author: Ludeling, C. J. Howe, J,

text:
    No. 209.
    Rogers & Woodall v. Jasper Gibbs.
    ■When a person not a party to a promissory note puts his name upon the hack of it ho hinds himself as surety, and as surety ho is hound in solido to the holder.
    Citation served upon one of several obligors in solido interrupts the current of prescription as to all the obligors. The plea of prescription can not therefore be maintained by one obligor in solido if service of citation has been made upon another obligor in solido before prescription has been acquired.
    APPEAL from the Eleventh Judicial District of Claiborne. J. F. Pierson, Judge ad hoe, in place of Fgan, Judge, recused.

      J. <& J. W. Young and L. B. Watlcins, for plaintiffs and appellants. Henry Gray, for defendant and appellee.
   Ludeling, C. J.

In March, 1860, J. J. Wilder & Co. executed two promissory notes, each for $4407 0.9, payable respectively in twenty-four and thirty-six months after date, to the order of Rogers & Woodall; and at the same time Rogers & Gibbs and J. Gibbs wrote their names on the back of said notes. Rogers & Woodall, the payees, have never indorsed the notes. Jasper Gibbs is now sued by the payees as surety. The defendant, without pleading to the merits, filed the plea of prescription against the notes. There was judgment in favor of the defendant, and the plaintiffs have appealed. The notes are prescribed unless there has been an interruption of the prescription by the citation served upon Hiram Gibbs, one of the firm of Rogers & Gibbs, on the fifth of February, 1867. And whether that citation interrupted the course of prescription as to Jasper Gibbs depends upon the character of the obligations which he and Rogers & Gibbs contracted by writing their names across the back of said notes. The defendant contends that he incurred the obligation of an indorser, while the plaintiffs insist that he is liable as a surety, and is solidarily bound with Rogers & Gibbs; and that the interruption of prescription as to one of several obligors in solido is an interruption as to all. More than a quarter of a century ago Chief Justice Eustis, as the organ of this court, said: “We consider that it is settled by the uniform jurisprudence of this State that when a person not a party to a note puts his name on the hack of it he is presumed to hind himself as surety.” McGuire v. Bosworth, 1 An. 248 ; Penny v. Parham, 1 An. 275 ; Story on Promissory Notes, § 133, 134. And the same doctrine is affirmed in 4 An. 273, 9 An. 533, 20 An. 348, 22 An. 41 ; see also Cooley v. Laurence, 4 M. 639 ; 3 N. S. 659, 10 La. 374, 14 La. 386, 4 R. 161, 2 An. 592. The; same doctrine is held in other States of the Union. In Tenny v. Prince, 4 Pickering 385, Chief Justice Parker said : The principle by which our decisions have been regulated, from the case of Joselyn v. Ames downward, is that when the indorsement is made at the time of making the note, the person indorsing the note is to be treated as an original promisor; and this because he is supposed to have parted with something valuable on the strength of the liability of the party who puts his name on the note; and as such party can not be answerable as an indorser, lie shall be answerable as an original promisor.” See also 11 Mass. 436, 3 Mass. 274, 12 Mass. 14, 4 Pick. 311, 22 Howard 341, Rey v. Simpson, Story on Promissory Notes, § 470.

Were they, as sureties, bound in solido, in the sense of article 2072 of the Civil Code ?

There is an obligation in soKdo on the part of. the debtors when they are all obliged to the same thing, so that each may be compelled for the whole thing, and when the payment which is' made by one of them exonerates the others toward the creditors.” C. C., art. 2091.

It is manifest in this case that each obligor was bound to discharge the whole debt due to the plaintiff, and that the payment by one would exonerate the others toward the creditors. It would seem, therefore, that the defendant comes clearly within the definition of a debtor in solido.

The defendant’s counsel have relied upon the cases of Jacobs v. Williams, 12 R. 184, and succession of Yoorhees, 21 An. 659, to show that the liability of the defendant is not that of a debtor in solido, and that the citation served on Rogers & Gibbs did not interrupt prescription as to Jasper Gibbs. In the case of Jacobs v. Williams it is decided that the maker and indorsers of a note are not debtors in solido in the sense and meaning of the Code; and that the payee, or whoever may have lent Ms name to the maker or drawer, could not be permitted to recover from either more than he had paid ; but that as to all other parties who come after the payee on the bill, the lex mereatoria was to apply and to govern their rights and obligations. In the case of Williams the suit was brought by Jacobs, the holder of a note drawn by James D. Spurlock to the order of Williams, and by Williams indorsed in blank — a totally different state of facts from those shown in this case.

In the case of succession of Yoorhees, 21 An. 660, what was said in regard to sureties not being bound m soKdo was an obiter dictum and not binding as authority. The question there was whether prescription of a bond had been interrupted by the acknowledgment of one who had bound himself to pay a debt in default of Yoorhees, and the proof was that more than five years had elapsed after the last acknowledgment of the debt by the guarantor or surety.

Nor is it logical to say that because article 3553 (3518) declares that “ a citation served on the principal debtor, or his acknowledgment, interrupts the prescription on the part of the surety,” therefore the acknowledgment of the surety does, not interrupt prescription as to the principal. There may be obligations where the sureties have lim-^ ited their liabilities and have not bound themselves in sólido; and the article above referred to would make the acknowledgment of the principal in such an obligation interrupt the prescription as to his sureties, although not bound in solido.

Toullier says : “ Cependant Part. 2021 du Code porte quo l’engagefnent de celui qui c’est, en qualité de caution, obligé solidairement . avec le débiteur,' se régle par les principes établis pour les dettes solidaires.” Yol., 6, No. 723, 753.

In giving his views,as to the reasons why the Roman law gave to the acknowledgment of one of several debtors in solido the effect of interrupting prescription as to the others, Toullier says: “ On la trouve dans la nature méme de Pobligation solidaire, et cette raison nous parait clairement indiqué© dans la loi méme, qui porte qu’il est équitable, hurnamm, que la reconnaissance ou Pinterruption d’une dette cróée par un seul et méme contrat, wno eod&mque contractu, oblige également tous les débiteurs a payer la dette parce qu’elle procede de la méme source.

En effet, lorsque plusieurs débiteurs s’obligent solidairement par un seul et méme contrat ¡tune seule et méme dette, ils se mettent par cela méme en société pour ce qui concerne cette dette, ils se chargent mutuellement par un mandat tacite, mais i éel, de payer les uns pour les autres. ou, comme porte la disposition finale de Particle 1216, ils sont cautions les uns des autres. Celui des débiteurs qui paie seul pour tous les autres agit done tant pour lui que pour chacun de ceux dont il paie la part. S’il reeonnait seul la dette, il la reconnaít' également, tant en son propre nom que dans celui de ces eodóbiteurs, en vertu de leur mandat tacite ; enfin, en agissant contre un seul, le eréancier agit contre le mandataire de tous, contre la caution de tous : Pinterruption doit done pToduire son effet contre tons.” Yol. 6, No. 729, p. 757.

Article 3045 (3014) C. C. declares: The obligation of the surety toward the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of bis engagement are to be regulated by the same principles which have been established for debtors m solido.” 4 An. 273.

The plea of prescription should have been overruled.

It is therefore ordered that the judgment of the court a qua be annulled, that the exception be overruled, and that the cause be remanded to be tried on the merits.

It is further ordered that the appellee pay costs of this appeal.

Howe, J,

concurring. I concur in the conclusion in this case, on the authority of McCauslaud v. Lyons, 4 An. 273. There may be some doubts as to the correctness of that decision on principle, but it has stood on the books unchallenged for many years, and there seems to be no sufficient reason tor disturbing it.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 308.
    Caroline Bryan, Wife, etc., v. C. K. Gillespie.
    Tho act creating tho parish of Roil River and attaching it to the Eleventh Judicial District became a law subsequent to the act creating the Eighteenth Judicial District, which prospectively included the parish of Red River in that district.
    Held — that the subsequent act creating the parish of Red River and attaching it to the Eleventh Judicial District showed that tho legislative intention was changed, and that the parish of Red River having been first prospectively attached to the Eighteenth Judicial District was afterwards attached to the Eleventh.
    from the District Court, parish of Red River. Levisee, J.

      Mam & Wimple, for jfiaintiff and appellant. A. B. George, for defendant.
   Howe, J.

The only question in this case is presented by an exception, and is whether the parish of Red River is attached by law to the Eleventh or to the Eighteenth Judicial District.

The aci establishing the Eighteenth Judicial District and assigning (in anticipation) the parish of Red River thereto, was approved and became a law February 27, 1871.

