and convicted of the offense of receiving stolen goods, knowing them to be stolen. He was sentenced to imprisonment in the State Penitentiary, at hard labor, for six months, and from the judgment thus sentencing him he has appealed.

The information was filed on the 16th of June, 1881; the warrant for arrest was issued on the same day, and on the 22d of June, returned as executed and filed. On the 23d of June the accused was arraigned and pleaded not guilty, and the case was fixed for trial on the next day, the 24th. On arraignment accused was asked by the court if he desired counsel to be appointed to defend him, and he replied that he would himself employ counsel. On the day of the trial (the next day), prisoner being without counsel, the court assigned an attorney to defend him. Immediately after such assignment of counsel, the accused moved the court for a continuance; this motion was supported by an affidavit setting forth that he had not had an opportunity to procure the attendance of witnesses necessary for his defense; “ that two of his witnesses (named) reside at a distance exceeding forty miles from the court house, and defendant having been arraigned on the 23d, and the cause assigned for trial on the succeeding day, it was impossible -to cite said witnesses in time to secure their presence on the day so fixed for trial.” The affidavit set forth the materiality of the testimony of the witnesses and what he expected to prove by them; 'that the application was not made for delay and that the affiant expected to procure the attendance of said witnesses at the next term of the court. The continuance was denied and the trial ordered to be immediately proceeded with, for the reasons given by the judge a quo,'viz; “ That on the day of his arraignment the accused was told by the court that he must give the names of his witnesses, whose presence he might desire, to the sheriff or clerk of court, and process would issue to enforce their attendance, which he declined to do; at the time of his arraignment accused declined the assistance of counsel offered him by the court and declared his ability to procure legal assistance and refused that tendered him by the court; that it appeared to the court, from tbe facts and circumstances before it, that due diligence had not been used by the accused and that he desired and intended from the moment of his arrest to avoid a trial at the present term;” that “it was further proven by the sheriff, that if process had been put in his hands on the day the cause was fixed for trial, he (the sheriff) could have enforced the attendance, if he could be found at his usual domicil, of the witness Alfred Moultrie, about the hour of two o’clock on the day of trial.” To this ruling of the court, defendant filed a bill of exceptions.

The accused also filed a motion in arrest of judgment, on the ground that “ the verdict of the jury is not responsive to the charge as set forth in the bill of information in the case;” which motion was overruled, the court holding, that “ the crime of larceny included that of receiving stolen goods, knowing them to be stolen, and that it was competent for the jury under a charge of larceny to find the accused guilty of the latter offence.”

While the best interests of well ordered government and the safety of society are promoted by and require the prompt and speedy execution of justice and prosecution of offenders against the criminal laws, at the same time, justice and the rights of citizens require that all persons charged with the violation of law shall have the benefit of the advice and assistance of counsel, the machinery of the courts and reason- - able time within which they may procure the attendance of witnesses and prepare themselves for their defence.

We do not think, that, in this case, sufficient time for these purposes was granted, and if the precedent were established, we much fear that it would operate harshly and unjustly and, instead of serving as a protection to society and means of punishing crime, might operate to cause injustice and lead to hasty administration of the law. We can well appreciate the praiseworthy earnestness of our brother of the District Court in his desire to administer faithfully and promptly the law of which he is a minister; and without in any manner reflecting upon Ms judgment and discretion, we are'constrained to differ with him, and think he erred in not granting either a continuance or postponement of the trial. For the purposes of the trial of the motion, the affidavit was to be considered as true and the facts therein set forth in connection with the circumstances detailed, in our opinion, entitled the accused to the continuance sought. We do not see that the State could thereby have been injured, while the accused might suffer great injury by being forced to an immediate trial in the absence of witnesses in his behalf, to secure whose attendance sufficient time was not afforded. 30 An. 295; 26 An. 422.

The reasons given by the District Judge for overruling the motion in arrest of judgment, are not satisfactory. Under the authority of the text writers, and many English and American decisions, there is no doubt, that an indictment may contain distinct counts charging larceny in one and receiving stolen goods in another, and a conviction thereunder of either offence would be good, but we do not think that, under a single count charging only larceny, a conviction of receiving stolen goods can be maintained. The allegations as to larceny do not cover those necessary to constitute receiving stolen goods, and although the offences are to some extent kindred or of the same class, yet, they are as to punishment and to the essential ingredients constituting the crime, distinct. Bishop on Crim. Pro., Waterman’s Digest and authorities cited by these authors.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded to the District Court of the parish of Vermilion, to be proceeded with, in a new trial, according to law, at the costs of the appellee.


author: Bermudez, C. J.

text:
    No. 1121.
    John E. King vs. Elbert Gantt et al.
    . Defendant, having in liis original answer admitted the adjudication to him ata tax sale, oí Plaintiff's property, cannot be permitted to file an amended answer, setting forth error, possession in himself and oíh¿r facts, which alter the substance of the original answer.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.

      Henry L. Garland for Plaintiff and Appellee.

      Lewis & Bro. and F. F. Perrodin for Defendant and Appellant:
    An action, in which plaintiff claims to be the owner of real estate, and aslrs ‘for the annulment of its sale for taxes on the ground that he had offered to redeem by paying the purchase price within the legal delay, and that the defendant be enjoined from perfecting that title, or doing any act to deprive him of the property, is a petitory action in its nature, C. P. 5; IP. 242; 9L 147.

      "Wliether it be technically a petitory action or not, it involves title to real estate, and could not be maintained by plaintiff except as owner, which he was bound to allege and show* The law gives the right of redemption only to owners or mortgagees. Plaintiff was bound to allege every fact material to his case. 13 L. 52; Sec. 57, Act 96, 1877; JR. S. 3299.
    Tax sales are prima facie valid sales. Const. 1868, Art. 118; Const. 1879, Art. 210.
    Defendant should plead all the titles under which he claims, and which the judgment, as res judicata, will estop him from subsequently setting up. 14 An. 582, Shaffer vs. Scuddy, 11 An. 111.
    A party can urge as an exception whatever he can enforce as an action. C. 3?. 20; C. C. 2047; 12 R. 95 and 472.
    Amendments should be allowed when they cause no injury and prevent a multiplicity of suits. 5 An. 674; 10 An. 599; 9 R. 78; 1 An. 254.
    Amendments should be allowed where justice will be promoted. 3 R. 123; 14 An. 355; H. D. 1182, Ro 9 ; 27 An. 316.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff seeks the annulment of an adjudication made to defendant, of Ms property, at a tax sale. He alleges that, within the two years following the adjudication and allowed by law for the cancellation of such adjudication, he has tendered to the defendant the amount paid by him as adjudicatee, with interest and damages, but that the latter has refused to receive the same. He coupled his prayer or annulment with an injunction, to prevent the defendant from registering his adjudication and from procuring a title, or deed, from the creditor, to the adjudicated property.

The defendant pleads the general issue, but admits the adjudication, with the averment, however, that the property in question was placed on the assessment list in error, as it did not belong to plaintiff, but to him, as per a sheriff’s sale to him. He further avers and prays that, in case the plea is not maintained, whatever rights he may have for the recovery of the property be reserved to him. Some five months afterwards, the defendant offered to amend this answer, by setting forth allegations of error, possession, surprise and readiness to allow plaintiff to redeem his own property, but unwillingness to surrender his own to him.

The lower court refused to receive the amending answer and, on the trial, consistently, to permit the introduction of evidence in support of it and in disproof of plaintiff’s testimony. To such refusal bills were reserved.

On the merits, the court gave judgment, annuling the tax sale and making in favor of the defendant the reserve of rights asked by Mm. From this judgment the defendant has appealed.

The theory upon which this suit was brought seems to be, that the plaintiff was, and has never ceased to be, the real and true owner of the property offered at the tax sale and adjudicated to the defendant; that, in legal contemplation, the defendant, having illegally refused to accept the money tendered, must be dealt with, upon payment of it to him, as though he had seasonably received it, and that things be declared to be in the condition in which they should have been, and in which they constructively and relatively are.

The question is not, therefore, whether the plaintiff is to be declared the owner of the property, but whether, being such owner, he had a right to compel thé defendant to receive the money; in other words, whether he was a debtor and could force his creditor to receive payment as a condition precedent for the annulment of the adjudication.

The defendant’s position is, that he was justified in not accepting the tender, for the double reason that the property never belonged to the plaintiff, who, therefore, was stripped of no right to it by the adjudication, and that the property was previously, and still is, exclusively his own; in other words,, he claims ownership otherwise than from the adjudication.

The plaintiff does not ask to be recognized by the Court as the owner of the property. The prayer of his petition does not characterize .his action as a petitory one, as one in which he revindicates title to real estate, contradictorily with another, setting up any pretension of ownership or other to it. He assumes that he is the owner, and claims that, by reason of the position in which the defendant has placed himself, by becoming the adjudicatee for taxes of property assessed in his (plaintiff’s) name, and adjudicated as belonging to him, he has no title to prove, as against the defendant, who has admitted title in him, as holding under and through him. The plaintiff only asks that, which the acceptance of the money would have brought about, i. e., the nullity of the adjudication of the property to the defendant.

