author: Tom), J.

text:
    No. 8479.
    Leon Godchaux vs. Succession of Eloi Dicharry.
    It is only where privileges or prior special mortgages are recorded against an estate that the purchaser can retain in his hands the portion of the price necessary to discharge said prior special mortgage or privilege.
    The purchaser in this case had no right, under a prior general mortgage, to retain a portion of the purchase price to satisfy it; his remedy was to claim the proceeds in the sheriff’s hands, by third opposition, or subsequently to bring an hypothecary action.
    "What the respective rights of the parties may be, we in no wise determine.
    APPEAL from the Twenty-second Judicial District Court, Parish of Ascension, Gheevers, J.

      Frederick Duffel and Jnlien A. Seghers, for Plaintiff and Appellee:
    At a sheriff’s sale made at the instance of a special mortgage creditor, the purchaser must pay the amount of his bid into the hands of the sheriff, at the time of sale, even if he he himself a judicial mortgage creditor, or the property will be resold. C. P. 689.
    If said purchaser has any claim or is entitled to be paid by preference over the seizing creditor, he can exercise his rights only on the proceeds of sale, in the manner provided by law and contradictorily with the sheriff and seizing creditor. 1 A. 365.
    The character of an action is determined by the prayer, and the issues are to ho restricted to the points raised by the original pleadings.

      Büwarcl Ah Pugh, for Defendants and Appellants:
    1. Wlioro mortgage property is sold at tlie instance of a special mortgage creditor, a previous •judicial mortgage creditor is entitled to bo paid by preference out of the proceeds, unless the seizing creditor prove that the defendant has other property of sufficient value to satisfy the claim of the prior judicial mortgage. 5 A. 73G; 7 A. 344 ; 21 A. 244; G. P. 301, 403.
    2. Litigants must be held olosoly to tlieir pleadings, and courts will decide the issues as made by pleadings.

    3. Where succession property is seised via ejecutiva, the same rule applies as to the distribu* tion of proceeds as in ordinary oases. The administrator must iutorvene in the suit if ho has any claim for the succession against the proceeds. 12 A. 592 j 30 A, 325 j 31 A. 453; 1 A. 20G; 22 A. 267.
   The opinion of tlie Court was delivered by

Tom), J.

Tlie plaintiff caused to be sold, under executory process, a sugar plantation belonging to the succession of Eloi Dicharry, deceased, on which he had a mortgage.

The adjudícateos of the property at the sheriff’s sale refused to pay the amount of their bid to the sheriff. The plaintiff thereupon took a rule on them and the sheriff, to compel them to pay over the same to the sheriff, and in the event of their refusing or failing to do so, to cause the sheriff to re-offer the property for sale.

The purchasers at the sale, after excepting to the form of the proceeding, answered, and alleged that they liad the right to retain in their hands the amount of the adjudication, by reason of their having a judicial mortgage on the property, older and outranking the plaintiff’s mortgage, and that there was no other property on which their mortgage operated, out of which it could be satisfied.

From a judgment making- the rule absolute, the defendants in the rule have ai>pealod.

The exception to the form of the proceeding seems to be abandoned in tlie argument before tliis Court, and it is not necessary to con aider it.

If, as contended by plaintiff’s counsel, the issue presented by the pleadings is simply whether a purchaser at a sheriff’s sale, made in foreclosure of a special mortgage, has a right to retain in his 'lands the price of the adjudication, by virtue of having a prior judicial mortgage on the property, though it is the only property subject to his mortgage, the question is of easy solution.

The Code of Practice prescribes rules on the subject free from all ambiguity. Thus, Article 679 provides, in substance: That when there exists on the property to he sold, a mortgage or privilege, the sheriff gives notice that it is sold subject to such mortgage or privilege, with the condition that tlie purchaser shall only be required to pay over the portion of the price which may exceed the amount of the privileges and special mortgages.

And, by the. same Article, and Arts. 683 and 706, the amount of such privileges and special mortgages that are preferred to the seizing creditors, may be retained by the purchaser.

The express affirmation of the right of the purchaser at a judicial sale to retain the amount of the privileges and special mortgages on the property purchased, contained in these Articles, negatives the right to retain the amount of prior general mortgages. Such was the construction placed upon them in the case of Alford vs. Montego, 28 A. 593, in which it was said:

“It appears that the. plaintiff’s mortgage is a judicial mortgage, and if the defendant’s mortgage was not superior in rank, the plaintiff’s remedy was to claim the proceeds by third opposition, or subsequently by hypothecary action. It is only where there exists privileges or special mortgages, which are preferred to the judgment creditor, that the purchaser shall retain the portion of the price necessary to discharge said prior special mortgages and privileges.”

True, Article 710 of the C. P. authorizes the purchaser to retain the price, where there exists a general mortgage on the property, when a suit has been commenced against him “ to make him quit the property,’5 or he has reason to fear that such step will be taken, unless the seizing creditor shall relieve him of his disturbance, or give him proper security against it. ■ It is, however, inapplicable to this case, because there is no suit for eviction pending against the adjudicatees, and there could be no apprehension of one, inasmuch as they are themselves the holders of the alleged general or judicial mortgage, and could not sue themselves, and could not well exact security against an action which could only be instituted under their judicial mortgage against themselves. Besides, the Article seems to contemplate that the purchasers of the property are in possession under their purchase. Article 401, C. P., affords a plain remedy for such a. case, by third opposition.

The counsel for the defendants in the rule, however, insist that whatever may be the rights of the plaintiff under the law, that he, himself, by his pleading, has confined the issue solely to the question of the rank and date of their respective mortgages, and has invoked the determination of this issue, in this proceeding, as decisive of the rights of the parties, involving, on the one hand, the right of the plaintiff to receive the money from the sale, and on the other, their right to withhold it from him, and apply it to the satisfaction of their claim.

We do not thus construe the pleadings.

It certainly must, be presumed that a mortgage creditor who takes out executory process against the mortgaged property and causes its sale, does so for the purpose of making his money, and if the purchaser of the property fails to pay the price of the adjudication, and the creditor resorts to proceedings against him, it is tobe presumed that he does so to consummate the purpose of the first jiroceeding, and to compel the payment of the price, or in default thereof, to secure a re-offering of the property. This is his legal right, and he cannot reasonably be held to have abandoned it and raise an issue which might postpone the accomplishment of the end in view indefinitely, unless the language of his pleadings or rule will bear no other construction.

It is true that in the rule taken, the plaintiff recites his special mort'gage on the property, and asserts his right to receive the proceeds of the sale over all other persons, but he alleges that the sheriff, though several days had elapsed since the sale, had not paid the plaintiff the amount at which the property had been adjudicated, or any part thereof, though not enjoined from so doing ; and the remedy he invokes in his prayer to the rule is to require the adjudieatees to pay into the hands of the sheriff the price of the adjudication to the amount of his special mortgage “ by preference over any other mortgages that may exist on the property,” and in default thereof, that the sheriff be ordered to re-advertise and re-offer the property for sale. It may be that some of the allegations of this motion were not necessary to the assertion of the right in question, but they were germane to the subject, and used principally by way of recital, and cannot justly be viewed as waiving or impairing the right which he distinctly claims, of compelling the purchasers to pay over the amount of their bid to the sheriff, and the latter to pay it to them, or failing to do so, to resell the property. Besides, it cannot be reasonably held that any language in the rule was designed to provoke a contest over the proceeds of a sale, when there were really no proceeds to make a contest over; for until the price is paid into the hands of the sheriff, there is no sale and can be no proceeds thereof.