The act to form a new parish, to be called the parish of Red River, was approved and became a law on the second of March, 1871, and by this act it is provided that the parish shall form a part of the Eleventh District.

The evident'presumption from these facts is that the legislative intention was changed, and that after having just assigned the parish in advance to the Eighteenth District the lawmaker afterwards saw fit to attach it to the Eleventh.

Judgment affirmed.

Rehearing refused.


author: Wyiy, J.

text:
    No. 300.
    Surghnor & Mullin v. John A. Beauchamp—P. J. Larkin, Intervenor.

      A. conventional subrogation of a privilege given to secure tlie paymeni.of a draft must he made at the time it is paid. B. C. C. 2160.
    If a legal subrogation his taken place in. favor of the person who has paid the draft, and the drawer has deposited a lot of cotton with the drawee sufficient to pay a superior privilege claim for rent, then and in such case the proceeds of the cotton will be first imputed to the payment of the rent note, and the legal subrogee has not such a privilege on the crop as will entitle Mm to provisionally seize it.
    from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Stubbs <& Oobb, for plaintiffs. Newton <& Hall, for defendant and intervenor, appellants.
   Wyiy, J.

On the seventeenth of December, 1869, the defendant leased from Edward Nalle a plantation for the year 1870 for $1200, evidenced by a draft of the defendant on.the plaintiffs for $600, payable in sixty days, which was accepted, and by a note payable the fifteenth of November, 1870, for $600.

On the twenty-second of October, 1870, Nalle transferred the draft and note to plaintiffs and subrogated them to his privilege as lessor on the crop of the defendant.

The note was subsequently paid.

On the seventeenth of December, 1870, the plaintiffs brought this suit on the draft which they allege they paid at maturity, and alleging the lessor’s privilege to which they claim a conventional subrogation, they provisionally seized the crop on the leased premises. On the twenty~firs1¡ of December; 1870, Porter J. Larkin intervened, claiming to be a sub-lessee, and also the owner of the property seized. He denied that the plaintiffs have a privilege of any kind on the property, and denied that the defendant owed them anything' on account of said rent.

The defendant pleaded the general issue and averred that the draft sued on was paid.

The court gave judgment for the plaintiff for the amount claimed, and the defendant and intervenor have appealed.

It is very evident that the plaintiffs were not conventionally subrogated to the lessor’s privilege for the amount of the draft, because by their averment in the petition the draft was paid at maturity, which was the seventeenth of February, 1870. It was not till the twenty-second of October following that Nalle made the act of conventional subrogation. He could not, then, subrogate the plaintiffs to the draft which he did not own — they having paid it on the seventeenth of February previous. Revised Code 2160. But assuming, for argument, that the plaintiffs acquired a legal subrogation when they paid the draft in February, 1870, we do not find that they have a privilege on ¡the crop and have the right to provisionally seize it, because, it appears that in April, 1870, the plaintiffs received from the defendant the proceeds of eleven bales of cotton, to wit, $797 75. They say they applied it as a credit to an account which they had against the defendant.

We find the draft for rent, which is the basis of this action, charged as an item in that account. It was the most onerous debt, and to it the law imputed the payment. Revised Code 2166.

Besides, the testimony in the record satisfies us that the proceeds of this cotton were turned over to the plaintiff’s for the purpose of paying the draft for rent.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that plaintiffs demand be rejected with costs of both courts.


author: Wyly, J.

text:
    No. 368.
    James F. Houston, Administrator, v. W. Childers et als.
    An exception to the capacity of the plaintiff to stand in judgment should not be permitted to be filed alter the general issue has been pleaded, because the general issue admits the capacity of the plaintiff. 21 An. 188.
    Property of a succession under administration can not be seized and sold under a judgment against the deceased owner. A sale of property or lands thus situated under a writ of fieri facias issued from the district court is an absolute nullity, and the purchaser is responsible to the succession for rents from the date of the notice oí seizure, but the claim for rent is prescribed by three years.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Watkins, J.

      J. JD. Watkins and Griffin & Snider, for paintiff and appellee. Bichará, W. Turner, for deiendants and appellants.
   Wyly, J.

In 1865 W. Childers bought the land described in the petition at sheriff’s sale under his judgment against Elizabeth Houston, for the price of $2000.

The plaintiff, the administrator of the succession of the said Elizabeth Houston, sues to annul the said sale and to recover the property, with rents, on the ground that it was an absolute nullity, because Elizabeth Houston was then dead, and her property could not be sold under a writ of fi. fa. He also alleges the iormalities of law were not complied with in said intended sale.

The deiendants plead the general issue and aver the validity of their title. But if it should be held to be invalid, they pray for the return of the $2000, the price of adjudication, before a writ of possession issues against them for the land. In reconvention to the claim for rent, they pray for $3000, the value of the improvements placed on the land by them. They also plead the prescription of one, two and three years.

The defendants subsequently excepted to the capacity of the-plaintiff.

The court decreed the nullity of the sale of the fifth of November, 1865, and ordered the land to be restored to the succession represented by the plaintiff. The reconventional demand was rejected; there was judgment for the plaintiff for rent at the rate of $800 per annum from sixteenth February, 1868, until first January, 1871, and thereafter at the rate of $200 per annum. From this judgment the defendants appeal.

As to the exception to the capacity of the plaintiff to stand in judgment for the succession of Elizabeth Houston, we think the court did not err in refusing to allow it to be filed. The general issue already pleaded admitted the capacity of the plaintiff. See Silvernagle & Co. v. J. A. Fluker, 21 An. 188 ; see also 17 An. 277 ; 19 L. 429 ; 14 An. 657 ; 11 An. 688 ; 6 An. 97 ; 10 An. 140 ; 11 R. 7 ; 6 R. 484 ; 12 L. 618.

The sale of the property belonging to the succession of Elizabeth Houston, under the judgment of W. Childers, against her was a nullity. The district court had no jurisdiction to issue a writ of fi. fa. against property belonging to a succession under administration.

“ Courts of probate have exclusive power— * * * *

“ Fifth — To grant orders, to make inventories and sale of the property of successions which are administered by curators or testamentary executors, or in which the heir prays for the benefit of inventory.” C.P. 924.
“All debts in money which are due from successions administered by curators appointed by courts and by testamentary executors shall he liquidated and their payment enforced by the court of probate of the place where the succession was opened.” C. P. 983.

The defendant Childers has no right to claim the restoration of the price of adjudication, because the property was sold to him under his judgment, and he doubtless retained the price, or at most he paid it to the sheriff, who returned it to him, as he was bound to do under the writ.

A judgment creditor has no right to seize under fi. fa. succession property, buy it himself, and then demand of the administrator the restoration of the amount bid before the property shall be returned to the estate. The probate court has the right to distribute the funds of a succession according to the rank and privilege of creditors. »No creditor can by the illegal use of the writ of fi. fa. gain an advantage in the collection of his claim. He can not by it acquire possession .of' succession property and then refuse to surrender it to the administrator till his debt, or part thereof, is paid.

The judge did not err in holding that the prescription of three years is applicable to the claim for rent ; that the rent prior to three years-from the suit is barred. But he erred in fixing the date of the suit from the day the petition was filed; it was only from the service of citation on W. Childers, to wit, ninth March, 1871.

The plaintiff may therefore recover rent from ninth March, 1868, at the rate of $800 per annum (the value thereof proved) till first January, 1871.

The value of the rent since the first of January, 1871, is not proved; .and the judge erred in allowing judgment therefor at the rate of $200 per annum.

It is therefore ordered that the judgment appealed from be amended by striking out that part for rent, and in lieu thereof let the plaintiff recover of the defendant rent at the rate of $800 per annum from ninth day of March, 1868, till first day of January, 1871, As thus amended ■let the judgment be affirmed.

It is further ordered that the appellees pay costs of appeal.


author: Howell, J.

text:
    No. 311.
    State of Louisiana v. Samuel Kuhn.
    In a prosecution for retailing spirituous liquore without a license it is sufficient if» the indictment charges the person with retailing spirituous liquors without first obtaining a license therefor, without specifying the person to whom it was sold, or the quantity sold.
    Where authority has been given to the parish by the Legislature to impose a license upon, persons who are engaged in retailing spirituous liquors, the indictment for retailing spirituous liquors without first obtaining a license therefor, need not show affirmatively that the parish had the right to impose such license.
    from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      W. W. Farmer, District Attorney, for the State. W. J. Q. Balccr and B. G. Cobb, for defendant and appellant.
   Howell, J.