If the suit partake of the nature of a .real one, which it apparently does, it can only be viewed as a quasi possessory action.

Constructively it is-such — for the plaintiff seeks to be maintained in the possession and enjoyment of the property, and to that end, for the purpose of preventing apprehended and otherwise unavoidable disturbance, he has obtained the conservatory process of injunction. In such a case, it is clear that, in the very terms of the provisions of law regulating such actions, the defendant cannot set up a defense which could be considered as a petitory action, until after judgment in the possessory action, and satisfaction of the judgment, if adverse to him. C. P. 55.

If the action were petitory, the defendant could reconventionally set up title in himself and provoke a judgment recognizing it in him; but as it is not such, and is one bearing great affinity to the possessory action, the defendant cannot raise the issue which he has attempted to form.

Apart from these considerations, as the defendant has admitted the adjudication at the tax sale, and did not, in the original answer, plead error, but plainly and solely title in hirhself, without any qualification, he is estopped from contesting, or disputing ownership in plaintiff, from whom he holds as adjudieatee, and who is his author, and he cannot, therefore, be permitted to alter the substance of that answer, by injecting into it important means of resistance not seasonably and regularly set forth. It is manifest that the original special defense -was diffidently ventured by the defendant, who cautiously and wisely prayed, in case the plea were not maintained, that his rights under the same be reserved for assertion in a different proceeding.

The lower court properly declined to-permit the amendment and to receive evidence under it or the original answer.

On the merits, the testimony shows the tender, and that defendant’s sole objection to it was as to its sufficiency in amount, which we deem is established, and is not now contested.

The plaintiff has prayed for no amendment.

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


author: Todd, J.

text:
    Mo. 118½.
    The State of Louisiana vs. Henry J. Brown.
    The certificate of the Clerk of Court from which a case is transferred, in a change of venue, attached to the copy of the original proceedings, such as the indictment, arraignment and plea, etc., not being stamped with the seal of the Court, is clearly inadmissible in evidence on. the trial of the accused in the Court to which the case has been transferred.
    The introduction on the trial of legal evidence of such proceedings had before the change of venue, being indispensable, the trial, verdict and judgment are illegal and must be set aside, and a new trial granted to the accused.
    APPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J.

      Fdwin Q. Hunter, District Attorney, for the State, Appellee.

      M. Ryan and W. F. Blackman for the Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder in February, 1880, in the parish of Bapides.

On the 5th of May, 1881, he was tried on this indictment before the District Oourt of the parish of Grant. He was convicted of manslaughter and sentenced to ten years imprisonment in the penitentiary, and from this sentence has appealed.

He assigns as errors in the proceedings, upon which he relies for a reversal oí the sentence, certain alleged irregularities and improper rulings of the judge who presided at the trial, set forth in numerous bills of exception found in the record, but only one of which we find it necessary to consider for the determination of this case.

As stated, the defendant was indicted in the parish of Bapides but tried in the parish of Grant. All that the record shows of the proceedings in the latter parish, are those immediately relating to the trial, conviction and sentence, and the appeal therefrom. To authorize a conviction and sentence, the record must show not only the proceedings mentioned, but also an indictment, the return of the same into court by the grand jury, the arraignment of the prisoner and his plea, and, in short, the observance of all the prescribed formalities that precede trial and sentence. Without these, of course, a trial and conviction would be grossly irregular, null and void.

The case purports to have been transferred to the parish of Grant from the parish of Bapides, where the accused was indicted and where the offence was charged to have been committed, by a change of venue, granted on the application of the accused.

The law, in such case, requires that the clerk of the court where the prosecution was instituted, shall deliver to the clerk of the parish to which the case is transferred, the indictment and other original documents pertaining to the case, and a copy of all orders and proceedings rendered and taken in the court of the first instance. The duty seems to have been performed, so far as relates to the sending or transferring of the original documents to the parish of Grant, all of which appear in the transcript.

It, however, became necessary on the trial of the cause, that the proceedings taken in the parish of Bapides, relating to the prosecution, should be shown, such, for instance, as the return of the indictment into court, the arraignment and plea, and the order itself, by authority of which the venue had been granted and the trial was being had in the parish of Grant.

A copy of the minutes of the Court of Bapides parish, or what purported to be such copy, embracing the essential formalities mentioned, was offered during the progress of the trial, and objections were made by the defendant’s counsel to its admission, the nature of which objections, and the ruling of the judge thereon, will be found fully set forth in the following bill of exceptions, which we transcribe in full:

“ Be it known and remembered, that on the trial of this cause the District Attorney, representing the State, offered in evidence what purported to be a certified copy of the minutes of the court from Bapides parish and all the papers and documents filed in the case in the parish of Bapides, to which defendant objected, on the ground that there was no authentic copy oí said proceedings and no legal certificate of the ■clerk of the court of Bapides parish, as the certificate was not stamped with the seal of the District Court of Bapides parish, so as to make the same official, which objection was overruled by the judge for the following reasons, to wit:
“ Because the accused cannot be heard to dispute or deny the change ■of venue, as he is the one that asked and obtained it; he stands here as an appellant, and because all the papers objected to were, as the law •directs, the originals, except the copy of the minutes, which the accused ■cannot be heard to deny. To which ruling accused objected,” etc.

We have no hesitation whatever in saying that the judge a quo erred in admitting this alleged copy of the minutes. In the most trifling matters relating to civil proceedings, in all processes from a court of record, such as citations, subpoenas, etc., a seal is essential to give them validity and authenticity and to authorize an obedience to such processes on the part of those against whom they are directed, and equally essential is it in relation to all acts and proceedings of any one of such courts certified to and requiring recognition by another.

It is elementary and a provision of positive law — a provision based upon immemorial usage — that a public seal, a seal of State and a seal of court, is essential, the one to authenticate the acts of a government, the ■other the acts of a court. Revised Statutes, Sec. 3471, 3474. In the language of Judge Bullard, the organ of the court, in case of Campbell, Richie & Co. vs. Karr, 7 La. 70: The court has a seal, and the signature is incomplete without it. ‘It is that which authenticates it, and makes it evidence in other courts’” See, also, C. P. 774; 10 La. 483; 12 La. 70.

If, in a civil proceeding, the authentication by the seal of the court is so absolutely demanded, how can we conclude that it is less essential or not essential in a criminal proceeding, where the life or liberty of a human being is at stake? Let, such was the conclusion of the judge ■a quo for reasons assigned that are utterly without force or foundation. The change of venue had been ordered by another judge, and the proceedings, preliminary and pre-requisite, to a legal trial of the accused, purported to have taken place before that judge; the judge presiding at the trial of the accused could not know this fact or recognize such proceedings, or even be assured of the jurisdiction of his court over the subject-matter of the prosecution, unless the evidence of the same was presented to him duly and solemnly authenticated by the seal of that court, where such proceedings were had, and from which his authority in the premises emanated.

Eliminating this evidence, thus admitted without legal authentication, from the record, the proceedings, as they come to us, show a trial and conviction before a court without jurisdiction and without a finding of a grand jury, without arraignment and without plea. We are, therefore, constrained to set aside the verdict and remand the case; and while forced to this conclusion, we cannpt too loudly condemn the official carelessness that has produced, it may be, this delay of justice.

It is, thereforé, ordered, adjudged and decreed that'the judgment and sentence appealed from be annulled, avoided and reversed, and that the case be remanded to be proceeded with according to law and the views herein expressed.


author: Fenner, J.

text:
    No. 1120.
    The State of Louisiana vs. Zeolin Touchet.
    The accused, under the charge of larceny, having waived the trial by jury, and, after being tried by the Court and found guilty, having obtained a new trial, has the right then to change his former election and claim to be tried by the jury.
    APPEAL from the Twenty-ñfth Judicial District Court, parish of Vermilion. Clegg, J.

      J. A. Chargois, District Attorney, for the State, Appellee.

      F. B. King for Defendant and Appellant:
    First — The right of trial by jury is one accorded by Art. 7 of the Constitution of 1879, and cannot be denied or abridged in any manner, except as therein provided. That said article does not contemplate the trial of an accused person in any other manner than by a jury.
    Second — That act number 35 of 1880 is unconstitutional in providing that an accused may waive trial by jury and be tried by the Court.
    Third — That the act of 1880, providing for the trial of offenses where the penalty is not necessarily imprisonment at hard labor, does not contemplate that an accused person may be tried without a -jury, except at terms other than regular jury terms.
    Fourth — The right of trial by jury accorded to an accused person, by constitutional law is a personal right, which, when once waived by the accused, may be revoked by him, upon his application for a trial by jury.
    Fifth — That where.it is shown that a jury is in attendance at court, on the day fixed for trial, and the accused demands trial by jury, he should be entitledo to the same, although his application for jury trial may have been filed on a day when there was no jury in attendance.
    Sixth_That upon the granting of a new trial in criminal matters, the case must be tried de novo, and the accused will be allowed to elect whether he be tried by the judge or the jury, notwithstanding he may have made an election previous to the first trial.
   The opinion of the Court was delivered by

Fenner, J.