We have not intended, in anything said herein, to express an opinion as to the respective rights of the parties to this controversy, under their several claims on the property, as set forth in the pleadings, but only that the defendants in the rule canuot- raise au issue as to these rights by keeping the money, which is the real subjectmatter, the very substance of these conflicting claims.

To be heard respecting their demands, they must resort to the proper remedy.

And we have also left out of view the fact that this property, the entire proceeds of which the defendants in the rule lay claim to, is succession property under administration, and constitutes the entire succession. This fact, to say the least, is notvrell calculated to strengthen their position, since it involves the proposition that a judgment creditor, under Ms judicial mortgage, can absorb' an entire succession, without taking any step to provoke a sale of the property, by simply buying in the property, when sold at the suit of another, and retaining the price, take possession and compel all persons, if any, holding superior privileges, to sue him to enforce their rights.

We think the judgment appealed from is correct, and it is, therefore, affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8339.
    Succession of Jean Longuefosse.
    The mere fact of temporary absence from tbe State of the surviving wife or heirs of the deceased, gives the Public Administrator no right to administer his succession.
    They were in the present case seasonably represented.
    APPEAL from the Civil District Court for the Parish of Orleans. Lanar us, J., in place of Houston, J., absent.

      Albert Voorhies, for Heirs, Appellees :
    1. The Public Administrator, under Acts of 1870, No. 87, and of 1877, No. 74, can be appointed administrator of a succession only in specified contingencies.
    2. He cannot be appointed wben tbe widow in community is represented by an agent and also by counsel of record.
    3. A temporary absence of the widow in community on a visit, does not justify his appointment.
    4. The tutor of the minor heir of the deceased as such, administers; and, if an administrator be needed, then this tutor, and not tbe Public Administrator, is entitled to the appointment. Succession Dietrich, 32 A. 128.
    5. There are no debts iu this succession; the minor heir, represented by bis tutor, does not need the services of the Public Administrator.

      Breaux & Hall, for Public Administrator, Appellant:
    The Public Administrator is chai god with the duty and, therefore, entitled to the administration of all espites here the widow and heir are absent, and not represented in the State; it makes no distinction between those permanently absent and others Acts 1870, Sec. 3, p. 130; Acts 1877, p. 111.
    The action of the Court must be governed by the facts ex:sting atthe'time for the necessity of the appointment and at the time of the appointment; and subsequent events cannot affect the propriety of that action. Succession of Bronson, 11 A. 25; Succession of Nicholson, 5 A. 359.
    Both the widow and heir are admitted to have been absent in Europe from the death until after the judgment complained of; and the record shows that the absence was, as late as August, declared to be indefinite, and that the parties were not represented in the State.
   Tbe opinion of tbe Court was delivered by

Todd, J.

P. S. Wiltz, Public Administrator for the Parish of Orleans, appeals from a judgment rejecting his application to be appointed administrator of tbe succession of Jean Longuefosse.

Longuefosse died in tlie City of New Orleans, whei’e, at tlie time of Iiis death, he had his domicil. He left a widow and minor child, who were then temporarily absent on a visit to their relatives in France. Immediately after his death, tlie maternal uncle of the minor, caused an inventory to be made of tbe succession, and asked that the surviving widow of the deceased be confirmed as natural tutrix, and an under tutor be appointed.

The Public Administrator then made his application to be appointed administrator of the succession. This was opposed, first by Pierre Puissegur, the uncle of the minor mentioned, and subsequently by the widow of the deceased, who prayed for her confirmation as natural tutrix. She was still absent when her opposition was filed, but she alleged her residence in New Orleans, and that her absence therefrom was but temporary, and that there were no debts owing by the succession. She subsequently returned to the City with her minor child, but died after the judgment was rendered sustaining her opposition and confirming her as natural tutrix. After her death Puissegur was appointed tutor to the minor, and has appeared in this Court and asked that the judgment of the lower court he affirmed.

There is no error in that judgment.

Longuefosse, at the time of his death, as stated, had his domicil in the City of New Orleans. This was, therefore, the domicil of his widow and minor child. Their temporary absence did not deprive them of any legal rights as relates to the succession of the deceased, and conferred no right on the Public Administrator touching the administration of that succession.

They were, constructively, present in the State, and were seasonably represented therein. It is not the mere temporary absence of the surviving wife or heirs of the deceased that gives to the Public Administrator the right to administer his succession. The heir in this case, through his tutor, was entitled to he put in the immediate possession of tbe estate of her father.

Judgment affirmed.


author: Todd, J. Poché, J.

text:
    No. 7636.
    Succession of Jean Marie Duran. On Opposition of the City of New Orleans.
    Where there was a judgment in the lower court homologating an account of administration, so far as not opposed, which judgment had become final, and where the only opposition to the account was a claim for §237.60 for drainage tax, this Court has no jurisdiction to determine the merits of the controversy, because the amount to he distributed is no longer an appealable bond.
    APPEAL from the Second District Court for the Parish of Orleans. Tissot, J.

      8. P. Blanc and Franlc JV". Butler, for Opponent and Appellant:
    No adjudication of property, under a sale made by a State Tax Collector, for the compulsory-payment of State taxes, will extinguish the liens of the City of New Orleans, for its taxes» unless the price of adjudication is sufficient to pay the entire amount due for municipal as well as for State assessments. R. S., Sec. 2519 ; Acts of 1858, No. 165, Sec. 7, p. 117; Acts of 1869, No. 51, Sec. 4, p. 51; Bellocq vs. City of New Orleans, 31 An. p. 471.

      L. L. Levy, for Administratrix, Appellee:
    Registry essential to preserve the privilege claimed for drainage taxes against third persons. Subsequent registry has no effect. • Const. 1868, Act 123; Act 1842, Session Acts of 1871, Secs. 5, 9, 10 ; 26 A. R. 592; 28 A. R. 496 ; 25 A. R. 334 ; 27 A. R. 371.
    Registry no effect as to third persons to establish validity of debt.
    A sale by the State of land forfeited for taxes or delinquent taxes, has the effect of canceling drainage assessments. Drainage charges are in no souse municipal taxes. They are not predicated upon the State or municipal rolls.
    The titles to the Revenue Acts of the State indicate the clear intent to provide only for the collection of the State revenue •
   The opinion of the Court was delivered hy

Todd, J.

The City of New Orleans is appellant from a judgment of the late Second District Court of said City, dismissing her opposition to a final account of administration of the succession of Jean Marie Duran, deceased.

The opposition of the City is based upon a claim for drainage taxes, amounting to two hundred and thirty-seven dollars and sixty cents, and was filed on the 18th of March, 1878.

On the 19th of March, a judgment was rendered, and signed on the 23d same mouth, homologating the account so far as not opposed. This was the sole opposition to the account. Under, or hy the effect of that judgment, the entire funds of the succession, save enough to cover the amount of the City’s claim, were distributed, as suggested in the account, or such is presumed to he the case, from the effect and terms of the judgment, leaving open for contestation, and the only fund remaining for distribution, the amount in controversy between the City and the succession for the taxes mentioned.