The defendant having been found guilty of retailing spirituous liquors without previously obtaining a license, has appealed from a judgment sentencing him to pay a fine of three hundred and five dollars. Before trial he moved to quash the indictment, on the following grounds:

First — That the indictment is insufficient in law and defective in this, that the charge is too general, and does not specify the person to whom the sale was made; it does not specify the quantity sold; it .does not negative the fact that the accused had a license to sell.

^eeond — The indictment is insufficient in this, that it does not state ■or allege that the quantity sold was less than one quart; it does not specify the quantity sold or retailed, nor does it state the minimum that may be sold without license; nor doos it state that the quantity .retailed was not a part of a larger quantity.

Third — The indictment does not state affirmatively tha/fc the parish ■of Ouachita had,the right, or authority, or ability to issue licenses on .the first day of February, 1872.

The indictment is based on the'following law :

•“ Sec. 910. Whoever shall keep a grog or tippling shop, or retail spirituous liquors without previously obtaining a license from the police jury, town or city authorities, ón conviction shall be fined not less than one hundred dollars nor more than five hundred dollars; and in default of payment, shall be imprison ed not less than fifteen days nor more than four months.” R. S. of 1870.

The indictment is in the following words:

“That Samuel Kuhn, etc., did retail spirituous liquors without then .and there previously obtaining a license therefor from the police jury •of the parish of Ouachita, and without then and there previously obtaining a license therefor from any town or city authorities, contrary to the form of the statute,” etc.

I. and II. These grounds of the motion present but one point — the failure to allege the facts which constitute the offense charged. It is contended by the appellant’s counsel that the word “retail,” as used in the law, has a technical and descriptive signification, and it is necessary that the indictment should contain the elements of the offense; that is, what particular quantity is established as retail, or less than which is retail, and to sell which a license must be previously obtained, and specify the person to whom such sale is made.

We do not concur in this view. The offense is a statutory one — the retailing of spirituous liquors without first procuring a license — and the indictment following the words of the statute is sufficient. We deem it unnecessary for the indictment to give the definition of the word retail, or specify what constitutes retailing, under the provisions of the law, as distinct from selling at wholesale or otherwise. It is the pursuing of the particular kind of business without a license that is made an offense, and not the selling of a particular quantity of spirituous liquors on a particular day to a particular person. The accused is notified of the charge that on a certain day he did retail spirituous .liquors without first procuring the license required by law; that is, that on that day he was pursuing the business without license.

III. “ The indictment does not show affirmatively that the parish of Ouachita had the right, or authority, or ability to issue licenses on the first day of February, 1872.”

We are unable to perceive the legal force of this ground. The ■.authority in this respect had been conferred by the Legislature, and whether the parish had or had not submitted the question of license or •no license to the voters can have no effect to relieve the defendant from the obligation of procuring a license and the liability to prosecution.for not obtaining it. If the question had been submitted to the voters and decided in the negative, the defendant would be guilty of the offense announced in section 910, if he were to pursue the business of retailing spirituous liquors without license. Being unable to legally obtain a license, he would violate the law which made a license necessary under a penalty. If tlie question had been decided in the affirmative, he would equally be bound to procure a license before he could commence the business; and so if the question had not been submitted to the voters. In any and every contingency the defendant must first procure the license from the police jury before he can retail spirituous liquors, otherwise he will be obnoxious to the penalty presented in section 910, above quoted.

The bill of exceptions to the refusal of the District Judge to charge the\jury that section 23 of act No. 42 of 1871; section No. 1, clause No. 10, of act No. 14 of 1872, and section No. 1, clause No. 9, of act No. 17 of 1872, are in force, and to his refusal to read to the jury act 23, R. C. C., was not well taken. Those laws have no relation to the subject in this prosecution. The said acts relate to the revenue of the State, and not to the subject of section 910 R. S. under which this prosecution is had, and do not impliedly repeal the latter, under act 23 of the Code.

Judgment affirmed.

Rehearing refused.-


author: Taliaferro, J.

text:
    No. 280.
    Henry Burns v. Thomas Naughton.
    An appeal will not be dismissed because a copy of the petition of appeal lias been sent up with the record in place of the original. ,
    A third holder of a mortgage note under indorsement must show an authentic transfer before he can legally obtain an order of seizure and sale of the property mortgaged.
    from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison & Farmer, for plaintiff and appellee. J. & 8. F. MeFnery and Stubbs S'Gobb, for defendant and appellant.
   Taliaferro, J.

The defendant appeals from an order of seizure and sale rendered by the Judge of the Fourteenth Judicial .District decreeing the sale of certain mortgaged property belonging to the defendant. The ground upon which the appeal is predicated is, that authentic evidence was not produced before the judge to establish the transfer to the plaintiff of the note upon which the mortgage is alleged to be founded. There is a motion to dismiss the appeal for the reason that a copy of the petition of appeal was sent up iu the transcript, the appellee contending that the original act should have accompanied the record, and refers to several articles of the Code of Practice to sustain this position.

There is no more reason why the written act constituting the petition of appeal and filed as an original act should appear in propria forma before the appellate court instead of a duly certified copy of it, than that the original petition in a suit, or any other original paper of a suit, should be transmitted instead of a certified copy of such original. The terms used in the articles of the Code of Practice to which we are referred, might perhaps authorize the transmission of the original petition of appeal with the transcript; but that it is imperatively required that it should be so transmitted we do not admit. The purpose of 'the lawmaker, we conclude, would in this regard be as substantially complied with by the transmission in the record of a duly authenticated copy of the petition of appeal as by the transmission of the original act itself.

The motion to dismiss is overruled.

On the Merits.

The plaintiff is third holder of the note upon which the mortgage he seeks to enforce is founded. He alleges that he holds the note under the blank indorsement of the -payee. There is no authentic evidence of the transfer shown. This was necessary in the proceeding via execntiva which the plaintiff has chosen to adopt. 6 An 477, 9 An. 310, 11 An. 4, ibid 35, 19 An. 141. The order was therefore improperly rendered.

It is therefore ordered, adjudged and decreed that the order of seizure and sale rendered in this case be annulled and set aside.

It is further ordered that this case, be dismissed as of non-suit, the plaintiff and appellee paying costs in both courts.


author: Ludeling, C. J.

text:
    No. 332.
    Graham & Anderson v. John Hendricks, Sr.—Kendall & Wright, Intervenors.
    If an appellant dies after tlie appeal has been granted, but before the bond baa been given and filed in the court below, then only the legal representatives oí the deceased can execute the appeal bond. An appeal bond given by the agent after the decease of the principal is void, because the agency ceases at his death.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      Land d Taylor, for plaintiff. JR. J. Looney, for defendants.
   Ludeling, C. J.

The plaintiffs in this case have moved to dismiss the appeal on the grounds that the defendant died before filing the appeal bond in the district court, and there is no administrator appointed to represent the succession and no acceptance thereof hy the heirs.

The appeal has never been taken until the bond has been filed; there is no appeal in this case; the agency of fhe attorney to act in the case ceased at the death of the defendant, and there being no representative of the succession authorized to act, the filing of the bond was unauthorized, and appeal is iuclioate only.

It is therefore ordered that the case he stricken from the docket of this court.


text:
    No. 325.
    Mrs. Julia Dull v. Wm. R. Gordon.
    If a note lias been offered in evidence by the defendant to show its payment, and hag been rejected on the ground tb$t it is not sufficiently proved, then parol evidence is admissible as the next best evidence to prove that it has been paid.
    Parties holding an obligation, who have received payments thereon in confederate notes and given credit therefor, are bound by their acts, notwithstanding such notes are not a legal tender in payment of debts. The settled doctrine iir all such cases is, that the courts will leave the parties where their conduct has placed them.
    from the Fourteenth Judicial District Court, parish of Ouachita. Hay, J.

      Mm-rison & Farmer, for plaintiff and appellee. Stubbs & Oobb, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sued the defendant for $2573, with legal interest since the twenty-ninth of August,' 1864, when, it is alleged, he used two notes belonging to plaintiff amounting to that sum, in the purchase of a tract of land for himself. She annexed to her petition the receipt of Gordon, which, however, she avers does not express her understanding of the agreement about the notes. She admits that Gordon has jiaid small sums to her at different times, but she avers she does not remember the amounts.

The defense is that he bought the notes and agreed to pay the price in the manner stated in the receipt annexed to the petition, and that he has extinguished the obligation by payments, as per statement annexed to the answer. This statement showed that at various times defendant paid at her request sums of money and bills for merchandise and groceries for her.