Defendant, prosecuted for larceny, on his arraignment, elected to waive trial by jury, was tried by the district judge, and found guilty. On his motion, the judge granted him a new trial, and his ease went over to-the regular jury term, which opened on June 13th, 1881. On that day, the venire was returned in open court, and the petit jury was discharged until the 16th. On the láth, the defendant filed his motion, stating that, on the first trial of his cause, he had elected to be tried without a jury, but that, on the new trial which had been granted him, he elected and prayed to be tried by jury.

On objection by the district attorney, the court fixed the motion for hearing on the 15th, and set the case itself for trial on the' 16th, on which day the jury was to be, and presumably was, in attendance.

On hearing of the motion, the judge denied the prayer, on the' ground that having once elected to be tried by the judge, and having been so tried, it was not in the power of accused, upon the granting of a new trial, to revoke his election and demand a jury trial.

We think the judge erred. The right of trial by jury, in criminal prosecutions, is a constitutional right always jealously guarded in Anglo-Saxon jurisprudence. This'right arises and exists as to every trial — as well as to that which follows upon the granting of a new trial, as to the ordinary original trial. Being aboht to be tried in a criminal prosecution, the Constitution invests him with the right of jury trial, of which he cannot be deprived except on his voluntary election. His waiver of jury as to the first trial may be presumed to continue as to the new trial, unless timely application be made to revoke the same; but he cannot be deprived of this right of revocation on timely application. The only limitation on his right would be that his application should be timely — that is, made in such season as not substantially to delay or impede the course of justice. In the present case, the trial might have proceeded before a jury on the day when it was tried before the judge, and the application, made prior thereto, was entirely seasonable, and should have been granted.

It is, therefore, ordered that the verdict, judgment and sentence herein be annulled and set aside, and that the case be remanded for a new trial according to law.


text:
    No. 1110.
    T. C. Anderson vs. His Creditors.
    On the trial of Oppositions to the application of a debtor for a respite, the creditors cannot propound interrogatories to him, such as, whether he had disposed of his property during the pendency of the respite proceedings, when the Oppositions contained no such charges, . hut only averred that he had not placed all his property on his schedule.

      It seems that it is no good ground of opposition to the application for a respite, that the debtor placed on his schedule parties who were not his creditors, because, by so doing, he cannot prejudice the real creditors, and any of the latter, though not on the schedule, can, by making oath, vote at the meeting

      In the absence of charges and proof of dereliction of duty, the notary appointed by the Court to hold the meeting of creditors, had the power, in the exercise of his sound discretion, to adjourn the meeting.
    The majority in number and in amount, required for a forced respite, is that of creditors, whether placed on the bilan or not, who have appeared at the meeting, taken the oath prescribed by law, proved their claims and voted for the respite.
    The respite and insolvency laws are perfectly distinct. The former rest upon the apparent solvency of the debtor, and are not suspended or affected by the general bankrupt law of the United States.
    APPEAL from- the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.

      John E. King & Teazle for Plaintiff and Appellee.

      F. F. Perrodin and.iT. L. Garland for Opponents and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This case was remanded last term, for the, trial of oppositions made to the homologation of the deliberations of the creditors of the plaintiff, on his application for a respite. 32 An. 892.

. The oppositions were tried and dismissed. The deliberations were homologated and the respite asked was granted. Erom the judgment thus rendered, the opponents have appealed. Their grounds of complaint are substantially:

1st. That the plaintiff has not filed a complete and descriptive schedule of his assets and liabilities.

2d. That many who are represented by him as his creditors are not such, or, if such, are so for much smaller amounts ; that certain named persons were not his creditors at all.

3d. That, even then, said parties had no right to vote at the time they did, which was not that fixed by the court for the holding of the meeting of the creditors, but that appointed by the notary arbitrarily and illegally.

1th. That the creditors who voted on the day assigned by the court refused the respite ; that the creditors placed on the bilan and who did not appear at the meeting, should have been counted as having voted against the respite. ' •

5th. That, in any event, the proceedings and judgment are unwarranted by law, because carried on under laws which, forming part of the State insolvent system, had been abrogated by the uniform bankruptcy laws adopted by Congress, and were not in force at the time and while the proceedings were inaugurated and consummated.

On the trial, the opponents propounded interrogatories to the plaintiff, for the double purpose of eliciting evidence to substantiate the allegation that he had not stated .all his property, and to show that he was disposing of his property during the pendency of the respite proceedings. On objection to the latter object, the court ruled, that the interrogatories should not be put, for the reason, that the oppositions incorporated no averment to justify the inquiry. To the ruling a bill was reserved, which appellants insist that we shall review.. In so doing, we have only to say, that the ruling was perfectly correct, ás in full accord with the elementary rule of evidence, which excludes evidence offered to prove matters not alleged. Particularly is such the rule, in cases of this description, where the contentions of parties are to be conducted and controlled according to the strict requirements of the law of pleading.

Having thus cleared the case for an investigation of it on its merits, we will now proceed to do so.

1st. The opponents have preferred no charge of fraudulent concealment on the part of the applicant for a respite.

The law certainly intends and requires that parties seeking that relief should be actuated by the strictest/good faith, and should deal with the utpost fairness with the creditors whose indulgence they seek, by furnishing to them all proper information within their control, concerning their rights and obligations, so as to enable them to determine whether it is or not their interest to grant or refuse the extension sought. The law may decline its protection where the embarrassed debtor knowingly withholds, or intentionally refuses that information, when in his power ; but it never contemplated doing so, when mistakes or errors have been involuntarily committed, and when the debtor, of his own motion, or on interrogatories, satisfies inquiries on the subject.

The record shows how the imperfections charged originated and how certain creditors were not included on the bilan. We are satisfied that the matter was fully elucidated below, and that the irregularities denounced by the opponents have been remedied and can no longer form any serious ground of complaint.

2d. It is immaterial whom the plaintiff placed on his schedule as his creditors, as, by doing so, he can prejudice no real creditor, whether put thereon or omitted therefrom. Parties carried by him on the bilan are recognized by him as his creditors, but are not made such by this mere act so as to conclude other creditors, or to give them any voice in the proceeding, unless they previously prove their claim by their personal oath. The insertion of their name creates a sort of prima facie presumption of their rights, which may fortify their sworn attestation and other proof which they may adduce in their own favor. It is not until after a litigation has arisen, putting the matter at issue, and has been determined, that it can be ascertained who is and who is not a creditor. It may well be, however, that parties pretending to be creditors may, by their oath, pronounce themselves such, in order to entitle them to a vote at the meeting, when they are, in truth, no such creditors. In such cases, in a proper proceeding, — in the shape of .an opposition to the homologation o£ the creditors, — the court would determine upon the right of the parties to vote, but would not assume, however, in all cases, to pass finally on the correctness of their claims for classification, which can be definitively adjudicated upon only when issues properly formed are presented for-determination.

We have looked into the record on this subject, and find that eight persons, claiming to represent $13,160, have voted against, while ten others, sufficiently proved to be creditors, representing upwards of $30,000, have, on the three different days, Voted in favor of the respite.

In making the computation, we leave out of view the question, whether the Citizens’ Bank, which had at first voted against, and which subsequently intervened, praying to be permitted to vote for the respite, can be allowed to do so. It is clear that, if the bank could not change its vote, it could withdraw it before homologation. Even if it could not, the vote against the respite would be that of nine creditors representing $17,106 against, and ten creditors, representing more than $30,670, for the respite. Conceding that the five children of the applicant whose claims, for $6500, are assailed, are not creditors, the result would remain unchanged, as they are not included among the ten assenting creditors.

3d. We-think that, in the absence of any charge and proof of gross dereliction of duty, detrimental to the interest of the creditors, the notary appointed by the court to hold the meeting of the creditors, had the right, in the exercise of a sound discretion, expressly vested in him by law, R. C. C. 3089, 3090, to adjourn the meeting, as was done in this case.

On the day assigned by the court, which was the 28th of June, 1879, a Saturday, he adjourned after receiving the votes of thirteen appearers,. at five o’clock P. M., to Monday, the 30th, concluding his procés verbal, by saying, that he so adjourned upon advice, that other creditors'were unable to attend on that day, who would do so on Monday. On that day, he received the votes of three creditors, and stating that, it being sunset, and the receiving of the declarations and votes not being completed, he adjourned the meeting to the day following, when he received the votes of eight persons, claiming to be creditors, and closed his procés verbal with a recapitulation, showing that nine creditors, representing $19,941, had voted against, while fifteen others, representing $37,676, had voted for the respite.

4th. Considering that the notary had a right to adjourn and to hold the meeting- as he did, it is unnecessary to pass upon the' question raised as to the creditors who voted, on the 28th of June, against the respite.