In the following December the opposition was tried, and judgment rendered dismissing the same. From this judgment of dismissal, and from this judgment alone, and not from any previous judgment or action of the Court, with reference to the account, this appeal was taken. The first judgment disposing of the entire fund to be distributed, save the small amount in suit, and homologating the account wherein not opposed, has long since become final. The claim of no creditor of tho succession reported in the tableau was opposed, nor opposition made to the distribution of the succession funds, save the amount of this tax claim of the City; and respecting this tax claim, no question is raised touching its legality or constitutionality.

The only amount that can possibly be distributed or paid by or under any judgment of this Court, and in fact the only amount involved when this appeal was filed, and even before it was taken, is the sum in litigation. The fund to bo distributed is only $237.60, and the amount claimed therein is just $237.60, thus plainly demonstrating that tho matter in controversy is not within the limits of our jurisdiction. This want of jurisdiction we are bound to notice.

The appeal is, therefore, dismissed at the cost of the apt>ellant.

Justices Poché and Fenner dissent.

Dissenting Opinion.

Poché, J.

The action of the majority in dismissing this appeal is, in my opinion, erroneous, and I therefore dissent.

The account of administration, which was opposed by the City of New Orleans, shows that the assets of the succession amounted to $2,692.00.

This, in the contemplation of the Constitution, (Art. 81) was the amount to be distributed, and as it exceeds one thousand dollars, this Court is clearly vested with jurisdiction.

The provision of tho present Constitution, which extends the jurisdiction of this Court to all cases when the fund to be distributed, whatever may be the amount therein elaimed, shall exceed one thousand dollar»,” is not to be found in any of the previous Constitutions of this State, by all of ■which the jurisdiction of the Supreme Court was. restricted to, and to be tested by, the amount in dispute, ■ Hence, the decisions rendered under previous Constitutions can have no bearing on the issue herein presented.

The error of my brethren of the majority consists, in my opinion, in testing the jurisdiction of this case, under the issue presented after the rendition of a judgment homologating the account as far as not opposed, and concluding that the amount to be distributed is the amount not disposed of by the judgment.

The correct, rule is to determine the jurisdiction of the Court under the issues presented by the pleadings. At the time of filing her opposition to an account of administration, proposing to distribute a fund exceeding one thousand dollars, the City of New Orleans, whatever might be the amount which she claimed therein, had acquired the constitutional right of appeal, of which she could not be divested by any act of the administrator, or of other creditors of the succession, or by any judgment, order or decree of the lower court. It is, therefore, manifestly erroneous to hold that the fund to be distributed is only §237.60, and the amount claimed therein is just $237.60. If such was the case, counsel would not have asked an appeal, and the District Judge would have granted none, even under the Constitution of 1868.

When the case reached us, the amount in dispute was the claim of the City of New Orleans, and if our jurisdiction was restricted to the amount in dispute, or to be tested by the pecuniary amount of the issue presented on appeal, or of the judgment which we may render, the opinion would be correct, but in all such cases our jurisdiction is to be determined by the amount of the fund to be distributed, and hence, in my humble opinion, the decree rendered by the majority virtually strikes out of the Constitution the provision which extends the jurisdiction of this Court to all cases, where the fund to be distributed, without regard to the amount therein claimed, exceeds one thousand dollars.

In several cases, involving a similar issue, we have exercised jurisdiction, and have thus fully recognized and enforced the rule under which our jurisdiction is to be tested by the amount of the fund to be distributed, irrespective of the amount therein claimed, and not by the amount in dispute, in all settlements of successions, and all matters where settlements are to be made in concurso.

Among such cases, I have hastily picked out the following: Verret vs. Bonvillain, 33 A. 1034; Succession of Picard, 33 A. 1137; Weems vs. Delta Moss Co., 33 A. 976; Succession of Andrew Wells, No. 8202, not yet reported.

It is true that the question of jurisdiction was not raised by counsel in those cases, nor has it been submitted in the present case.

In the case of Louisiana Western R. R. Co. vs. Hopkins, 33 A. 806, we dismissed the appeal because it was not a concurso, and we strongly intimated that if such were the ease, we would have maintained the appeal, without reference to the amount claimed in the fund distributed.

I, therefore, conclude that the decree dismissing appeal is erroneous.

Mr. Justice Fenner concurs in this opinion.


author: Levy, J. Fenner, J. Bermudez, C. J.

text:
    No. 8347.
    Katz & Barnett vs. W. B. Sorsby. London, Liverpool & Globe Insurance Co., Garnishee.
    To entitle a party to appeal from an interlooutory judgment, the injury need not be irreparable 5 it is sufficient tliat it may become so by a final judgment.
    In garnishment proceedings in execution of a judgment obtained in an attachment suit, tho judgment debtor is not a necessary party to an appeal from a judgment hetw con creditor and garnishee.
    When an* insurance oompany made garnisheo, answering interrogatories, declares that it issued to the judgment debtor, a policy on a stock of goods for a stated amount; that said stock was burnt out, but tbe loss had not been adjusted, tlxe judgment creditor cannot on tho faoe of the answer, obtain a valid judgment ordering tbe company to adj ust the loss within a given delay, or else pay his judgment.
    Tho judgment oreditor has no greater rights than the assured, aud cannot exercise them without previously fulfilling all required conditions precedent.
    APPEAL from the Civil District Court for the Parish of Orleans. Mghtar, J.

      Joseph P. Hornor, Francis W. Balter, for Plaintiffs and Appellees :
    1. Where proper and necessary partios have not boen made to an appeal it will be dismissed. 12 L. 271; 13 L, 302 ¡ 12 R, 203; 10 L. 100; 3 R. 430 ; 5 R. 230 ; 12 R. 180 ; 8A. 367;11A, 674; U A, 074; 14 A. 313; 3 R. 140 ; 10 R. 309 ; 4 A. 377; 11 A. 409 ; 3 A. 174; 21 An. 209; 10 A. 78; 18 A. 281 j 10 A. 40; 31 A, 334; 33 A. 484; and 21 A. 735.
    2. A judgment ordering a garnishee to liquidate an indebtedness to the defendant and de. posit tbe amount thereof with tho sheriff within a reasonable delay fixod, or in default to pay tbe amount of tbe judgment of plaintiff, tho indebtedness of garnishee to tho defend, ant being, under bis answers, ovidontly greater than plaintiff’s judgment, is an interloontory Judgment whioh doos not work tbe garnishee irreparable injury, and no appeal lies therefrom. 23 A. 213; 22 A. 138.
    3. Where tbe transoript contains no agreed statement of faots, note of evidenoo, or bill of exceptions, and no assignment of errors has been filed, the appeal should be dismissed. 29 A. 71; 33 An. 350.
    4. If tbe garnishee admits an indebtedness to tho defendant, bat, does not speoify the amount, tbe Court can order him to liquidate tire same within a limite l timo, and p iy ovor to the sheriff suoh amount ns be may find due. 13 An. 212; 12 An. 272; 10 La. 501.
    5. An amonded answer fllod without leave of Court is not to bo considered as part of tile record. 5 La. 80.
    0. An averment that tbe garnishee is "advised that defendant lias assigned bis claim, ” is too vague and indefinite to be entitled to notice. 21 An. 33,
    7, Aot No. 27 of Extra Session of 1877, does not apply to a garnisheo who admits an indebt, edness, and where tbe plaintiff is not seoking to disprove or traverse tbe answers of tbe garnishee.