There was judgment in favor of the plaintiff, and the defendant has appealed.

On the trial the defendant offered in evidence, the following receipt:

“Received of W. R. Gordon, Millliaven, March 19, 1864, five hundred dollars, toward paying for two mortgage notes on John Mallory, the balance to be paid whenever I call for it. JULIA DULL.”

To the reception whereof the plaintiff excepted on the grounds that it was not sufficiently proven, and was not stamped as required by the revenue acts of the United States.

These objections were overruled, and we think córrectly.

Mr. Gordon testified as follows:

“I handed her the money with the receipt written. She went into the house with the receipt and the money, and returned it, filie receipt, to me signed.”

If the document was inadmissible as a receipt for money, it was admissible as a memorandum or letter to show how she construed the receipt given by Gordon to her for the notes, or her agreement relative to the notes. The defendant then offered in evidence a note in favor of Dr. Bloxom, signed Julia Dull, to prove an item in the statement annexed to his answer — that is, that he had paid the note to Bloxom at her request.

This was objected to on the grounds that the note was not proven and it was not stamped. These objections were sustained by the court a qua, and then the defendant offered to prove by parol that he had paid the amount of said note to Dr. Bloxom at the request of the plaintiff. This was objected to on the ground that if the defendant had paid any note for her, the note itself was the best evidence. This objection was overruled and the plaintiff took a bill of exceptions.

Having objected to the reception of the note paid, it is difficult to conceive how it could consistently be objected that parol testimony should be rejected as not the best evidence of the fact of payment of the note. It is unimportant whether the note to Bloxom ever had any legal existence or not — if Gordon paid an amount of money to Dr. Bloxom for Mrs. Dull at her request — those facts may be proved by parol.

The receipt annexed to the petition is in the words and figures following, to wit:

“Received, Millhaven, nineteenth March, 1864, of Mrs. Julia Dull two mortgage notes against John Mallory, and made payable to his own order in favor of or belonging to Mrs. Julia Dull, for which I am to pay her over the money in small amounts as she may call for it, until the amount of the notes is paid up. The notes are given for one thousand dollars each; one is due first January, 1864, and one first January, 1865.
(Signed) “ W. R. GORDON.”

This receipt bears the same date as the receipt given by the plaintiff, acknowledging the receipt of five hundred dollars from "W. R. Gordon, already referred to; and it was several months before the defendant used the said notes in the purchase from Mallory. It may ibe well here to remark that the two notes received from the plaintiff ' were for the two last installments of the price of a tract of land sold to John Mallory ; that Gordon had acquired the other two from Colonel. Morrison, and used the four notes in payment of the price of the land which Mallory had bought, and upon which there existed a special mortgage to secure their payment. The evidence convinces us that. the defendant purchased the notes of plaintiff and obligated himself to pay the principal and interest thereof in the manner stated in the two receipts — that is, as the plaintiff might call for the price. And the various credits claimed and pro.ved by the defendant must be regarded as payments made under this obligation, and, pro tanto, as an execution of the contract.

It appears that the five hundred dollars paid on the nineteenth of' March, 1864, was in confederate treasury notes, and it is also probable that the item of seventy dollars was paid in confederate notes ; and it is urged that because these payments were made in that currency we can not allow them as credits. When payment of an obligation has been received by the obligee in confederate treasury notes, the courts will not interfere; to the extent of the payment it is an executed contract. 19 An. 473.

Allowing the credits claimed, except the item for house rent in 1867, one hundred and twenty dollars, which we think should not be allowed, and computing- interest on the notes at the rate of eight per cent, per annum, to the niueteenth of March, 1864, the date of the sale, and thereafter at the rate of five per cent, per annum interest, and imputing the payments first to the extinguishment of interests, we find that the defendant was indebted to the plaintiff in the sum of five hundred and ninety-three dollars and eighty-six cents, with five per cent, per annum interest thereon from the thirty-first December, A. D. 1869.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the plaintiff against the defendant for five hundred and ninety-three dollars and eighty-six cents, with five per cent, per annum interest thereon from the thirty-first December, 1869, till paid, and costs of the lower court.

It is further ordered that the appellee pay costs of this appeal.


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    No. 335.
    W. M. Griffin v. J. A. Haynes.
    A cleric or boolceeper employed in. a store "by the year who has been discharged before the term of his employment has expired, for good and sufficient cause, can only recover wages up to the time of his discharge.
    from the Eighteenth Judicial District Court, parish of Bossier. Watlcins. J.

      Griffin & Snider, for plaintiff and appellee. J. I). Wathims, for defendant and appellant.
   This ease was tried by a jury in the court below.

Howell, J.

Plaintiff claims $675, with legal interest from fifteenth February, 1870, amount of a note, $120, with legal interest from first January, 1871, for three months wages, at $40 per month, as clerk up to said date, and $600, with same interest from judicial demand for one year’s salary at $50 per mouth as clerk from the first January, 1871, defendant having, it is alleged, discharged him on first March, 1871, without sufficient cause or any serious grounds of complaint. Defendant admits the claim for $675 and that for services as clerk at $40 per month for three 'months ending thirty-first December, 1870, except for one-half month lost time, which claims he says are subject to compensation or set-off; denies owing any thing for 1871; avers an agreement for said year with plaintiff as clerk and bookeeper by the month only, and his discharge about first March, 1871, for sufficient cause, which he then first learned, to wit, unfaithfulness and incompetency, and claims in compensation and reconvention balances due oh two notes of' plaintiff amount of an account against plaintiff and $500 damages.

The case was tried before a jury, and on their verdict a judgment was rendered in favor of plaintiff for $1395, and in favor of defendant for $718 09£, leaving a balance in favor of plaintiff of $676 901, from which defendant has appealed. "

The principal controversy is in regard to the claim for wages for the whole of the year 1871. The evidence satisfies us that the engagement was for the year, and the question is as to the sufficiency of the cause for the discharge. Had defendant any serious ground of complaint against plaintiff when he sent him away ? R. C. C. 2749.

It seems that defendant was satisfied with plaintiff as bookeeper and clerk until about the end of February, 1871, when by accident he learned that an article of merchandise had been sold by plaintiff on a credit, but no entry made of it in the books. This led to an examination of the books, and defendant discovered a want of correspondence in some of the entries in the different books, many erasures in the day book and blotter, and a discrepancy in the cash on hand and the amount entered in the cash book. Plaintiff was thereupon called on to explain the cash discrepancy, and lie asked until the next day to examine the books and make the corrections. This was refused, and defendant took possession of the books, and the discharge of the plaintiff followed.

In our opinion these circumstances authorized the discharge, unless plaintiff satisfactorily explained them to defendant, which he failed to do. His reason for not having charged the item which led to an examination on the part of defendant was not a good one, and this, in connection with the condition of the books, was well calculated to impair defendant’s confidence in him as a competent and reliable bookkeeper and clerk. The condition of the books and accounts shows that plaintiff is incompetent or careless, and either is a serious ground of complaint on the part of a merchant. It is important that the confidence of a merchant in his employe should be maintained.

The discharge therefore was warranted by the facts and law.

The evidence shows that plaintiff is entitled on his demands to the sum of $895 at the date of his discharge, and that defendant has valid claims against him amounting to $552 25, leaving a balance in favor pf the former of $342 75.

It is therefore ordered that the judgment appealed from and the verdict of the jury be set aside, and that there be judgment on the principal and reconventional demands in favor of plaintiff for $342 75, with legal interest from first February, 1871, and costs in the lower court; costs of appeal to be paid by the plaintiff.


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    No. 331.
    Eliza W. Wooley v. E. K. Russ et al.
    The sale by authority of the probate court of real estate extinguishes the mortgages upon it prior to the sale and transfers them to the proceeds, and a purchaser has the legal right to restrain by injunction the further pursuit of the lands by the mortgage creditors. A sale oí this kind can only be attacked by direct action.
    from the Tenth Judicial District Court, parish of BossierWatláns, J..

      liobert J. Looney, for plaintiff and appellant. J. JD~ WatJcins, for defendants and appellees.
   Taliaferro, J.

This case was before us at the last term at this-place, and was then remanded for a new trial. See 23 An., p. 580.