The proposition that the creditors placed on the bilan, who did not prove their claims and vote at the meeting, should be counted as having voted against the respite, is untenable. The authorities oited in support, In 3 N. S. 446, 504, 8 L. 467, 12 An. 520, 14 An. 30, cannot be successfully relied upon.

The two first decisions were made while the Oode of 1808 was in force, which provided, that the creditors who had not taken the oath, at the meeting, would not be reckoned among the creditors possessing three-fourths of the debt. The court held, that it was not sufficient, that three-fourths of the creditors should assent, but that it should be made to appear by their oath that the creditors who have agreed are' bona fide creditors, and thus, to prevent and defeat collusion, concluding that the proposition required to grant the respite should be three-fourths of the creditors In number and amount. In other words, the court held that the abstaining creditors should not be counted as consenting to the respite.

The provision of the Code of 1808 was modified by the Code of 1825, Art. 3053, which was to the effect that “ the forced respite takes place when the creditors do not all agree, for, then, the- opinion of three-fourths in number and amount- prevails over that of the creditors forming the other fourth, and the judge shall approve such opinion, and it shall be binding on the other creditors who did not agree to it.”

The case in 8 L. 497 does not appear to have any bearing on the question before us. It merely decides, that all the creditors, whether hypothecary or chirographery, on the bilan or not, have a right to vote and to be counted when voting, on an application for respite.

Some eight years after this decision was rendered (1843), the Legislature passed an act amending article 3053, so that the opinion -of a majority of the creditors in number and amount should prevail in cases of respite. See Act 1843, p. 51.

In the case in 12 An. 520, the question presented was, whether in counting the votes to ascertain the majority in number anci amount, those given at the meeting of the creditors were alone to be considered, or whether the majority in number and amount was to be ascertained by reference to those admitted by the debtor upon the bilan: the court, referring to and relying upon the cases in 3 N. S. 446, 504, and 8 L. 467, held, with hesitation, that reference had to be made to the creditors on the bilan also, who, not having voted for, should be considered as having voted against, the respite. Hence, the defense of respite granted set up by Castel, in that case, was overruled and the plaintiff, Kouanet, recovered judgment.

The question presented in that case had never been solved before, and has not since been again submitted. It was one apparently involving some doubt; but whatever the views entertained at the time were, we cannot now recognize the correctness of the diffident ruling, without obliterating entirely from the Code the provision which declares, that the creditors who do not make the oath prescribed “shall not have the right of-voting, and their credits shall not be counted among those by which it is to be determined whether the respite is granted or not. R. C. C. Art. 3087, g 5; Art. 3054 of the Code of 1825.

In 14 An. 30, the Court held that since the statute of 1843, a bare majority of the creditors have the power to grant the respite and thus postpone the payment of the debts of the minority. It does not appear in that case, that the abstaining creditors placed on the bilan were counted at all.

After a survey of the law and jurisprudence, and upon mature deliberation, we conclude that the required majority in number and amount is that of creditors, whether placed on the bilan or not, who-have appeared at the meeting, taken the oath prescribed by law, proved their claim and voted for the respite. This majority is indispensably necessary to grant the relief, so as'to bind the creditors who have not agreed to it, in other words, who have refused it. Holding differently, would be to recognize in the applicant the power of disqualifying from the right of voting, creditors voluntarily omitted by him from the schedule. The proposition that the abstaining creditors are to be counted as'having voted against the respite, therefore, lacks foundation, and being implausible, cannot for a moment be countenanced.

5th. The opponents next contend that the laws relative to respite, being part of the insolvent laws of the State, were superseded, abolished and repealed by the passage by Congress of a general bankruptcy law, and have not since been revived or re-enacted.

There is no affinity between respite and surrender laws. They differ essentially. The former rest on the apparent solvency, the latter on the conceded insolvency, of the debtor. In the first case, the property remains in the possession and absolute ownership of the applicant, in the latter, it passes with qualifications to the creditors. 12 An. 182; 3 R. 407; 3 R. 410.

In the case of Rush vs. Creditors, 3 R. 407, this Court held that the respite laws had not been repealed by the Federal bankrupt act. See, also, Bouvier Law Dict. vol. 2, 363; Pothier Obl. vol. 1, No. 88; R. C. C. 3051.

The right of the States to pass a bankrupt law is not extinguished, but merely suspended by the enactment of a general bankrupt law. Such a law merely suspends, without repealing them, State insolvent laws, which revive and continue in force on the repeal of the bankrupt law, and need not, therefore, be re-enacted. 12 B. R. 182; S. C. 43; Md. 153. The repeal of such law removes the disability created by the Act of Congress. Sturges vs. Crowninshield, 4 Wheat. 122; Bump’s Notes on Constitutional Decisions, p. 72-79; Orr & Lindsay vs. Lisso & Scheen, 33 An.

It cannot be claimed that those laws impair the obligations of contracts. They were in force when the relations of debtor and creditors arose between the plaintiff and the opponents, and they are presumed to have contracted in reference to those laws, which, therefore, form part of their contracts or engagements, which having thus been entered into or incurred, must be controlled accordingly, as effectually as if it had been expressly provided that, in case a majority of the debtor’s creditors in number and amount were, on his judicial application, to grant him an extension of time, the delay would apply to the claims of all creditors composing the minority.

The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made» and which are necessarily referred to in all contracts, and form a part of them as the measure of the obligation to perform them by the one party and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that the terms of the contract indicate according to their settled legal meaning. 12 Wheat. 213; 4 Wheat. 122; 1 How. 311; 2 How. 508; 3 Mart. 531; 9 Cal. 81; 31 Penn. 175; 6 Otto, 448, 598; 4 Wall. 535; Bump, 120-127.

We find no error in the judgment appealed from.

It is, therefore, affirmed with costs.


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    No. 1111.
    The State of Louisiana vs. Herman R. Poland.
    Under Seo. 1056, Revised Statutes, tlie verdict of the jury is good, though omitting the words: “ not guilty of embezzlement ”, — and containing pnly the words: “guilty of larceny
    Under the same section, the information is sufficient in charging the accused with embezzlement as " agent ” merely.
    APPEAL from the Criminal District Court for the parish of Orleans. Roman, J.

      J. C. Fgan, Attorney General, for the State, Appellee.

      R. L. Belden and F. (?. Chamberlain for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant was prosecuted, on information, for the-crime of embezzlement. The jury returned a verdict “ guilty of petty larceny.” Error in the verdict is assigned on three grounds, viz;

1st. The section 1056 R. S. provides that in prosecutions for embezzlement, i£ the evidence establishes, not embezzlement, but larceny, the accused “shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not .guilty of embezzlement, but is guilty of larceny.” It is contended that the verdict is defective because not finding the accused “not guilty of embezzlement.”-

The point has no force. The verdict has precisely the same meaning, force and effect as if it read “ not guilty of embezzlement, but guilty of petty larceny.” It operates a complete bar to further prosecution for the same act.

2nd. It is contended that as the information charged the defendant with embezzlement as “ agent ” merely, the verdict for larceny is not authorized by Sec. 1056 R. S., whose terms only cover the case of “a person indicted for embezzlement as a clerk or servant, or person employed for the purpose or in the capacity of a clerk, or servant or depositary.”

The term “ agent ” is certainly broad enough to cover at least some of the capacities mentioned in the section, which enlarges the designation of specific capacities contained in the statute defining the crime of embezzlement and mentions capacities only covered, in that statute, under the general term “ agent.” In the absence of any bill of exception, motion for new trial, motion in arrest, or objection of any kind, in the court below, we must assume that the evidence justified the verdict.

3d. It is objected that the statute only authorized a verdict or " larceny,” and not for " petty larceny.” In view of the Act 124 of 1874, this objection is frivolous.

Judgment affirmed.


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    No. 1134.
    David Hayes, Administrator, vs. T. Viator, Sheriff, et al.
    Lands held in indivisión "by several parties must be assessed as a -whole in the names of all the joint owners and for the non-payment of taxes, must be seized and advertised for sale also as a whole, in proceedings directed against all the joint owners.
    The injunction to prevent the tax sale in the case, is made perpetual on account of numerous other irregularities in the proceedings.
    APPEAL from the Twenty-first Judicial District Court, parish of Iberia. Fontelieu, J.

      Jos. F. Breaux and P. L. Benoudet for Plaintiff and Appellant:
    First — The description of immovable property assessed ior taxes should be correct. Person vs. O’Neal, 32 A. 234; Burroughs, p. 204* Blakewell, pp. 141, 142, 147 ? Thibodeaux vs. Keller, 29 A. 509; "Woolfolk vs. Fonbene, 15 A. 5; Sutton vs. Calhoun, 14 A. 210.