      H. W. Huntington, Horace I) ufour, for Gamislioe and Appellant:
    1. Only persons interested in maintaining the judgment, and in having it remain undisturbed need be made parties to the appeal, 11 A. 186 ; Hon. Dig. p.’263-4; Elder vs. Rogers, 11 A, 606.

      % A judgment condemning a gamislioe to pay money, incase ho fails to deposit a specific sum with the sheriff, when he has answered he did not know how much ho owed, is not interlooutory, but final, and an appeal lies therefrom. Wabash and Erie Canal vs. Beers t 1 Black, 54; Philip’s Practice, 75.

      3. Where the record enables the Court to decide on the merits, no formal assignment is necessary. The certificate of the clerk showing that the record contains all the proceedings in the suit is sufficient. 15 A. 420; 18 A. 261; 28 A. 115; State vs. Bank of Louisiana, o 3ST. S. 341; 14 La. 368.
    4. Analysis of cases cited by the Court in the decree on the motion to dismiss.
    5. Kone but those interested in maintaining the judgment undisturbed need be made parties to the appeal. 11 A. 606; 6 R. 399; 16 La. 324; 23 A. 260; 16 La. 109; 3 R. 36 ; 5 R. 224; 12 R. 203 ; 8 L. 367; 18 A. 281; 21 A. 209.
    <5. In a suit where the garnishee has been condemned, and has appealed, the original judgment debtor need not be made a patty to the appeal. Elder vs. Rogers, 11 A. 606; Marqueze vs. LoBlanc, 29 A. 203.
    7. Where interrogatories are not traversed, no judgment can bo rendered against a garnishee whose answers show neither an attempt to evade responsibility, nor an acknowledgment of indebtedness.
    8. A judgment must bo in accordance with the pleadings, and responsive to the prayer, and no judgment can grant more relief than is asked. 4 M. 289; 2 K. S. 241; 81ST. S. 469 : Hen. Dig. pp. 731-732; Louque’s Dig. p 338; Bernheim, Baeur & Co. vs. Sorsby, lately decided by Court of Appeals.
    p. Garnishee eannot be held liable, as his answers were not traversed within twenty days. Act 27, Extra Session of 1877; 31 A. 547.
    10. Where there is a condition precedent to recovery, it must be complied with before the party can recover. Drake on Attachment, Sec. 553.
    11. The exact amount due by garnishee must be shown. Drake on Att., Sec. 553; 5 Robinson, 447-
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

The plaintiff, appellee, moves to dismiss this appeal on the following grounds:

1. “That all proper and necessary parties have not been made parties to this appeal, the defendant not having been made a party hereto.”

2. “That no appeal lies from such a judgment as that attempted to be appealed from, said judgment being an interlocutory one, which does not work irreparable injury.”

3. “ That there is no note of evidence, bill of exception, or assignment of errors of record, and, therefore, the appeal must be dismissed.”

The first ground urged is the only one which calls for our consideration. The second ground is disposed of by the authorities in 6 La. 435; 2 R. 342; 12 L. 149; 11 R. 160; 12 A. 455; 7 R. 232, in which it has been held and reaffirmed, that to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury he absolutely irreparable. It suffices that it may become irreparable by the final judgment or action of the Supreme Court on that judgment.

The objection that there is no note of evidence, bill of exceptions or assignment of errors of record, does not justify the dismissal of the appeal herein sought.

The certificate of the clerk is full and complete, and there is no suggestion of diminution. The record would enable the Supreme Court to decide on the merits. 15 A. 420; 18 A. 261; 5 N. S. 341; 14 L. 368.

The first ground, however, is serious, and the failure to make the defendant a party to the appeal, in our opinion, is fatal.

The rule that all parties to a judgment must be made parties to the appeal, is only deviated from in case of merely nominal parties without interest. 3 A. 317,

It has been held, in 3 A. 623, that, where plaiutiff in execution obtains judgment against a garnishee, from the judgment against whom defendant appeals, the garnishee must be made a party to the appeal, or it will be dismissed. Being interested in the judgment, it can neither be affirmed nor reversed without giving him an opportunity of being heard. So in an attachment suit begun by garnishment, plaintiff, in appealing from a judgment of dismissal, must make the garnishees parties. See also, 14 A. 219. We think the rule thus laid down, may, with equal force, be applied to the present case, 12 A. 801.

In this instance the appeal was granted on petition, and there was a prayer for the citation only of the plaintiff. No citation issued to the defendant, nor has he made any appearance in this appeal.

That he is interested in the judgment seems to us apparent and incontrovertible. In the original attachment suit a judgment was obtained against him serving as the basis or measure of the judgment against the garnishee, and whether that obtained against the latter is final or interlocutory,, and working irreparable injury, is immaterial, as he must have the opportunity of being heard,” in a matter in whichlie is surely interested to the extent of the funds belonging to him in the hands of the garnishee, which are sought to be applied to the extinguishment of the debt claimed in the suit.

See Louque’s Digest, title appeal, Y. p. 43, (b. I, no. I, and authorities there cited). Also, 16 A. 40.

The-motion to dismiss must prevail, and it-is, therefore, ordered that the appeal herein be dismissed at the costs of appellant.

On Rehearing.

Fenner, J.

We are convinced of error in our former decree hereiu, in holding that the defendant, Sorsby, was a necessary party to this-appeal.

It seems well settled, that in proceedings by garnishment in execution of judgments, the judgment debtor is not a necessary party to an appeal from a judgment between the creditor and garnishee. Elder vs. Rogers, 11 A. 606; Marqueze vs. Leblanc, 29 A. 203,

Tlie, present ease cannot be distinguished in principle. The proceeding, it is true, was by attachment, and not originally in execution of judgment, but it was only after it had culminated in a final judgment against the defendant, with privilege on the property attached, and only in execution of that judgment, that the rule on the garnishee was taken, from the judgment on which the present appeal is prosecuted. That the defendant was not a necessary party to the rule, is apparent from the fact that the plaintiff did not make him a party. How, then, can the plaintiff be heard to set up that he was a necessary party to an appeal from the judgment on such rule %

Our former decree herein is, therefore, annulled and set aside, and it is now ordered that the motion to dismiss this appeal be denied.

On the Merits.

Bermudez, C. J.

The question to be decided in this case relates to the liability of a garnishee, answering interrogatories, under an attachment process.

The plaintiffs seek to hold the London, Liverpool & Globe Insurance Company responsible for the judgment rendered against the defendant, on the face of the answer made by it,- and which is to the effect, that: the defendant was insured in said Company for $5,000, on stock of goods; that he was burnt out, but as loss has not been adjusted, Respondent is unable to say what will be found due him. Defendants’ interest in aforesaid policy was seized,” etc.

The rule taken was filed more than two months after the answers of the garnishee had been part of record in the attachment proceedings.

It does not appear that any issue was joined on the rule, or that any evidence was introduced on the trial. There was judgment ordering the garnishee to liquidate the amount of the loss and deposit the same with the sheriff, within ten days, or in default, that it be condemned to pay the amount of plaintiffs’ judgment.

From this judgment the garnishee appealed.

It is clear that by its answer, the garnishee did not admit owing the defendant any specific sum of money. Had it done so, and had the plaintiffs been satisfied with the answer, their remedy would have simply been to obtain an order directing the payment of the money into the hands of the sheriff, who would have receipted therefor.