Carroll, Hoy & Co., creditors of Samuel Harrison, deceased, who-was the husband of the plaintiff, proceeded via exeeuliva to seize certain lands specially mortgaged to them by Harrison shortly before his death in 1865, to secure the payment of his debt to them, amounting to near nine thousand dollars, for which he gave his note payable three years after date, with interest. This seizure was enjoined by MrsWooley, the plaintiff, on several grounds, among them that the succession of Samuel Harrison had been administered and finally settled that the land belonging to it had been sold at probate sale, and that she had become the owner of it; that the mortgage of Carroll, Hoy & Co. had been extinguished by the sale, and that there were no proceeds-to be applied to their debt, the funds having been exhausted by prior privileges and mortgages.

To this injunction suit the seizing creditors were-not made parties, and had no notice of the proceeding. The injunction was perpetuated and on appeal the case, as already stated, was remanded. Thereupon Carroll, Hoy & Co. filed an answer and changed the form of their-action to that of via ordinaria, and assuming the position of plaintiffs in reconvention prayed judgment against Mrs. Wooley for one-half the debt and against the two minor heirs of Harrison for the other half, with right of mortgage. The answer sets up by numerous allegations the illegal management of the succession by the plaintiff, the withholding by her from the estate of a large sum of money — the proceedsol one hundred and twenty-six bales of cotton ;.the appropriation to her own use the revenues of a ferry amounting to one thousand or fifteen hundred dollars per annum for the years 1865 and 1866, without accounting to the estate for the same; that she used the lands of the community for years without accounting for the rent. They charge that the plaintiff in injunction never legally administered the estate, and that she accepted the community and is bound for its debts.

Upon the offer of the defendants to introduce evidence to show that plaintiff had concealed and failed to account for money and property belonging to the succession, the plaintiff objected on the ground

First — That such facts, if proved, would be no justification to the defendants in seizing property to which they had no mortgage or claim.

Second — Plaintiff having shown her title to the property in dispute her final account and discharge as administratrix of the same can not be attacked collaterally.

Third■ — That all the orders of sale and judgments rendered in regard to the proceedings during the administration of the estate were rendered by a probate court having jurisdiction, and that they can not be attacked in the district court except for causes of absolute nullity, and none are alleged.

The testimony was admitted and the plaintiff reserved a bill of exceptions. To this the judge a quo appended his reasons.

That the objection seemed to apply rather to the sufficiency of the proof — proof which might be considered cumulative.

The evidence was upon trial considered, but in no way affected the judgment rendered. It was based solely on the plaintiff’s acceptance by purchasing property of the succession at a probate sale, she being forbidden to make such purchase when administratrix, except she be partner in community.

There was judgment rendered in favor of Carroll, Hoy & Co. dissolving the injunction and decreeing that Mrs. E. Wooley pay them one-half tiie amount claimed by them, with recognition of mortgage on certain lands specified in the judgment, and rendered judgment of non-suit against the defendants on their demand against the minors. From this judgment the plaintiff in injunction has appealed.

The judgment is clearly erroneous. The plaintiff being surviving partner in community had the right to purchase at the sale of the succession. Revised Statutes, section 12; 21 An. 38.

We think the objections should have been overruled. The proceedings in the settlement of the estate seem to have been regularly conducted. A tableau and classification of debts was filed in November, 1866, and homologated in February following by order of the proper court. Upon this tableau Carroll, Hoy & Co. were placed as mortgage creditors for eight thousand five hundred and ninety-one dollars, with interest, from November, 1865. By the tableau other creditors by privilege and mortgage, having superior rank, were put down, and whose claims, it appears, absorbed the funds realized by sale of the property. In March, 1869, the plaintiff filed her final account, which was duly published and homologated, and as administratrix was finally discharged. No opposition seems to have been made by Carroll, Hoy & Co. either to the rank and classification of the debts orto the final account. These proceedings can not, in the form of action adopted by the defendants in injunction, be attacked.

They charge bad faith in the administratrix, but we do not see that they have been successful in establishing it. The large sum of money received by her husband in Shreveport for a lot of cotton shortly before his death is not shown to have made a part of his succession, and that it came into the hands of the plaintiff as administratrix. We think the defendants have shown nothing entitling them to relief.

It is therefore ordered that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the injunction b'e perpetuated, and that the defendants’ claim in reconvention be rejected; that there be judgment in favor of the plaintiff, the defendants paying costs in both courts.


author: Ho'we, J.

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    No. 287.
    Ball, Lyons & Co. v. R. B. Lignoski.
    XJie remedy by attachment is stricti juris, and when invoiced to restrain the debtor from selling liis property to the detriment of the creditor, proof of a specific act of immorality Will not bo received to impeach the credibility of the defendant as a witness on the motion to dissolve.
    from the’ Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison & Farmer, for plaintiffs and appellants. B. G. Oobb, for defendant and appéllee.
   Ho'we, J.

An attachment was issued in this case against property of defendant on the ground that he was about to convert his property into money or evidences of debt, with intent to place it beyond the ' reach of his creditors. Rev. C. P., article 240, par. 5.

A motion to dissolve was made by defendant on various grounds. It is urged by plaintiffs’ counsel in their elaborate and able argument that the grounds urged do not put at issue the intent of defendant thus to place his property beyond the reach of his creditors. Perhaps a very refined construction might support this yiew, but the motion was evidently tried in the court below on this issue, and a mass of evidence was received withoht objection, all tending to elucidate this question and no other, namely, whether the defendant was, at the time of the attachment, really about to convert his property into money or evidences of debt with intent to place it beyond the reach of Iris creditors.

The judge a quo decided this question in the negative, and dissolved the attachment, and plaintiffs on this branch of the case appealed.

We are not prepared to say that the judge a quo erred in his decision. In the first place it must be remembered that he saw and heard the witnesses, and so far as there may be any conflict his decision must have great weight and- ought not to be reversed unless manifestly erroneous. Again, the affidavit of one of the plaintiffs, though prima fable evidence of the existence of the facts therein recited, and therefore authorizing the issuing of the writ and throwing the onus on the defendant of disproving it in a motion to dissolve, was yet made in New Orleans where the affiant resides, and is evidently not made from any personal knowledge on his part. It is not unfair to presume that he ' made the affidavit as a formal accusation on information and belief, and it follows that whatever prima facie effect it might have could be easily rebutted by defendant, and the onus shifted on plaintiffs to make good a charge affecting the defendant’s integrity as a merchant.

It is hardly necessary to remark that the fact that the defendant once dealt or was suspected to have dealt in counterfeit money can have no effect on the decision of this motion to dissolve. The remedy by attachment is stricti juris, and especially when issued for the cause set forth in this case, in derogation of the right of disposition of property by its owner', and in opposition to the general interests of commerce.

Proof of a specific act of immorality would not even be received to impeach the credibility of the defendant as a witness on the motion, much less should it be permitted to influence the court upon the question as to whether the grounds of attachment wore sufficient.

Judgment affirmed.

Rehearing refused.


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    No. 307.
    Succession of E. S. Virgin—Final account of Rosenfield, Curator—Opposition of E. M. Wilson, Tutor.
    A married woman whose husband is still living is prohibited from contracting a second marriage with another man, and if the man who contracts the second marriage with her has knowledge of the first marriage and that the first husband is still alive, then the ■ second marriage is a nullity, and the children born of such marriage are illegitimate and can not inherit from either party.
    from the Parish Court, parish of Franklin. Van Thomas, Parish Judge.

      W. W. Campbell, for administrator, appellant. Morse & Crawford, for opponents.
   Ludeling, C. J.

This is an appeal from a judgment sustaining the tutor’s opposition to the curator’s account, and recognizing the minor’s right to one thousand dollars, under the act of seventeenth of March, 1852.

The question presented for decision is, whether or not the minors are the legitimate children of the deceased ? _ The evidence shows that their parents went from Louisiana to Arkansas to get married j that they immediately afterwards returned to Louisiana, where they resided until both died. That Mrs. Virgin, at the time of her marriage with E. S. Virgin, had a living husband, and that E. S. Virgin knew this fact. The second marriage was therefore a nullity. Art. 93 C. C.

And neither one of the parties being in good faith, the marriage produced no civil effects in favor of the children born of the marriage. C. C. Art. 118, 198.

It is therefore ordered aud adjudged that the judgment of the lower court be annulled, that the tutor’s opposition be dismissed, and that the account of the curator be homologated. It is further ordered that the appellant pay the costs of appeal.

On Application nor Rehearing.

In this case our attention having been called to the fact that the appellant was decreed to pay the costs when the judgment appealed from was reversed, we do now order the decree to be amended so as to make appellee pay the costs according to law.