      Second — The names of the owners of the land assessed should be correctly carried upon the assessment roll. G-uidry vs. Broussard, 32 A. 924; lb. 912 ; 29 A. 509.
    Third — Property belonging to joint owners should be assessed against the joint owners. The partition of property should not be attempted by the assessor, a part of whose functions, consists in listing lands and in assessing them correctly, but nob in partitioning them to the detriment ot the interest of mortgage creditors. Blakewell, pp. 141-147.
    Fourth — When property is divided some account shall be taken of the relative value of the different lots.
    Fifth — When assessment of land is made against non-residents, the fact of non-residence should be mentioned on the rolls. Act of 1871, section 18, p. Ill; Act of 1877. section 16, p. 139 ; Cooley, p. 277.
    Sixth — Registry laws apply to tax liens. 31 A. 517 ; Constitution 1868, Art. 123 ; 25 A. 232.
    Seventh — The delinquent list should be a copy of the assessment roll.
    Eighth — The prescription of two, throe and five years, is a bar to the recovery of taxes for 1877 and previous years when the land has not been forfeited to the State.
    Hinth — Act Ho. 9, of 1878, sections 20 and 22, fix amount which would be exigible for interest if the taxes were due.

      W. B. Merchant, District Attorney, contra.

   The opinion of the Court was delivered by

Todd, J.

On the 23d of January, 1869, John Hayes, whose succession is plaintiff in this case, sold to David Hayes, Alexander M. Hayes and William Hayes, as described in the act of sale, “ a certain plantation situated in the parish of Iberia, and containing two thousand and sixty acres, more or less, situated on both sides of the Bayou Petite Anse, in Township 13, South Bange 5 East, and in Township 13, South Bange 6 East,’? with the further description that it was the same plantation which had on a previous date been adjudicated to Pelagie Hayes at a succession sale.' The price was $15,000 on a credit. On the 25th of March, 1875, a judgment was rendered against the vendees for the sum stated, with a recognition of the mortgage and vendor's privilege on the property, which had been retained as security for, the payment of the price., No partition of the land was made between the joint purchasers.

In January, 1881, an execution issued on this judgment, and the plantation was seized.

On the 5th of March following, the sheriff and tax collector advertised the property for sale for payment of delinquent taxes.

The plaintiff, alleging 'that the property was then under seizure to pay the judgment mentioned, enjoined the tax collector from selling the land on the following grounds, set forth in the petition, which we copy, to wit :

1. The lands, an assessment of which has been attempted, are not correctly located; the boundaries are varying and uncertain.

2. They are not assessed in the names of the owners.

3. A mortgage creditor is not bound by the illegal division of lands. If the property be divided, it must be divided in a legal manner. If illegally divided for taxation, the forfeiture to the State is equally as illegal, and it (the State) cannot have the land hold as having become its property by forfeiture.

4. Assessment was made against William Hayes as a resident. He had always been a non-resident.

5. The delinquent lists are informal and absolutely illegal.

6. They have not been recorded in time to secure a privilege in favor of the State, priming plaintiff’s mortgage, nor have the assessment roils of 1877, and since, been recorded in time to secure a privilege against the pre-existing rights of the plaintiff.

7. The amount claimed is not indicated in the advertisement for all the years for which taxes are alleged to be due.

8. No forfeiture having been made to the State, the taxes are prescribed ; in any event, the taxes for 1877 are prescribed.

9. Interests and costs are not due at all, but, if due, those claimed are excessive.

The answer was a general denial.

The plaintiff is appellant from a judgment rejecting his demand and dissolving the injunction.

It is unnecessary to consider.all the alleged nullities set up in the plaintiff’s petition; we will-notice those only that have mainly influenced us in the conclusion we have reached.

We have given the description of the land as found in the deed, in order to show the discrepancy between the true description of it and that given in the tax proceedings relating to the same property, which latter description we transcribe literally from the record, as follows : -

“Hays David 809 b’ d’ N. Hollingsworth. S. Hayes W. Avery. Hayes M. 800 acres, b’ d’ N. Hollingsworth S. Hayes W. Avery.”

And under the heading of non-residents :

“ Hayes Wm. 800 acres b’d. N. Hollingsworth S. Mass.”

This enigmatical, condensed and unique description is the one under which, it is alleged, the land is to be sold ; and it is the same, with some very slight and immaterial variations, in all the assessment proceedings since 1871.

When it is considered that the property assessed and to be sold under this vague description, consisted of a plantation or land, as described in the deed referred to; that there had never been a partition of it, and each of the taxpayers held no definite number of acres, but an undivided interest in the entire tract, the vitally defective character of this description becomes obvious to every one.

The officer had no power to divide the lands for the purpose of sale, yet he offers to sell 800 acres as belonging to each one of the alleged delinquents. Should he find a purchaser or purchasers, how would he manage to put each of them in possession of 800 acres of land marked out and defined, in which no one else would have an interest but such purchaser ? The assessment is the foundation of the proceedings relating to a tax sale. It is likened to a judgment which is the basis ‘of a judicial sale. It would hardly be pretended that under a judgment against “A” the sheriff could seize and sell a certain number of acres of a tract of land which “A,” the judgment debtor, owned in indivisión with “B,” and make delivery of the same to the purchaser. It hás been decided that he could not seize or sell a definite part or the whole of the land under such conditions. 3 R. 257; 23 An. 681. And equally powerless would a tax collector be to sell under such an assessment as'we have shown.

A proper assessment is essential to the validity of a tax sale. 14 An. 709; 15 An. 15; 30 An. 293.

It is not shown that Wm. Hayes or A. M. Hayes were even served with the notices prescribed by law, or made any return of property to the assessor for assessment.

Wm. Hayes lived in another parish, and is termed in the collector’s proceedings a non-resident. The proceedings, however, were not so conducted against him, but there was a total disregard therein of the requisites of the law applicable to this class of taxpayers.

Wm. Hayes died long prior to the seizure and proposed sale by the tax collector, but notwithstanding his death, the proceedings were carried on and the sale advertised to take place as if he were living.

Notices appear to have been served alone on David Hayes, and he was treated as the agent of the others; but no authority to represent them is shown. The tax collector is not represented in this Court by counsel, and we are at a loss to know on what he relies to break the force of the attack made by plaintiff on these tax proceedings. It might be cqntended that David Hayes, having been notified and having consented to this illegal assessment, the sale should proceed as to the 800 acres assessed against him. There might be force in this proposition if he were the sole owner of these 800 acres, and no one interested in the proposed sale but himself; but as the entire land is undivided, the 800 acres offered for sale as his property are also undivided; and that number of acres or a greater or less number of the whole body could only be sold in indivisión; and two-thirds of.the sale would belong still to his joint proprietors, and no title could, therefore, pass to the purchaser to a single acre, as the distinct property of the delinquent taxpayer.

This makes it the more apparent that land held in indivisión must be assessed according to the title, and only the undivided interests of the joint owners, and not any definite part or stipulated number of acres, can be legally assessed as the property of any one of them.

There are other irregularities that might be noticed, such for instance as the failure of the collector to swear to the correctness of the assessment rolls as required by law; the failure of the assessors to attest or approve the tax rolls, and to deposit or return them to the proper office within the time prescribed. These irregularities might be considered in detail; but we have sufficiently shown illegalities in the proceedings of so vital a character, as to clearly entitle the plaintiff to arrest the sale threatened to be made under them, to the prejudice of his mortgage rights and of his possession of the property under the writ issued to enforce his judgment. '

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the defendant, tax collector of the parish of Iberia, be and he is hereby perpetually enjoined from selling the property described in the mortgage and judgment set forth in the petition, or any part thereof, and the act of said officer in advertising and offeñng for sale said property be and the same are declared unauthorized, said defendant to pay the costs of both courts.


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    No. 1097.
    Succession of Mrs. Jane Hopkins. On Opposition to the Executor’s Account.
    A testamentary executor who has qualified as such, cannot be deprived of his commission on the amount of the inventory because the heirs and legatees agreed between themselves to make a distribution of the assets of the succession.
    ApPEAL from the Parish Court, parish of Iberia. Allison, J. .

      W. B. Merchant for Opponents and Appellees.

      Jos. A. Breaux and Bon Caff rey for Defendant and Appellant. ‘
   The opinion of the Court was delivered by

Levy, J.

Mrs. Jane Hopkins died in the year 1879, having made her nuncupative will by public act, which, shortly after her death, was duly probated and ordered to be executed. In her will she appointed Wm. Robertson her executor; he duly qualified as such. After several particular legacies, she bequeathed the remainder of her estate to her brother-in-law, Lucius D. Hopkins. The following clause is contained in the will: “ The testator hereby declares, that she desires William Robertson to be appointed testamentary executor, and she, therefore, appoints him, with full authority as executor, to have the seizin of the ■property and to perform all the duties incumbent on an executor.” The executor filed his final account of administration, in which he charged the succession with the sum of $2184 55, commissions of 2¿ per cent, on the total amount o£ the inventory, ($87,382 62J).' To this item, Mrs. Mary Land and William Land, legatees, filed an opposition, on the ground that the executor had done and performed, no acts of administration; had not taken possession of the effects or property of the succession, there having been a comjpromise and settlement, by notarial act, between the particular and universal legatees, which obviated the necessity of any administration by the executor, and whereby the estate was put into the possession of the opponent, Mrs. Land. This opposition was sustained by the Parish Court, and the claim of the executor for said item for commissions rejected; and said executor has appealed.