The garnishee merely admitted that the defendant might have a claim against it, but that it had not been adjusted, as yet.

As the attaching plaintiff can acquire no other or greater rights against the garnishee than the defendant, it follows that, though the garnishee be indebted to the defendant, yet if there be anything to be done, as a condition precedent, to his recovering his debt in an action against the garnishee, the plaintiff cannot obtain judgment, against the garnishee without performing the condition. It is not enough to charge the garnishee that he owes something to the defendant. The amount owing must be shown. Drake on Attachments, Sec. 553. '

The record does not establish that the judgment creditor lias proved any of the facts which it would have been incumbent on the insured to have alleged and proved, previous to a recovery. There is not even an allegation of liability, for any. specific amount, on the part of the Company to the insured. Even if the answer of the garnishee, apparently adopted by the rule, could be considered as part of it, the amount of the loss sustained, and therefore due to the insured, not having been admitted by the Company, no order to liquidate, no money judgment could have been rendered against it, as was done. It may still well be, that in a proper proceeding to hold it liable under the policy, the Company may have some valid, exonerating defense to set up, which it was not hound to interpose on the rule in this ease.

In the absence of any issue joined and of evidence introduced, the defense must he considered as having been one of no cause of action. This view of the case dispenses us from determining whether or not the rule was seasonably taken. Act 27, E. S. 1877; 5 R. 447; 16 A. 253; 31 A. 548.

Whatever may be the rights of the judgment creditors under the garnishment proceeding, the same remain unimpaired, in the condition in which they stood at the date of the seizure.

It is, therefore, ordered and decreed, that the judgment appealed from he reversed, and that the rule therein rendered be dismissed, with costs, in both Courts.


text:
    -No. 8533.
    Heirs of David F. Miller vs. A. G. Ober, O. H. Wilds et al.
    This is an action to annul a -will, the order probating it, the appointment by codicil of an ex-editor, and the sale of the succession property. Such an action is prescribed by fire years.
    APPEAL from the Ninth Judicial District Court, Parish of Concordia. Hough, J.

      George 8. Sawyer, for Plaintiffs and Appellants:
    1, The plea of prescription, as a peremptory exception, is in the nature of a demurrer; all the allegations in the petition must he taken as true for the purpose of a trial of the same* 313 An. 374,138,177, 204 ¡ 14 An. 137; 14 La. 421; 10 An. 586 ; 9 An. 9 } 6 Rob. 419.

      2. A nuncupative testament by private act must be read as required by law, under pain of absolute nullity. C. C. Arts. 1382,1593 ; 5 Rob. 481; 6 An. 242 ; lL An. 451; Roil., tom. 1, p. 632; Vazille, Prescr., p. ¿29. n. 380; C. H. 972.
    3. The order for the execution of a nuncupative testament by private act, on the depositions of but two subscribing witnesses, is null and of no effect. C. C. 1648; 0. P. 942 983. Ho day being fixed, etc. C. P. 933. 943; (J. C. 1644. It cannot bo the basis of prescription. 1 Hen. Dig 647, (e. n. 6); 1 Rob. 48; 5 Rob. 483; 2 An. 726; 6 An. 104; 5 An. 263; 6 An. 246; 10 La. 553.
    4. The private memorandum attached to said will had no effect. “ IT no contenta actas testad apporfet (veí,” etc. Potli. if. lib. 2, tit. 1, sec. 2, ns. 23, 24; C. C. 1571; 14 An. 597.
    5. The court below should have-granted a new trial. Ho prescription can cure nullities resulting from such collusion and fraud. Ivorr on Rraud and Mistake, p. 293, authorities cited; Underwood vs. McVeigh, American Law Times, July, 1874, vol. 1, n. 7, pp. 289, 290.

      Boalner cO H/nson, for Defendants and Appellants :
    The prescription of five years bars nullities of fonn in the proceedings leading to the probate of a v ill. also tlie action to annul the order and decrees of the Probate Court, under which succession property has already been sold. Rev. C. C. 3542 and 3313; Ann S. Miller vs. M. Georgia Miller. 32 A. 437; Heirs Porter vs. Hornsby, 32 A. 337 ; Munholland vs. Scott, 33 A. 1043, and authorities there cited.
   The opinion of tlie Court- was delivered by

Todd, J.

This is an action to annul tlie will of David P. Miller, deceased, and tlie order probating it, also the sale of succession property, and recover tlie land, the subject thereof. It is brought by tlie widow and legal heirs of the deceased.

The following tacts relating to the case, we gather from the record :

David F. Miller died in August, 1862, in the Parish of Concordia. He left a last will and testament dated in March of the same year, and what purported to be a codicil thereto, naming an executor, dated in August of the same year.

On the 20th of - September, of that year, the will was probated, and Ulrich, one of the executors named therein, qualified. Nothing was done touching tlie administration of the estate for a number of years, and in 1870, Ulricli, executor, left the State. In 1871, W. F. Miller, the executor appointed by the codicil, qualified, and soon afterwards caused tlie sale of the property in controversy. This sale was made on his application to pay debts, and under an order signed by the Parish Judge, and the property was adjudicated at public auction to one W. A. Miller, purporting to be a creditor of the succession, and under successive sales, finally came into the possession of the defendants.

After the sale (in 1872) the executor filed his final account, which was homologated on that opposition, and lie discharged.

The defendants pleaded the prescription of one, five and ton years against the action, which was sustained by the Judge a quo, and from his judgment thereon this appeal is taken.

The ground of nullity urged against the will is, that it was not read in the presence of the witnesses before being signed by the testator. And the nullity of the order probating it, assigned, is that it was proved up by only two witnesses, whilst a third one was present in the Parish, and that the 2troces verbal of the officer probating the will, stating his absence, was false.

It is further urged that the executor who caused the sale of the property, was without authority, because he was appointed by the codicil mentioned, which was alleged to be null, and that the debt of the succession claimed by the purchaser of the property was extinguished by prescription, and the mortgage securing it had per'empted before the sale. Fraud and collusion is also charged between the executor and the said purchaser.

The last will was filed and probated in 1862.

The sale in question was made in 1871, under an order of Court.

The final account of the executor was filed and homologated, unopposed, in 1872.

This suit was brought July 24, 1880.

Article 3542, C. C., declares: “ The following actions are prescribed by five years: That for the nullity or rescission of contracts, testaments, or other acts.”

Article 3543: All informalities connected with, or growing out of, any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale at the lapse of five years from the time of making it.”

We have attentively considered the able and ingenious argument of tiie plaintiff’s learned counsel, and the French authorities cited, to show that the prescription pleaded does not cure the nullities of a will and its probate, such as.are charged in this instance. Whatever may be the French jurisprudence on the subject, it is evident that the Article quoted above does not recognize the distinction as to the different kinds of nullity contended for. This construction of the Article is confirmed by frequent adjudications of this Court. 10 A. 684; 2 A. 715 ; 3 A. 329 ; 16 L. 91; 32 A. 337, 437 ; 33 A. 1043.