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    No. 290.
    Succession of J. D. and E. C. Bailey.
    Questions of faot not passed upon in the lower court cannot be reviewedou appeal, but if suoh questions appear to be material to a correct decision, then the case will be remanded.
    A married woman who resides in Texas may prosecute an appeal from a judgment rendered against her in tlie courts of Louisiana, and the prosecution of the appealineludes the right on her part to give an appeal bond.
    from the Parish Court, parish of Franklin. Van Thomas, Parish Judge.

      J. & S. 1>. McEnery, for appellants. Morrison & Farmer, for appellee.
   Howell, J.

This is a devolutive appeal taken by three heirs in their own right, and by one alleging himself the tutor of the sole heir of a fourth, from a judgment homologating the final account of the administrator of these two successions, it being alleged in the petition of appeal that a fifth heir had died and the petitioners were his sole heirs; further, that one of the appellants is a married woman residing in Texas with her husband, who aids and assists her herein ; and further, that the administrator has died, leaving two children by a first marriage and a widow and two children by a second, who are cited.

A motion is made to dismiss the appeal upon several alleged grounds, which amount to a want of proper parties and a sufficient bond. The death of the two heirs, alleged to have died, and the heirship of the appellants are denied in this motion. These are facts which we can not determine, as they have not been passed on by the lower court, and we have no original jurisdiction ,of them. It is therefore necessary to remand the case for the purpose of settling them contradictorily between the proper parties. As to the necessity of citing the various creditors, alleged to have been paid, we deem it unnecessary in this case. The account does not propose to distribute any thing among them. It simply gives the administrator credit for the amounts paid by him, without mentioning the names of the creditors. If he has paid improperly he may be held responsible, but no judgment could be rendered on this appeal against the said creditors for the amounts paid them, or any part thereof, and hence they are not interested in maintaining the judgment appealed from.

■ As to the representatives of the administrator, it is only necessary to remark that if all of them are not mentioned in the petition, or are not named in their proper capacities, it is incumbent on the appellees to specify the omission or error, it being a matter within their knowledge.

As to the authority of the married woman residing in Texas to appeal and give bond, we think the order of the judge a quo sufficient in this case. Article 132 R. C. C. sanctions such order in the absence of the husband. A non-resident is within its purview, and the authority to prosecute the appeal includes the giving of the bond.

It is therefore ordered that this cause be remande 1 to the lower court to try the questions as to the alleged deaths of two heirs and the heirship of the appellants, and to be otherwise proceeded with according to law, without prejudice to the right of appeal.


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    No. 370.
    S. Russ, Tutor, v. L. H. Woodham.
    In this caso tlio tutor caused a partition to be made among the heirs under an order of court, and took the receipt of the agent of the deceased for the minor’s interest in a commercial partnership as a final settlement thereof. A succeeding tutor to the minor brought suit for a settlement of the partnership, alleging that the settlement with the tutrix was only provisional. There was no judgment homologating the first partition with the tutrix.
    Held — That the plea of res judicata was not good, as there was no judgment homologating the partition, and that the .plaintiff therefore had the right to show that the settlement was not complete, or that it was erroneous.
    from the Tenth Judicial District Court, parish of De Soto. Levisee, J.

      J£lam <& Weiwplc and Nutt & Leonard, for plaintiff and appe.lant. Scales & Buttock, S. L. Taylor and J. S. Ashton, for defendant.
   This case was tried by a jury in the court below.

Howell, J.

In January, 1859, L. H. Woodham and H. L. N. Williams formed a commercial partnership in Mansfield, to continue for three years, Williams putting in $6925 and Woodham $2000 as capital. In June, 1861, Williams entered the army of the Confederate States, leaving Woodham in charge of the business. In August, 1862, Woodham entered the same army, leaving one L. Phillips in charge as «gent. In July, 1863, Williams was killed, leaving a widow and a minor child. The stock of goods and the collections as made were invested by Woodham and Phillips in cotton in various portions of the neighborhood. On the return of Woodham at the close of the war in 1865, he set about getting the cotton together, and out of some two hundred bales, secured one hundred and sixty-one, which he sold in that year for $14,635 78 in gold, and made collections to the amount of $1800 in currency, with which he settled up the debts of the partnership, amounting together with interest to $25,377, at an average of forty cents on the dollar. In April, 1868, the widow applied to the' court for a family meeting to advise as to her suing Woodham for a. partition of the partnership assets. The family meeting assembled and advised the bringing of the suit, and in May the tutrix instituted the suit for partition, and upon the order of the court it was made before the parish recorder, and the receipt of the tutrix, dated May 26, 1868, given to Woodham for the portion allotted to the minor, consisting of $3508 in gold coin and a lot of notes and accounts appraised at $46 89, as “,the full and entire share of said minor in said partnership assets,” and .a final settlement thereof. The tutrix and under tutor expressed themselves at the time-satisfied with the statements made then by Woodham of the partnership accounts and affairs, and taken 'as the basis of the partition. In February, 1871, the present tutor of the minor instituted this suit tor a settlement of the partnership, admitting that the tutrix received under said partition one-half said cash and credits, which had been turned over to him by her; but alleging that the partition was.only provisional, because not preceded by a settlement of the individual accounts of the"members, each neingentitled before partition to withdraw the amount of capital put in, or the proportion according to the state of the individual accounts, the-amount coming to the minor at the time being greater than the cash received, and charging the defendant with permitting the credits to become worthless or pre-preseribed and failing to account for all the proceeds of the cotton and profits realized, and praying that defendant be ordered to render a full account, that the partition be declared provisional, or if no preceding settlement be necessary to its validity,, then that it be set aside for error, and lhat defendant pay $20,000 to-the minor as heir of her deceased father.

The defendant pleaded res judicata, and answered that the said settlement and partition were final and satisfactory, averring that the sums recovered by the parties respectively and the amount due him as special compensation for services for attending to and liquidating the partnership affairs, made the shares in the assets equal. A verdict and judgment were given for defendant, and plaintiff appealed.

The plea of res judicata is not good, as there was no judgment homologating the partition, if the proceeding be considered a judicial partition as contemplated by the Code ,• and plaintiff has the right to show that the settlement was not complete, or is erroneous.

There is no evidence that the defendant mismanaged the partnership affairs or failed to account for all the assets. On the contrary, we think the above narrative shows that he was faithful, 'and to a great extent successful in preserving the interests of the partnership. He probably did not keep as accurate an account, of each transaction as prudence might dictate; but in the partition or settlement a liberal spirit was mutually exhibited; and the only practical question really presented in this record is, were the shares of the partners in the assets equal at the date of the settlement in May, 1868 1 The defendant says they were, because the sums drawn respectively by the partners or their representatives up to that time, and the compensation due him for special services when adjusted, made them equal. He does not give the exact amounts drawn by the parties; but it seems that in order to-make the shares equal by this computation, his special compensation is estimated at $2500. The evidence does hot, however, make it justly more than $1300. There is error, therefore, to the amount of $1200 (the difference) to the prejudice of the minor, for which she should have judgment.

It is therefore ordered that the judgment and verdict herein be set aside, and that plaintiff, as tutor of the minor Rosa A. Williams, recover of the defendant twelve hundred dollars in full settlement of the partnership between the defendant and H. L. N. Williams, deceased, and costs.


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    No. 312.
    John G. W. Lewis v. B. H. Dinkgrave, Sheriff, and others.
    A person holding or claiming apiece of real property nnder a simulated title can not maintain an injunction against the sale thereof by judgment creditors of his vendors.
    from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Garrett <& Garrett, for plaintiff and appellant» Morrison & Farmer, for defendants and appellees.
   Wyly, J.

The plaintiff, claiming to be the owner, enjoins the sale of the property described in the petition, being a storehouse and a lot of ground in the town of Trenton, and also a stock of goods, seized as the property of J. H. Tatum, by his judgment creditors.

He alleges he bought this property from Tatum on third day of December, 1870, for $18,000, evidenced by his three promissory notes. The defendants plead the simulation of the sale from Tatum to the plaintiff.

The court gave judgment for the defendants’ and the plaintiff appeals. We see no error in the judgment.

From the evidence in the record we are satisfied that the sale from Tatum to the plaintiff was a mere simulation. •

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


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    No. 319.
    Succession of John Liles, Sr.—Final Account of C. H. Morrison, Executor—Opposition of J. H. Mitchell, Dative Testamentary Executor
    ‘If the evidence shows that loss has occurred to the succession by the gross carelessness of the executor, and that hia administration, instead of being beneficial, has been injurious to the succession, the executor will not be allowed commissions. 4 An. 578.
    To entitle the surviving widow to the one thousand dollars under the homestead act, it must be shown affirmatively that she is in necessitous circumstances.
    Suits brought by attorneys before the death of the client may be prosecuted by the same attorneys after his death, notwithstanding one of the attorneys may become his executor, and all the privileges accorded by law on judgment obtained or property seized as security for the attorneys’ fees will attach in favor of such attorneys.
    .An executor who is a professional man is not permitted tó charge for legal services which he has rendered the estate while under administration.
    from the Parish Court, parish of Ouachita. Robert J. Caldwell, Parish Judge.