The judgment of the lower court, in this regard, is erroneous. The executor, duly constituted such by the express terms of the will, took the prescribed oath of office, and thereby assumed the functions of his office and became responsible for their faithful discharge and performance. If he had been derelict in duty; if through his misfeasance or malfeasance the estate had been squandered or diminished, either by himself or those to whom he entrusted it, or whom he permitted to enjoy or use it, there can be no question as to his liability to the parties who might be injured. It matters not that the legatees or heirs chose, by consent and agreement among themselves, to make a distribution of the assets of the succession; this cannot be allowed to deprive the executor of the fees and commissions fixed by law.

The oral declarations of the testatrix in regard to her alleged wish, that the executor should resign his trust, cannot prevail over the solemn terms of the will itself, any more than oral suggestions or declarations in regard to the legacies, particular and universal, could have authorized or justified the executor to refuse the recognition or payment of the legacies made in the will itself. There is not the slightest foundation for the opposition, either in law, reason or justice. C. C. 1683; 26 An. 195; 25 An. 323; 12 L. 73; 1 B. 98.

In this case, the executor, under the will, had full seizin of the estate, and is entitled to 2¿ per cent, commissions on the value, as determined in the inventory.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended in so far as it sustains the opposition to the item of $2184 55, commissions claimed by William Eob'ertson, executor, and that said item of $2184 55, commissions aforesaid, be allowed as a just legal charge against the succession of said Mrs. Jane Hopkins, and in all other respects the judgment appealed from is affirmed; the costs of their opposition and of this appeal to be paid by the opponents, Mrs. Mary Land and William Land, in solido.


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    No. 1117.
    Julie Cormier, Administratrix, vs. Theodore DeValcourt, Administrator.
    A married woman, separated in property and administering her own affairs, is liable on her note without proof that it enured to her individual benefit.
    The plea of interruption of prescription, after the latter has been acquired, can only be supported by written evidence.
    A Curator ad hoc of a minor cannot waive citation.
    APPEAL from the Twenty-fifth Judicial District Court, parish of Lafayette. Clegg, J.

      M. E. Girard for Plaintiff and Appellant:
    An attorney can accept service of process and interrupt prescription.
    A curator ad hoc may also acknowledge service and interrupt prescription. 31 An. 540; 2 An. 916.
    The acts of an attorney or agent unless disavowed in proper time, and as soon as brought to the notice of the principal will be thereby ratified and be binding for all purposes.
    A party purchasing property at a sale made by virtue of a judgment ordering said sale, is estopped from questioning the validity of that judgment and all proceedings therein, and a party acquiescing in a judgment by paying a part of it, renounces the means and exceptions that might have been opposed to it. 23 An. 28, Gernon vs. Dubois; 23 An. 524, Wailes vs. Bank.
    A party who has entered into a compromise with another to pay him a note after a certain time, is precluded from contesting the rights of the creditor. 22 An. 429, Conrad vs. Callery.

      O. DeBaillon and (7. H. Mouton for Defendant and Appellee:
    First — Mote sued upon is prescribed. R. C. C. 3540.
    Second — Authority of an attorney can be denied — when denied, must be proved. 10 An. 669; 15 An. 569; 5 An. 551; 14 An. 866; 1 An. 398.
    Third — Only the defendant himself, or his attorney, can accept service and waive citation under article 177 C. P. The appointee of the court cannot. 4 28*. S. 680; 10 M. 472; 1 M. 516; 33 An - 212.
    Fourth — Service on a minor can be made only on the curator in person or at his domicil. C. P. 195.
    Fifth — A minor cannot be brought into court, by simply having a curator ad hoc appointed to represent him. 2 Ad. 562.
    Sixth — The acceptance of a curatorsbip must be made to appear. 2 An. 446.

    Seventh — Acceptance of service and waiver of citation by an unauthorized attorney — not even an appearance — does not interruptpreseription. 14 An. 3, 866; 1 An. 398; 2 An. 840; 5 An. 551; 10 M. 472; 4 FT. S. 680; 1 M. 516. \
    Fighth — Petition of intervention must be served, and parties against whom it is directed must be cited to have any legal effect. G. P. 393; 15 A. 206; 20 A. 258; 3 A. 331; 16 L. 268; 25 An. 564.
    Minth — Mote suod on was subscribed by a married woman for money borrowed, without complying with Acts of 1855, p. 254; the burden was on plaintiff to show that the money boirowed enured to the benefit of the wife. 15 An. 352; 16 An. 449; 20 An. 229; 24 An. 96-89; 21 An. 525; 29 An. 123; 5 M\ S. 56, 5, 495; 15 An. 628-621; 12 An. 853; 5 An. 173; 14 An. 172, 700; 22 An. 457; 23 An. 196, and other authorities.

      Tenth — It is not necessary when bill oí exceptions is tendered to mention the dame on note of evidence. Acts 1877, E. S. p. 176.
    Eleventh — After prescription has accrued, an administrator cannot waive or renounce. 2 An. 546, 927; 21 An. 373, 748; 24 An. 83, 183; 26 An. 380; 1 An. 330; 8 An. 505; 23 An. 172, 193; 22 An. 445; 31 An. 721; 3 N. S. 707; 25 An. 491; 18 An. 219.
    Twelfth — Nor could Philomene Thibodeaux, the natural Tutrix. 9 An. 122; 29 An. 798.
    Thirteenth — No compromise was made or could have been made. 15 L. 145; 11 An. 184, 212; 14 An. 274, 617; 25 An. 476, 511.
   The opinion of the Court; was delivered by

Levy, J.

Julie Cormier, administratrix of the succession of Placide Guilbeau, deceased, instituted this suit on the 29th of June, 1874, against Theodore DeValcourt, administrator of the succession of Leontine Guilbeau, wherein she seeks to recover of' the defendant, representing said last named succession, the sum of $1736 05 with 8 per cent, per annum interest from 11th of June, 1864, on a promissory note for said sum signed by said Leontine Guilbeau, assisted and authorized by her husband, dated June 11th, 1864, payable on demand to Placide Guilbeau, Sr., or order. Defendant in his answer denied that any consideration had been given for the note, and alleged that it was null and void, and pleaded the prescription of one, three, five and ten years. There was judgment in favor of defendant, dismissing plaintiff’s suit and rejecting his demand at his costs, and plaintiff has appealed.

Leontine Guilbeau was separate in property from her husband, by a decree of court rendered in the year 1847, and administered her own property and affairs; the note sued on was given in renewal of one previously executed by her, and she had acknowledged it as her own debt. Being thus separate and administering her own affairs, there is no proof offered that the consideration of the note enured otherwise than to her individual benefit. The only question involved, then, is that of prescription. In 1869, and before the expiration of five years since the maturity of the note, a suit, No. 3038, was. instituted by the plaintiff thereon, the service of petition having'been acknowledged by Wm. Moúton, Esq., as attorney of the defendants, the heirs of Leontine Guilbeau. On appeal to the Supreme Court, the judgment in favor of plaintiff was reversed and there was judgment of nonsuit in favor of defendants. Within a short time after this decision of the Supreme Court the present action was brought. On the face of the note prescription had accrued, and this plea being made, it devolved upon the plaintiff to show interruption of prescription. Defendants rely upon the institution of suit No. 3038 and the service made therein, and on an alleged compromise or agreement in 1872 between plaintiff and the heirs of Leontine Guilbeau, as an acknowledgment and recognition of the debt evidenced by the note. Defendant denies that the attorney who acknowledged service of the petition in suit No. 3038 had been employed by the heirs or those representing them, and averred that such acknowledgment and waiver of citation was null and void and not binding on them, and deny the validity of the allege.d compromise or agreement in 1872, made after prescription had accrued and by parties unauthorized to bind them. We are satisfied, after careful examination of the record, that the acknowledgment of service of the petition in suit No. 3038 by the attorney was done without the authorization of the heirs of Leontine G-uilbeau, and that the proceedings in that suit do not, therefore, operate as an interruption of prescription. Even if the compromise or agreement was made with proper authority (which is not established by the evidence in the record), the acknowledgment or recognition, inferential at best, was made after prescription had accrued, and not being made in writing, could not operate as a renunciation. The service on a curator ad hoc of a minor must be made in person or at his domicil, and waiver of citation by such curator is not sufficient. 2S An. 215; 5 An. 551, 6 R. 142; 12 R. 540; 28 An. 258.