The judgment of the lower court is, therefore, affirmed with costs.


text:
    No. 8506.
    Emanuel Fendler vs. J. W. Bates, Sheriff, et al.
    The Supreme Court is without jurisdiction to entertain a suit to annul a tax sale, at the instance of a person seeking to enforce an hypothecary action against the property sold, where the amount of the mortgage claim is only $330 and interest.
    APPEAL from the Seven teen tli Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      G. I). Favrot, L. D. Beale, for Plaintiff and Appellant.

      Burgess cC Burgess, for Defendants and Appellees:
    ’Where the matter in dispute is a party’s light to subject property to the payment of his judgment for an amount less than $1,000, this Court is without jurisdiction, although the property sought to be subjected to said judgment is worth more than §1,000. 33 A. 1083; B. C. C. 19T7.
   On Motion to Dismiss Apfeal.

The opinion of the Court was delivered by

Todd, J.

Certain real estate of J. C. Chautte, having been sold at a tax sale, plaintiff, claiming a judicial mortgage on the property for $350, and interest, brought a suit to annul the tax sale, and in the alternative, to establish a preference on the proceeds of the sale, should the demand of nullity be rejected, and at the same time praying that the proceeds of the sale, which were still in the hands of the sheriff and tax collector, should he retained till final judgment in the case. An order to that effect was granted by the Judge.

This entire suit, as we view it, is an attempt to enforce plaintiff’s mortgage claim of $350, and interest, against the land.

If the sale should he annulled, the land would not belong to plaintiff, and, in that event, should he have to bring another action to enforce his hypothecary right against it, it is clear that this Court could not entertain such a demand.

The case comes clearly within the rule laid down in the case of Loeb & Bloom vs. Arent et al., 33 A. 1086.

Plaintiff’s rights against the land, or the proceeds of its sale, must be measured strictly by the amount of his mortgage debt.

The case of State ex rel. Bloss vs. Judges, 33 A. 1351, referred to, is not applicable in the instant case.

The motion to dismiss must prevail.

The appeal is, therefore, dismissed at appellant’s costs.

Levy, J., absent.


author: Bermudez, (!. J.

text:
    No. 8388.
    City of New Orleans vs. P. A. LeBlanc. City of New Orleans vs. T. A. Beck. Consolidated.
    Defendants, as mauufaot-urors, aro exempt under Art. 207 of tlio Constitution, but, as dealers, which the evidence shows them also to be, tlioy are liable for a license tax.
    APPEAL from Uiu First City Court for tlio City of Now Orleans. Skinner, J.

      J. 'IYard Gurley, Assistant City Attorney, for Plaintiff and Appellant in tlio first ease ; Apx>elloe in tho second:
    Articles 20G and 207 specially enumerate tho exemptions from taxation and licenses, and excludes from oxomptum all proporty, porsons aud oallings not ouumeratod. 3t An. 440.
    A manufacturer is “ a person eugngi-d iu tho business of working raw materials into wares suitable for uso.” Webster’s Dictionary.
    A cooper who makes barrels from blocks of stavos is not a manufacturer, in the sonso of the law which oxempts tho latter from taxation. 32 A. 1073.
    If tho exemption claimed applies, it cannot bo stretched beyond the sale of the barrels, oto., nmdo by defendants, and tlioy are liable for a license tax on any other business dono by them. 28 A. 703 ¡ 31 A. 310, 008.

      T. 2L GUI, for T. A. Beclc, Appellant:
    A ooopor, one who makes hogsheads, barrels and kogs, is a manufacturer of articles of wood. Webster’s and Worcester’s Dictionaries; Bouvier's Law Dictionary; 27 I’enii. Slat. 493 and 490.
    He who manufactures articles of wood is exempt from all taxation and license, and as well, for every eonstituont part of said business incident thereto. Constitution. Art. 207 j 11 Penn. Ktat. 202-205; G Gill, 2!)3 and 29G,

      Joseph P. Humor and I<\ IV. Baker, for P. A. LoBlano, Appellee :
    A cooper who makes barrels is a manufacturer.
    If a eoopor employs more Hum live hands, ho is exempt from all license under Article 207 of the Constitution.
   The oxnnion of tlio Court was delivered by

Bermudez, (!. J.

The City claims in those suits a license tax of $50 from each of tho defendants, who pursue tho occupation of coopers.

Tho defense is, tho unconstitutionality of the tax, by reason of an exemption from such tax, under tlio x>rovisions of 'Article 207 of the Constitution.

The lower court gave judgment for tho City against each defendant, for ten dollars only, considering them as exempt from the $50 license, but as liable for that of S10 as mechanics, whoso receipts exceed $2,000.

The judgments thus rendered are brought up to be reviewed together.

The Article invoked reads:

There shall also be exemx>t from taxation and license for a period of ten years from the adoption of this Constitution, the capital, machinery, and other property employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, hats, flour, machinery, agricultural implements, and furniture and other articles of wood, marble or stone; soap, stationery, ink and paper, boat building and chocolate; provided that not less than five hands are employed in each factory.”

The. object of the convention was to exempt from taxation the property mentioned, and from license the persons using the same, during the time, and under the restriction stated.

To determine whether the defendants are such persons, it is necessary to determine whether they are engaged in the manufacture of articles of wood.

The record shows that they are coopers, mechanics who employ assistance; that they make barrels, hogsheads from rough logs and splits, and carry on a general cooperage business.

It establishes that for 1831, LsBlanc’s gross receipts from the sale of such articles amounted to $30,000; from the sale of hoop poles to $2,000; from repairing damaged packages to $3,000.

It shows that for the same year those of Beck, for the sale of articles manufactured by him, amounted to $30,000; for the sale of hoop poles to $3,000; for the repairing of damaged articles to $400, and for the sale of old barrels, etc., taken in payment of new ones, to $2,000.

Webster defines a manufacturer to he a person engaged in the business of working raw materials into wares suitable for use.

The defendants are either dealers or they are manufacturers. If they are not dealers, they are manufacturers. They may he both. A dealer is not one who buys to 'keep, or makes to sell, hut one who buys to sell again. Ho stands between the producer and the consumer, and depends for his profit, not upon the labor which he bestows on his commodities, but upon the skill and foresight with which ho watches the markets.

A manufacturer is not one who creates out of nothing, for that surpasses human power; neither is ho one who produces a new article out of materials entirely raw. He is one who gives new shapes, new qualities, new combinations to matter which has already gone through .some artificial process. A shoemaker is none the loss a manufacturer, because lie does not also tan the leather; the tanner is none the less a manufacturer of leather, because he does not breed and raise the bullocks from which the raw hides are taken. The tanner makes leather to sell, hut does not buy hides to sell again. He produces the article of the leather and depends for Ms profit upon the labor which he bestows upon the raw material.

In other words, dealers are middlemen between the manufacturer or the producer and the consumer. Manufacturers are the suppliers of the dealers, or consumers. 33 Penn. 330; Commonwealth vs. Campbell, 100 Mass. 183; Burroughs on Tax. p. 153, § 80.

In so far as they make barrels, hogsheads, and similar articles of wood, such as coopers make, the defendants must be considered as manufacturers, and as such, exempt from the license sought to be collected from them.

But the case is different where they deal in articles of wood not manufactured by themselves; as when they buy and sell hoop, poles. For pursuing such business they are liable. The exemption, to which they are entitled as coopers, cannot be extended to occupations which are not formally exempt. 28 A. 765; 31 A. 310, 668.