      O. 71. Morrison (in person), plaintiff and •appellant. IP. J. Q. Balcer, for opponent and appellee.
   Ludeling, C. J.

This appeal is taken by C. H. Morrison from a judgment on the final account by him rendered under the decree of this ■court in the case of John C. Rogers v. C. H. Morrison, executor.

The appellee has asked for an amendment of the judgment in three particulars, by disallowing — first, the two and a half per cent, on the •amount of the inventory claimed as commissions due the executor; secondly, the credit claimed for $805 alleged to have been paid to Mrs. Liles under the homestead act of 1852; and, thirdly, the amount of $575 claimed by Morrison & Parmer for fees.

It is admitted that there is an error of calculation in the statement •of the accountant of one hundred dollars against himself, and it is evident that the judge a quo fell into an error when he added to the ■debit side of the account the items, amounting to $381 73, claimed as ■credits, but disallowed by the judge. The contest thus seems to be narrowed down to the questions presented .by the answer of the appellee to this appeal.

First — Is the accountant entitled to the two and a half per cent, ■commissions allowed by law for administering estates?

The accountant avers in his brief that uIn this opposition there is no malfeasance alleged or shown. Had there been, and the acts of malfeasance set forth, accountant would have been allowed to and would have shown that his administration had been successful and to the best interest of the estate.”

The opposition to this item is in the following words : “ The credit claimed — amount of my commissions as executor being two and a half per cent, on amount accounted for, to wit, $27,404 53, on page seven, .amounting to $685, is opposed; first, because the said Morrison having been removed from his office of executor for malfeasance is not entitled to any commissions,” etc.

And the accountant further says: “The judgment in the Rogers case •decrees no such penalty or forfeiture, and this court can not amend •that judgment.” The question about the fees of the executor was not before the court in that case, but the question of malfeasance was, and the court held that the executor was “ at least so grossly careless” that his removal from office was decreed. And the court further said: We think it established by the record that the Home place really •contained about five hundred and ninety acres, and that its sale for five thousand two hundred and fifty dollars, if maintained, would result in a great loss to the estate.” 21 An. 457. In the 23 An. 630 it was held that this sale was valid on the ground that Levi, who bought, was in .good faith.

It is manifest, therefore, that loss to the estate has resulted “atleast from the gross carelessness ” of the executor. In the succession of Lee it was held that “ when an administration, instead of being beneficial, has been injurious to a succession, the administrator will not be allowed commissions.” 4 An. 578.

This is in consonance with equity and the textual provisions of the ■Civil Code. “ The attorney is responsible not only for unfaithfulness in his management, but also for his fault or neglect. Nevertheless, the responsibility with respect to faults is enforced less rigorously against the mandatory acting gratuitously than against him who receives a reward.” Article 3003 (2972.)

Second — The next item opposed is the claim allowed to the widow under the homestead act. There is no evidence that she was in necessitous circumstances at the death of Liles. The evidence, on the ■contrary, shows that Mrs. Liles bought the “ Reuben Frantom ” tract of land for $3251, and that the price was paid. The executor paid this amount without an order of court, and he has failed to prove that it was a just claim against the estate. The credit claimed for this amount must therefore be rejected.

Third — The item for $575 is claimed for fees due Morrison & Farmer for professional services rendered to the deceased and. the succession after his death. They claim that there exists a privilege in theirfavor for this sum. The facts in regard to the litigation in which the fees are charged are substantially these: During the lifetime of Liles he employed Morrison & Farmer to collect a claim for rent against M. C. Hardy, amounting to about $1900, with interest. The movable property of the lessee was sequestered in that suit to secure the lessor’s privilege. Several other creditors of Hardy, all claiming privileges against the property of Hardy, sequestered as aforesaid, also filed suits against .Hardy and intervened in the suit of Liles v. Hardy. After considerable litigation eight hundred and fifty-seven dollars were realized after the death of Liles on his claim for rent against Hardy. The judge a quo allowed $200 as a fee with a privilege upon the fund realized under the , judgment, and the balance of the fee as an ordinary claim. We think two hundred dollars a full fee for prosecuting the claim of Liles and asserting the lessor’s privilege on the property sequestered, and that the attorneys had a privilege on the fund realized under the judgment to Secure their fees. And we are further of opinion that the fact that Morrison afterward became executor of John Liles, Sr., did not prevent the firm, of which he was a member, from prosecuting suits instituted by them before the death of Liles.

As to the charge for services in the case of Dowdy v. Morrison, executor, which was a suit for fifteen hundred and 'sixty-four dollars, it appears that Morrison & Parmer filed an answer and the plea of prescription, and that the case is yet untried. This item and the other fees charged in favor of Morrison & Parmer are resisted on the ground that Morrison, being executor, could not charge for professional services rendered to the estate. As to Morrison, this position is unquestionably correct. In the case of the succession of Key, the following language is used : “In the case of Baldwin’s executor v. Carleton, 15 La. 397, the court virtually adopted the English rule that an executor, who is also a professional man, and renders legal services to the estate he administers, is not entitled to any separate compensation.” The reason of the rule is that the best counsel should be selected and employed on the best terms. Judge Martin, in delivering the opinion of the court, remarked that it was the duty of the executor to make such selection; “but it was his interest in this case that he should be employed at all events, and as his conduct has shown, on the very highest terms. In our opinion he succumbed to the temptation.” 5 An. 567 ; 15 La. 399.

There is no evidence in this record to show what services, if any, were performed by Mr. Farmer; or, in other words, to show whether Morrison or Parmer rendered the services charged for, and this constitutes the single difference between the case of the Succession of Key and the one now under consideration. In that case it was shown affirmatively that Haskell, the curator, had performed the services for which fees were claimed for the firm of Simon & Haskell. On the authority of the cases of Baldwin’s executor v. Carleton and the succession of Allen J. Key, above referred to, and which we approve, we think the fees to Morrison & Parmer for services rendered in matters arising subsequent to the death of Liles, should be disallowed. By correcting the error of calculation made by the executor against himself, and deducting the following sums from the credits claimed, to wit, $685 11 commissions, $805 paid Mrs. Liles, and $375 attorneys’ fees, which are disallowed, we find that the accountant- owes fourteen hundred and ninety-eight dollars and five cents, with five per cent, perannum interest from this date. C. P. 1007.

It.is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of J. H. Mitchell, dative testamentary executor of John Liles, Sr., against Charles H. Morrison for fourteen hundred and ninety-eight dollars and five cents, with five per centum per annum interest thereon from this day, and costs of appeal; and that the account rendered be in other respects homologated.

On Application for Rehearing.

The counsel for the appellee in this case consented that we might correct any errors in our former judgment without delay or a new trial. We proceed to do so now.

We erred.iu stating that the item of the account for amount paid to the widow Mrs. Liles was opposed in the opposition to the account.

We were led into the error by the answer of the appellee praying for an amendment in this particular, by the brief of the appellee, and by the silence of' the defendant on that point. The proees verbal of the sale of the property of the succession shows that the property was sold to Mrs. Liles; but as this item was not specially opposed, we erred in making any change in the account as to that item.

It is therefore ordered and adjudged that our former decree be so amended as to reduce the judgment against Charles II. Morrison to the sum of six hundred and ninety-three dollars and five cents, for which judgment should originally have been rendered, and for which judgment is now rendered.


author: Howe, J. Howell, J,

text:
    No. 367.
    State of Louisiana v. Simon Phelps and Charles Brown.
    Au indictment for the crime of murder is sufficiently explicit to aitvise the accused of the charge against him if it charges “ then and there did feloniously kill, slay and murder,” without containing the words “withmalice aforethought.”
    from the Eighteenth Judicial District Court, parish of Bossier. Watkins, J.

      L, B. Watkins, District Attorney, for the State. Bichará W. Turner, for defendants and appellants.
   Howe, J.

The defendants having been indicted for murder, found guilty without capital punishment and sentenced accordingly, have appealed.