The judgment appealed from is affirmed with costs.


text:
    No. 1126.
    David H. Lyons vs. Parish of Calcasieu.
    Suit by sheriff against Calcasieu parish for bis fees. His account being approved by the Clerk and presiding Judge of the Court, under seo. 1042 Rev. Sta., the burden of showing illegal charges is on the Parish.
    The Court a qua properly refused leave to file amended Answer, after the cause was called for trial, under the circumstances of the case.
    Plea of prescription overruled.
    APPEAL from the'Fourteenth Judicial District Court, parish of Calcasieu Hudspeth, J.

      F. A. Gallaugher and G. A. Fournet for Plaintiff and Appellee:
    Pirst — An amended answer comes too late when offered after the case has been called for trial. 22 A. 350, 534; C. P. 420.
    Second — An amended answer changing the substance of the issue oannot be allowed. 11 La. 73; 22 An. 350; 28 An. 109 ; 32 An. 920 ; C. P. 419-420.
    Third — The matter of a continuance addresses itself to the sound discretion of the court. 18 An. 222; 19 An. 268.
    Pourth — Police Jury warrants may be admitted to corroborate and substantiate the claim. 28 An. 192, 8G0.
    Pifth — Police Juries oannot question the correctness of accounts approved by the clerk and presiding judge. R. S. 1042; 14 An. 246; 18 An. 195; 27 An. 168; Parker vs. Robertson 14 An. 246.
    Sixth — The testimony of a witness taken at the first trial is admissible, if the witness he absent at the second trial. 26 An. 313 ; 29 An. 156; Shaw vs. Howell, 18 An. 195.
    Seventh — The sheriff is entitled to ten oents a mile going to and returning from the service of each and every process. Act 101 of 1870; New Orleans vs. Patton, 27 An. 169.

      Andrew J. Kearney for Defendant and Appellant:
    In a suit "by a sheriff on account for costs and fees, warrants in his favor on the parish treasurer for part oí such costs and fees are not admissible in evidence, because the evidence does not correspond with the allegations.
    One deputy sheriff cannot make nor prove a return of service of process served by another deputy, nor prove the fact of such service. This can be done only by the deputy who* made the service.
    The law allowing sheriffs to charge mileage only for miles actually and necessarily traveled if he serves process in the same case or on the same day in the same neighborhood; on. several persons, he cannot legally charge full mileage for each service. The law on this point construed and decided.
    The plea of the general issue, in a suit on account, throws on plaintiff the burden of proving each item of his account, and by legal evidence.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sues the parish of Calcasieu for an amount due him as sheriff for fees in criminal eases, maintenance of prisoners and attendance on court.

He .establishes that his' accounts have all been approved by the clerk and presiding judge of the court as provided by B. S. £ 1042, and that most, if not all, of them had been presented to the police jury of the parish and acknowledged by that body. He further satisfactorily establishes that the services charged for were actually rendered.

No serious suggestion is made that any of the charges are in excess of the rates allowed by law, except in the matter of mileage, as to which it is claimed that in serving process upon several persons, in the same case, at the same time, and in the same neighborhood, he has charged full mileage for each service. It is claimed that this is in violation of the law which only allows mileage for miles actually and necessarily travelled ” in making service. This position may, perhaps, be correct, though we are not called on to pass upon it here. The approvals of the accounts by the clerk and judge and their acknowledgments by. the police jury, certainly threw upon defendant the burden of showing errors or illegalities therein; and there is no evidence showing that any particular item or items are amenable to the objection above stated.

We think, under the circumstances of this case, the judge a quo did not abuse his discretion in rejecting the amended answer offered to be filed by defendant after the cause was called for trial. The case has been pending for two years and had been at issue for about a year. It was a recused case and was set for trial at a special term before a judge from a neighboring district. Its continuance would have involved great inconvenience and delay. No sufficient reason was assigned for the laches in postponing the filing of the answer; and circumstances indicated that the object was delay. Besides, nothing suggests that defendant was deprived of any means of defense which would have been afforded under the amended answer.

The plea of prescription filed in this Court has no force. The accounts sued on were accounts acknowledged and prescriptible only by ten years.

Justice has been done.

The judgment is affirmed at appellant’s cost.


text:
    No. 1112.
    The State of Louisiana vs. Samuel Harlis.
    In an Indictment for perjury, itj is indispensable to aver before which Court or authority the offense charged was committed, and also, that the officer who administered the oath to the accused, was competent to do so.
    APPEAL from the Twelfth Judicial District Court, parish of Avoyelles. Barbin, J.

      E. D. Hunter, District Attorney, for the State, Appellee.

      E. Joffrion, L. J. Bucoté and Albert Voorhies, for Defendant and Appellant:
    The information is defective as follows:
    First — It does not state before what court the perjury was committed.
    Second — It does not aver the administration of the oath, nor state by whom it was administered.
    Third — It does not aver that such court or person had competent authority to administer the oath.
    Fourth — It does not state the substance of the offense charged, as required under common law precedents, with the modifications of the law of Louisiana.
    Fifth — It has no averment to falsify the matter wherein the perjury is assigned.
    Sixth — It does not indicate the proceeding in which the oath was administered.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was prosecuted for perjury, tried, convicted and sentenced to five years imprisonment at hard labor in tHe State Penitentiary. From the rulings on the trial and the judgment thus rendered he has appealed/

By bill of exception and motion in arrest of judgment, he complains that the information is fatally defective in several particulars, which it is unnecessary to enumerate, but which will be considered.

The statute requires the setting forth of “ the substance of the offense, by what court, or before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with a proper averment to falsify the matter wherein the perjury is assigned.”- B. S. 858.

Perjury is a common law offense. The statute denounces the crime without defining it. All the common law requirements should have been followed. 9 An. 211; 5 An. 234; 20 An. 147; 26 An. 71.

In State vs. Cook, 20 An. 147, the Court said: “The English forms of indictment have been in use for many years; they have stood the test of time: they can hardly be bettered in respect to clearness,' fullness and succinctness, and it is'very desirable that prosecuting officers would observe them more strictly.”

In the case before the Court, the requirements of the statute touching essential averments should have been and were not .observed. The information does not state before what court the crime charged was committed, or by whom the oath was administered. It was necessary to have made those averments, and also that the officer who received the oath had competent authority to administer it. 29 An. 71, 147; 4 An. 324; 32 An. 428; Arehbold, Cr. Pr. vol. 3, 592,12, 593, 1, -15, 594.

The bill of exception was well taken, and the motion in arrest of judgment should have prevailed.

It is, therefore, ordered that the verdict of the jury be set aside, that the judgment and sentence be reversed and avoided, and that the case be remanded for further proceedings according to law, the defendant to remain in custQdy, subject to the orders of the lower court, for further prosecution according to law. 32 An. 576; 30 An. 817; 1028.


author: Poché, J.

text:
    No. 49.
    Walling Heirs vs. A. S. Morefield.
    A defective and insufficient; description of the property sold, in the sheriff's advertisement is cured by tbe prescription of five years as established by Art. 3543, O. C. Previous Decisions affirmed.
    The title of the insolvent is not divested by the cessio bonorum, and his heirs are not estopped from claiming the property surrendered, when it has not been disposed of by tbe syndic. 11 An. 158.
    The purchaser who knew the defect in the title of the property he purchased and. owing to such defect, got the property for much less than its value, cannot be considered as a purchaser in good faith, in the legal sense of the word, and is not protected by the prescription of ten years.
    The prescription of three years does not apply to the rents and revenues of property olaimed , in the petitory action, against a purchaser in bad faith.
    ABPEAL from the First Judicial District Court, .parish of Caddo. Taylor, J.

      J. W. Jones and A. B. Slattery for Plaintiffs and Appellees:
    There is but one question in this case, and that is the prescription of ten years. To support the prescription of ten years; tbe title to tbe immovable must be apparently good, and of a character to induce the belief on tbe part of the possessor that the title is perfect. A title defective on its face will not be sufficient; otherwise, where the defect proceeds from circumstances or evidence de hors the instrument.

      Where one assumes to sell without title, or without disclosing the defects in his title, the vendee, in good faith, though holding a non domino, may plead the prescription of ten years. Otherwise, where the vendor sells only his right or interest — shows what it is> and declines to warrant generally the title, thus bringing home to the vendee a knowledge of his title.
    A possessor in good faith is one who hás just reason to believe himself master of the thing he possesses, although he may not be in fact. In other words, the purchaser must have no reason to doubt that his title was good at the time of the purchase. If the purchaser has good reason to doubt the validity of the title at the time of the purchase, the purchaser is then a possessor in bad faith.