There is an admission in the record that it is the custom of the coopers doing business on an extensive scale, to purchase in the spring cargoes of hoop poles, and after retaining as many as maybe necessary for their factories, to resell to smaller dealers the surplus remaining on hand.

That the sales of defendant, LeBlanc, exceed $2,000, and those of defendant, Beck, exceed $3,000.

The City has claimed $50 from each defendant, whom the lower court has condemned to pay a license of $10 only. The City insists that if they be not liable as coopers, they should be held liable as mechanics, each for a license of $20, their receipts exceeding $4,000. The appeal being on the law and on the facts, under Article 81 of the Constitution, we can pass upon this question.

From the showing made, we are not satisfied that in the business done by them the defendants have shown that the hoop poles which they have sold were those remaining on hand at the end of the season. The burden was upon them to do so, on this account and under the admission. The inference is that they have sold those hoop poles as dealers, to smaller dealers, but as their receipts did not exceed $4,000, but $2,000 only, they could not be held to pay a license of more than $10.

We find no error in the judgments appealed from, which are, therefore, affirmed with costs.

Rehearing refused.


author: Pociié, J. Fenner, J.

text:
    No. 8394.
    Succession of Mary Ann Berfuse.
    The Civil District Court is legally open ftom the third of July to November, for probate matters; a judgment rendered in such matters is of full force and effect, and an appeal therefrom, granted on motion legally obtained.
    It is inconsistent to ask, in a petition, to be recognized as sole heir, accepting a succession purely and simply, then afterwards, by opposition to tho Public Administrator, pray to be appointed administratrix; such opposition and prayer operate as a waiver of the first demand.
    The interven or has failed to establish her identity, hence, her claim to administer, in preference to the Public Administrator, must fall.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Julian A. Seghers, for Interveners and Appellants :
    The Public Administrator has no right to claim to be appointed in a succession when there are heirs present in the State.
    In default of legitimate descendants, the natural children are the legal heirs of their mother, and no one can contest their right to her succession, unless he has an interest in so doing. •
    The legal acknowledgment of natural children, and their judicial acknowledgment, decreed by judgment of Court, are of equal dignity and are both due acknowledgments, under the law, as to their effects.

      Breaux cG Hall, for Public Administrator, Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Pociié, J.

This appeal is taken from a judgment appointing the Public Administrator, P. S. Wiltz, administrator of the succession.

The grounds urged for the dismissal of. the appeal are, that it was obtained out of term time, not on petition, and that no citation of appeal was issued.

The record shows that the judgment was rendered on September 27th, 1881, and signed on the 8th of October following, and that the order of appeal was granted, on appellants’ motion, on the 18th of the same month.

Appellee contends that the terms of the Civil District Court of the Parish of Orleans, are fixed and regulated by Section 1985 of the Revised Statutes, fixing the terms of the District Courts for the Parish of Orleans, established under the Constitution of 1868; under the provisions of which law, said terms began on the first Monday of November, and ended on the third of July of each year, and hence he argues that the appeal in this case was granted out of term-time, and that it should have been obtained by petition and followed by citation of appeal.

Appellants, on the other hand, urged that under the powers conferred to it "by Art. 132 of tlie present Constitution, the Civil District Court for the Parish of Orleans, has fixed its own terms; that under the rules of said Court, its term for general matters begins on the first Monday of November and ends on the third of July of each year, and that from the third of July to the first Monday of November, of each year, Court shall be open, for certain enumerated purposes, among which is included the trial of all probate matters. Hence, they contend that the judgment appealed from was rendered at a term of Court legally established for tlm purpose of such a judgment, and that the order of appeal was properly and legally granted on their motion x>resented at the term at which the judgment was rendered.

All the courts created by the Constitution of 18G3, having been abolished by the present Constitution, it follows, as a logical proposition, that all laws xiassed under the former Constitution, specially intended for the regulation of courts created thereunder, have, of necessity, been, abrogated, and have disappeared with the courts for which they had been enacted. The object and the subject matter of the law having ceased to exist, the law itself has perished. Hence, wre are clear that Section 1985 of the Revised Statutes does not regulate the terms of the Civil District Court for the Parish of Orleans, and that under the present Constitution, such terms have been projmrly and legally fixed by said Court.

We, therefore, conclude that in Scx>tombor and October last that tribunal was legally open for the trial of probate matters; that the judgment appealed from was rendered at a term of Court legally established for the purpose of such judgments, and that the order of aj>x>eal was legally obtained at the same term.

Appellee’s theory, under which the Court was ojien for the purpose of rendering a valid judgment in his favor, but not for i he pmpose of granting an order of appeal therefrom, on motion, is glaringly illogical and absolutely untenable. 21 A. 733, State ex rel. New Orleans vs. Judge, etc.

The motion to dismiss this apjieal is, therefore, overruled at apx>ellants" costs.

On the Merits.

Fenner, J.

Christina and Mary Berfuse, alleging themselves to be illegitimate children of deceased, and alleging that she died intestate leaving no legitimate heirs, filed a petition praying to be recognized as-her sole heirs, accepting her succession purely and simply, and to be put in possession thereof. This petition was accompanied by certain-affidavits tending to establish the facts alleged.

No action appears ever to have been taken on this petition. Subsequently, P. S. Wiltz, Public Administrator, filed liis petition representing that deceased left no surviving husband or heir, present or represented in the State, and died intestate, and praying to be appointed administrator of her estate. Under proper order of court, the application was published according to law. Pending the legal delay, Mary and Christina Berfuse, claiming to be natural children duly acknowledged, and, as such, heirs of the deceased, filed an opposition to the application of the Public Administrator, and prayed that it be rejected, and that Mary should be appointed administratrix of the succession.

This opposition, and the prayer thereof, was inconsistent with their prior petition to-be put into possession as heirs, and operated a waiver of that demand. It left before the Court a simple contest for administration between the Public Administrator, on the one hand, and Mary Berfuse on the other.

After trial, judgment was rendered dimissing the opposition, and appointing the Public Administrator,- from which judgment, opponents have appealed.

The record contains no note of evidence and no copy of the testimony, and we have nothing before us except an agreed statement of facts, which is as follows :

Opponents’ witnesses proved, that they had known Mary Ann - Berfuse, one of the opponents, for many years; that they always considered her as the daughter of deceased, having known her as a member of her household, since early childhood. ”

One witness testified that he was present at thefétede baptéme, held in honor of opponent, Mary Ann Berfuse; that he passed the day at the house and partook of the good cheer provided for the occasion.

That during the day, a party of persons left the house, bearing the infant, and avowedly for the purpose of having it baptised. That said party returned with the infant.”
That neither the witness nor the mother, the deceased, accompanied said party.
That the deceased was employed during the day in preparing the festival.”

We can consider nothing but the above statement. We are asked to consider the affidavits attached to the petition for putting in possession.

They would clearly have been inadmissible, as evidence, except by consent. There is no proof of such consent, and none that they were ever even offered in evidence.

We find attached to the record, at the end, a certificate of baptism, in the original, which, by the endorsement on it, appears only to have been filed in the lower court on the day the appeal was taken. By whose authority it was filed, and how it comes to be thus pasted on the record, is not explained, and we can discover no possible authority for taking cognizance of it, especially as the counsel for the administrator objects thereto.

Unless the opponents proved their heirship, the judgment of the lower court was cleanly correct.