The only question raised is in regard to the sufficiency of the indictment. It alleges “that on the first day of November, one thousand eight hundred and seventy, and at and in the said parish of Bossier, one Simon Phelps and one Curry Moss and one Charles Brown, all late of the said parish of Bossier, laborers, then and there did willfully, maliciously and feloniously kill, slay and murder one Julius Williams, in the peace of the State then and there being, contrary to the statute of the State of Louisiana in such case made and provided, and against-the peace and dignity of the same.”

The only objection made is that the indictment does not contain the-words “ of their malice aforethought,” or “with malice aforethought,” which it is urged are indispensable, and the case of State v. Ileas, 10' An. 195, and section 1048 of the Revised Statutes of 1870, are relied upon in support of this position.

It is the duty of courts of justice to maintain with care those safeguards of the law in criminal matters which are intended, not for the escape of the guilty, but for the protection of the presumably innocent. And if the words whose absence is here complained of were in any reasonable sense necessary to advise the defendants of the charge against them, and enable them to prepare for their defense or hereafter to plead the proceedings in bar of another prosecution, we should not hesitate to reverse the judgment. But we are constrained to think that the words “ with malice aforethought,” when used in connection with and in addition to the word “ murder,” are not only one of those-unnecessary prolixities whose use is dispensed with by the statute of 1805 (R. S. 1870, section —), but one of those tautologies which are no more requisite in an indictment than they are pardonable in a literary essay. We need in criminal matters the “justice, mercy and truth’ of the common law, and not its “mint, anise and cummin.” There is no more need that the State of Louisiana should make vain repetitions in her pleadings than there is that her Christians should make them in their prayers.

The word “ murder,” used as a verb, implies, of necessity, the idea of malice aforethought. State v. Forney, 24 An. 191. When, therefore, the accused in this case were told that they had on a certain day killed and murdered a certain man in the peace of the State, they were distinctly informed that they had “killed a reasonable being in the peace of the State, with malice aforethought, either express or implied.” In other words, they were accused of murder, with particularity as to place, time, animus and victim. We must decline to follow the decision in State v. Heas.

Nor do we think the statute quoted militates against the view we have felt constrained to take, Ic declares that it shall be sufficient in an indictment for murder to charge that “ the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased.” But it does not declare that phraseology less' tautological should be insufficient.

Judgment affirmed.

Howell, J,

dissenting. I think the case of the State «. Heas, 10 An. 195, enunciates the true doctrine on the subject under consideration, and for the reasons therein given I must dissent in this case.


text:
    No. 362.
    William L. Cushing v. G. W. Robinson, A. L. Gervin and J. H. Beaird.
    The act of the General Assembly creating the new parish of Red River and attaching it to ' another judicial district repealed the former act which rendered its territory subject to< #tke jurisdiction of the Eighteenth Judicial District, and judgments rendered by the judge of this judicial district, after the passage of this act, are void for want of jurisdiction over the parish.
    from the Eighteenth Judicial District Court, parish of Red River. Watkins, J.

      land <& Taylor, for plaintiff and appellee. Scales <& JBulloek and IT. A. Berryman, for defendants and appellants.
   Wyly, J.

The first question to determine in this case is the exception to the capacity oí the judge of the Eighteenth Judicial District to-, hold court iu the parish of Red River and to try this cause.

The act of the twenty-seventh of February, 187], establishing the jurisdiction of the Eighteenth District Court, includes in the district the parish of Red River. This parish was not created till the second day of March, 1871, and the law creating it declares that “ said' parish shall form part of the Eleventh Judicial District.”

This is the law applicable to the case, and whatever is in the previous-statute of the twenty-seventh of February, 1871, contradictory therewith, must be considered repealed.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that this case be dismissed, with costs.

Rehearing refused.


text:
    No. 336.
    Carroll, Hoy & Co. v. Eliza W. Wooley.
    A judgment debtor who seeks to annul a judgment homologating a final account of the administratrix on the ground of fraud must, in order to maintain his action, show the* fraud.
    Irom the Parish Court, parish of Bossier. L. W. Baker, Parish Judge,

      looney & Ashton, for plaintiffs and appellants. J. Z>. Watkins, for defendant and appellee.
   Ludeling, C. J.

This is an action to annul a judgment homologating a final account made by the defendant as administratrix of the succession of Samuel Harrison, on the grounds of fraud, error and want of notice to the creditors.

The plaintiffs have failed to make out their case; In-the case of Wooley v. Russ, sheriff et al., which was a suit between the same parties who now contest in this cause, the same questions were substantially presented, though in another form of action. In that case we said: “ They charge bad faith in the administratrix, but we do not see that they have been successful in establishing it. The-large sum of money received by her husband in Shreveport lor a lot of cotton, shortly before his death, is not shown to have made a part of his succession, and that it came into the hands of the plaintiff as administratrix.” And the failure to account for this sum of money is the principal ground upon which the charge of fraud is based. ' We see no error in the judgment appealed from.

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


author: Howell, J. Howe, J.

text:
    No. 349.
    J. W. Boswell v. Succession of R. R. Roby, deceased.
    Any acknowledgmoafc or agreement equivalent to an acknowledgment of a dokfc by a.person wlio is dead at the time it is sought to be established, must be proved by written evidence.
    from the. Tenth Judicial District Court, parish of Bossier. WatJdns, J.

      JEgcm, Williamson & Wise, for plaintiff and appellee. Griffin & Snider, for defendant and appellant.
   Howell, J.

This suit is brought on the following note:

“ $2465 22. By the first day of January, 1860, I promise 'to pay John W. Boswell the sum of two thousand four hundred and sixty-five dollars and twenty-two cents, for value received.
(Signed) “R. R. ROBY.”
“ December 17, 1858.”

The defense is a general denial and the prescription of three, five and ten years. To show a suspension of prescription the plaintiff offered a written receipt of plaintiff of the same date of the above note, and the depositions of three witnesses, to prove that the note sued on should not be exigible until another described in the said receipt, and made by one John T. Howard in favor of R. R. Roby, the deceased, should prove to be uncollectable, and that the latter note was really a collateral to secure the payment of the one sued on. To these depositions the counsel for the succession objected on the grounds:

First — “ Because it was an effort to prove by parol a different and distinct contract from the one sued upon, and was an effort to contradict and vary by parol the written contract sued upon — the contract sued upon being absolute, and the one sought to be established by the evidence offered being a conditional contract.”

Seeond — “Because it is an effort to prove by parol evidence an acknowledgment or promise of a party deceased to pay a debt in ofder to take such debt out of prescription and to revive the same after prescription had been completed.”

These objections were sustained, but “ the evidence offered was admitted, with the restriction that it was to be considered only in so far as it might tend to prove in the possession of plaintiff collaterals for the security of defendant’s debt, as a means of establishing thereby the suspension of prescription in the interim.”

Under this ruling all parol evidence tending to change or vary the contract sued on, or to show a verbal agreement different from that reduced to writing by the parties, was excluded, and we think correctly; and with the restriction under which it was admitted the evidence does not establish a suspension of prescription as held by the judge a quo.

The receipt is in the following words:

Received of R. R. Roby his note for two thousand four hundred and sixty-five dollars and twenty-two cents, due on the first day of January, 1860, which note is in my hands as collateral security for a note of the same amount on John T. Howard, due at the same time said note on Howard, dated October 9, 1858.
(Signed) "JOHN W. BOSWELL.”
"December 17, 1858.”

This receipt declares that the note of Roby, now in suit, was taken as collateral security for the Howard note, and as long as it might have been kept in vigor in the possession of the creditor it would operate a suspension of the prescription of the Howard note; but its possession, as it was held, did not interrupt or suspend its own prescription. The plaintiff did not object or reserve a bill to the limitation put upon the admission and consideration of the evidence ; and giving the only legal effect it can thus have, it does not prove a suspension of prescription as to the note in suit by the possession by plaintiff as collateral security. For to show that the Howard note was held as security there must be evidence of a different agreement from that declared in the receipt, and the only evidence on that point was excluded bj the judge a quo. But if it be conceded that the ruling of the judge be viewed as admitting the said depositions to prove an original acknowledgment or agreement at the date of the transaction — the effect of which is to suspend prescription — -then we must hold it obnoxious to the second ground of objection. Any acknowledgment or agreement equivalent to an acknowledgment of a debt by a person who is dead at the time it is sought to be established must, under the law, be proved by written evidence.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both courts.

Howe, J.

I concur in the decree in this case for the reason lastly given in the opinion of the court. A continuous acknowledgment by a deceased person of a debt can not be proved by parol.

Rehearing refused.