      Geo. Williamson, Land & Land, and H. H. Childers for Defendants and Appellants:
    Eirst — Where the description of the thing seized and sold at sheriff’s sale is insufficient to identify it, there is no'sale and no title passes. 26 An. 156; McDonough vs. G-ravier. 9 L. 542; McGary vs. Dunn, 1 An. 338 ,* Gales vs. Christy, 4 An. 293; 5 An. 133, 255; 7 An. 21, 296; 12 An, 251, 838.
    Second — Such a defect is radical, and not an informality prescribed by five years. C. C. 3543; 4 An. 249 ; 6 An. 407; 7 An. 113; 22 An. 492.
    Third — An insolvent and his heirs are bound by the insolvent’s oath to his schedule. Plaintiffs’ ancestor having made a surrender under the State insolvent laws and filed a sworn schedule of all his property, which did not include the lot in dispute, they are estopped from asserting the ownership of said insolvent. Pardo vs. Pardo, 26 An. 364. All the debtor’s rights and property pass to his creditors, whether placed on the schedule or not. He can neither sell nor mortgage the property, and loses the jus disponendi, which he cannot regain without the payment of his debts in full. See cases cited in brief.
    Eourth — Defendant had been in open, peaceable and public possession as owner, under a recorded title, for more than ten years before this suit was instituted. He had just reason to believe that he was deriving title from the true owner. Exclusion of warranty is not evidence of bad faith in the vendee. Templet vs. Baker, 12 An. 658. The prescription of ten years should have been sustained.
    Eifth — If the rents claimed in the petition are damages for trespass to real estate, the prescription of one year applies. 2 H. S. 24; 5 M. 257, 65. If said rents are the hire of an immovable, the prescription of three years applies. O. O. 3538; 24 An. 73; 33 An. 621.
   The opinion of the Court was delivered by

Poché, J.

This is a petitory action for the recovery of a town lot in the city of Shreveport.

Plaintiffs claim as the legal heirs of James Walling, who had purchased the property in 1843, at a sheriff’s sale in the suit of James Walling vs. T. T. Williamson.

Defendant claims title from T. T. Williamson by a sale through Williamson’s agent in 1870, and also pleads the prescription of ten years’ possession.

He also alleges the nullity of Walling’s purchase at the sheriff’s sale of J une 5,1843, on the ground of the vagueness and insufficiency of the description of the property seized, advertised and sold at the sheriff’s sale.

And he further defends that, by a surrender of his property, made by Walling under the insolvent laws of the State in 1852, he - divested himself of any title, if he had any, to the property in suit; and that his heirs are thereby estopped from setting up any title to the same. •

The judgment of the District Court was in favor of plaintiffs, recognizing their title to the property, allowing them rent for the same at the rate of five dollars a month from January 1st, 1871, until the property is delivered to them, subject to a credit of $324 for taxes.paid by defendant, whose right to sue for the value of the improvements made by him on the property was specially reserved.

Defendant appeals, and has filed in this Court the plea of prescription of one and three years in bar of plaintiff’s right to recover rent on the property.

1st. As to the insufficiency of the description of the property seized in the suit of Walling vs. Williamson, the record shows that, at the time of the seizure, Williamson was one of the seven original members of the Shreveport Town Company, owning the lands composing the site of the present city of Shreveport, which lands had been acquired from the United States by Larkin Edwards, whose title had been transferred to the Town Company, a corporation created under the laws of the State. In 1842, Walling obtained a judgment against Williamson on his confession, with a stay of execution until January, 1843.

In execution of that judgment, the sheriff seized “ T. T. Williamson’s undivided one-seventh of the town of Shreveport,” together with other property of the defendant in said town, and on June 5th, 1843, the undivided seventh of Williamson was adjudicated to Walling, whose title was subsequently recorded in the proper office. While this description is unquestionably vague and perhaps uncertain, we are not prepared to say that it was too vague as not to enable the property to be identified. A reference to the act of incorporation of the Shreveport Town Company, followed by an inspection of the conveyance office, showing what portion of its domain had been previously sold, and, therefore, what portion remained to the incorporators or their successors, would, in our opinion, have given a correct idea of the quantity, quality and value of the property seized. The interest of Williamson in the town, was undivided, and it is difficult for us to conceive how else it could have been more minutely described, without encumbering the proceedings and the advertisement. 11 An. 87; 12 An. 252.

But, conceding that the description was really insufficient for vagueness, and, therefore, defective, we think that su'ch a defect did not absolutely vitiate the sale, and that it was a defect which could be cured by the ratification of the seized debtor or of his legal representatives, and that, therefore, it was cured by the proscription of five years, provided for in Art. 3543 of our Civil Code, touching informalities connected with or growing out of any public sale made by any person authorized to sell at public auction.

These views are sustained by the decision of this Court in 14 An. 777 (Louaillier vs. Castille), where this prescription was held sufficient to cure a defect growing out of the insufficiency or entire want of advertisement, which is imperatively required by law in all public judicial sales. And our conclusion is yet more strongly confirmed by the decision of this Oourt, in the case of Fraser vs. Zylicz, 29 An. 535, where the same rule was applied to an irregularity or an alleged nullity growing out of a public sale of the property of a minor for less than its appraised value. 7 An. 113, Chambers vs. Wortham; 21 An. 584, Pasiance vs. Powell; 21 An. 673, Holt vs. Board of Liquidators.

We, therefore, hold that the title of the-property seized and sold did legally vest in Walling, who was placed in. possession of the same by operation of the law, as provided for in Art. 2479 of the Code. In a partition effected in May, 1843, between the members of the Shreveport Town Company, the lot of ground in litigation was allotted to T. T. Williamson.

2d. The argument of defendant that Walling was absolutely divested of his title to this property by his voluntary surrender to his creditors in 1852, finds no sanction either in reason, law or authority.

It has been frequently held, and we take it as the settled doctrine in our jurisprudence, that the surrender of an insolvent does not divest him of title to the property which he surrenders, but merely strips him of all power to control, alienate or dispose of the same during the administration of his estate. Fitzgerald vs. Philips, 4 M. 562; Rivas vs. Hunstock, 2 R. 187.

The record shows that Walling, in his schedule, while he did not specially describe this identical lot, stated that he intended to surrender “ all other property of which he has an interest, being and lying in said town of Shreveport.”

His deed in the sheriff’s sale having been put of record long previous to the date of his surrender, this property was, therefore, included in his surrender, and became subject to the control and administration of the syndic ; and such declaration on the part of Walling certainly exculpates him from any suspicion or imputation of fraud or fraudulent concealment of his property in his insolvency proceedings.

The record further shows that Walling died in 1859, and that the administration of his syndic terminated in 1867, when he was discharged, on presenting his final account which was not opposed. The record fails to show any act or complaint of the creditors or of any of them, touching the omission, refusal or neglect of the syndic to in-elude this property in his administration and in his sale of the effects of the insolvent.

Hence, we hold that, under this state of facts, the lot of ground reverted to the ownership and possession of Walling’s heirs, an'd that no act of their ancestor estops them from claiming this property, as no creditors of the deceased have ever asserted any claim against his succession. In the case of Perry vs. Municipality, 11 An. 158, presenting circumstances and issues strikingly similar to those now under consideration, the Court held that the heirs of the insolvent were not debarred from their right to claim the property of their ancestor, which had been surrendered by him to his creditors, and not disposed of by the syndic.

3d. On the plea of prescription of ten years’ possession urged by the defendant, the record shows that, as far back as 1860, the defendant and another person had taken joint and undivided possession of this lot of ground without title or legal authority; that after the withdrawal of his co-possessor, Morefield had continued his precarious possession alone for several years until his purchase from Williamson’s agent in 1870. The evidence also proves that Morefield knew of the titles of Walling to the property, that he urged Williamson’s agent to make him a sale of the property; that the agent, who was the son of Williamson, at first disclaimed any title to the land either in his father or in himself, but finally consented to sell to Morefield, without warranty such title as his father had to the property, after cautioning his vendor that he would have to take the chances of a lawsuit about his purchase; and that the land was sold for $300, a price much under the value of the property at the time.

These facts abundantly show that Morefield, who knew so well the defects of the titles which he acquired under that sale, was not a purchaser in good faith, and that he, therefore, lacks the most vital and essential element or ingredient required by law in the possession of ten years to sustain the prescription on which he relies. This proposition is elementary and textual, and needs no authority in support of its application in this case.

As a possessor in bad faith, Morefield is responsible for the rents and revenues of the property from the date of his possession under his purchase, and the right of the lawful owner in a petitory action to claim and recover the rents, cannot be barred by the prescription of either one or three years, which has been pleaded on appeal by defendant.

The prescription of three years which he invokes, applies to actions on contracts for rent or hire, but not to the obligation imposed by law on the possessor in bad faith to restore to the lawful owner all the revenues o£ his property of which he has been deprived during the possession of the defendant, whether the bad faith of the latter be moral,' or merely legal or constructive.

This principle has been recognized, reaffirmed and consecrated by an unbroken line of decisions from the earliest days of our jurisprudence down to the present time. Donaldson vs. Hull, 7 N. S. 112; Williams vs. Booker, 12 R. 256; Rhodes vs. Hooper, 6 An. 356; Lowry, Curator, vs. Erwin, 6 R. 211; Hill vs. Bowden, 3 An. 258; Walworth vs. Stevenson, 24 An. 253.

The judgment of the lower court, sustained.by the law and the evidence, is correct, and is, therefore, affirmed with costs.