Clearly the statement of facts does not prove the heirship. It does not prove acknowledgment by the alleged mother, in any manner authorized by law; nor does it prove the maternal descent, to do which, ojiponeut was bound to show that she was “identically the same person as the child whom the mother brought forth.” C. C. 212, (230).

This involves, first, proof of the accouchement and the bringing forth of the child; and, second, proof of the identity of the claimant with the child so brought forth. 5 Demolombe, Nos. 500 and 501; 1 Mourlon, p. 493.

There is a complete lack of such proof.

Opponents may have rights which they may vindicate in other proceedings and on proper evidence. But, upon the issue and evidence presented by this appeal, it is clear we cannot say the judgment pronounced is erroneous.

Judgment affirmed at appellants’ costs.


author: Fenner, J.

text:
    No. 7625.
    University Publishing Co. vs. Mrs. Charlotte Piffet et al.
    The term “under-tenant,” as used in C. C. 2706, is synonymous with “under-lessee.”
    Without a price fixed by the parties or left to the award of third person named or determined, there can be no lease.
    The goods of a third person contained in the leased house by his consent, under an agreement with the lessee, that no rent or other consideration was to be paid for the occupancy, are not the goods of an “ under tenant,” and are affected by the landlord’s pledge.
    APPEAL from the Sixth District Court for the Parish of Orleans. liightor, J.

      A. L. Tuclcer, for Plaintiff and Appellee :
    1. Where a lessee of a store permits a third person to occupy a room or apartment in the leased store, free of rent, and without any fixed term, the latter is under tenant at will of the principal lessee; and his goods and effects found in such room or apartment of the leased store, are not subject to the right of pledge 'enjoyed by the landlord of the principal lessee, except as is provided by the Civil Code, Art. 2706.
    2. The University Publishing.Company, through its agent, Clarke, being the under-tenant of Gresham, the principal lessee, and not being indebted to him for any amount, its goods found on the leased premises could not be legally seized and sold by Mrs. Piffot, the lessor, to satisfy the rents due by Gresham C. C. 2706 ; 7 A. 524; 18 A. 498-501, 718; Smith’s Landlord and Tenant, 48, 50; Harrison’s Digest, Yol. 2, p. 3630, and cases there cited ; Kent’s Commentaries, (6th edition,) pp. 113, 114, 115; Tomlin’s Law Diet., Yol. 3, p. 573, for definition of “ tenant.”
    3. The effects of the under-tenant, who owes no rent to the lessee, cannot be seized by the landlord, and if'they are sold during his absence, he may recover their value. 18 A. 718.

      L. L. Levy, for Defendant and Appellant:
    As the plaintiff was in no sense a sub-tenant, and his goods on the leased premises were there with his express consent, the lessor’s pledge affected the goods under the express provision of statute, C. C. 2707; 14 A. It. 503; 28 A. K. 433; 27 A. K. 87.
   The opinion of the Court was delivered by

Fenner, J.

Defendant, as lessor of Jas. A., Gresham, upon a claim for unpaid rent, provisionally seized, and, after judgment, caused to be sold certain property of the plaintiff -found on the premises, and claimed to be subject to her, lessor’s privilege.

The present action is for restitution of the value of the property on the ground that it was unlawfully seized and sold.

It is not denied that plaintiff’s goods were contained in the house or store,” by its own express consent, and were, therefore, affected by the landlord’s right of pledge under C. C. 2707, unless plaintiff was an “under-tenant,” not indebted to the principal lessee at the date of seizure, in which case Ms goods would be protected under C. C. 2706.

The facts are, that plaintiff was permitted to use for his business, and to store his goods in, a room of the leased house, by consent of the principal lessee and at his will, under an agreement that he was to pay no rent or other consideration for the privilege, the motive of the lessee being benefit to his business expected from having plaintiff in the house.

Clearly this arrangement was not a lease, which is defined by our law to be “a synallagmatic contract, by which one party gives to the other the enjoyment of a thing at a fixed price,” and to constitute which, as in a sale, “three things arfe absolutely necessary, to-wit: the thing, the price and the consent.” C. C. 2670, 2672.

Without a price fixed by the parties or left to the award of a third person named, and determined, there can be no lease. Fisk vs. Moores, 11 Rob. 279; Haughery vs. Lee, 17 A. 23; Gleason vs. Sheriff, 20 A. 268.

It is contended, however, that the word under-tenant,” as used in C. C. 2706, is not necessarily synonymous 'with under-lessee,- but may cover tenancy arising otherwise than from a lease, and quotations are made from common law authorities to the effect that the mere occupier, by consent of owner, and rent free, is a tenant at will. No doubt he is a tenant'm the broad sense of holding and possessing, but the context of Art. 2706, taken in connection with Art. 2707, leave no possible doubt that the Code refers alone to under-lessees.

Plaintiff not being such, Ms goods foil under the lessor’s pledge.

Tho other ground urged, that the lessor’s rent judgmont was fully satisfied out of the sale of tho lessee’s property, without the necessity of selling that, of plaintiff, is not sustained by the record. The lessor’s judgment was for $3,716.64, besides interest. The nett proceeds of the entire sale were insufficient to satisfy the same.

Plaintiff has no concern with the .arrangement by which, after the sale, tho lessor acquired, for a consideration, the unexpired term of the lease.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed, that there be judgment in favor of the defendant, rejecting the demand of plaintiff at its costs in both Courts.

Levy, J., absent.


author: Eenner, J.

text:
    No. 9758.
    Gordon & Gomila vs. F. Müchler. The Louisiana National Bank vs. The Union National Bank. Consolidated.
    By-laws of a corporation to be valid must be consistent with the general law, and cannot affect tho rights of third parties without their consent, or depositors not privy to thorn.
    A bank cannot apply funds on deposit to the payment of a debt due it by tlio depositor; compensation never takes place in such a case without the special assent of the depositor.
    Our law differs from the common law doctrine, that where a check has beon presented to, and acceptance refused by a bank, there being no privity, the holder of the chock cannot sue tlio bank.
    A check duly notified to the hank constitutes an equitable assignment of the fund against which it is drawn. Case vs. Henderson, 23 An. 49, overruled. Obiter. There is no dis* tinction to be made between the irregular deposit of the customer with his factor and that of a depositor with a bank.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      J. Ward Gurley, for Gordon & Gomila, Appellants :
    1. A bank cannot apply deposits held by it to the payment of an indebtedness due it by the depositor. C. C. 2210, 2956 ; 12 An. 257; 7 An. 53; 2 An. 25; 11 An. 73 ; 23 An. 116 ; 32 An. 590.
    Neither custom, nor the by-laws of tbe bank can authorize such compensation or set off, when prohibited by law. 23 An. 113; Sec. 5136, R. S. IT. S.; 5 N. S. 344; 9 An. 44; Angelí and Ames on Corporations, §§ 333, 335 ; C. C. 433, 445; 25 An. 413.
    2. A check is not an assignment of tbe stated amount of the fund upon which it is drawn, .before it is accepted by the drawee. Nor has the holder any action against the bank in case of refusal to pay. 23 An. 49 j 10 ‘Wallace, 152; 13 La. 98; 94 U. S. 343.
    A check docs not differ in this respect from a sight draft.

      3. The payee of the check knew, when it received the check for the entire balance duo the drawer, that tho drawer had failed, owing many creditors, and could not meet his obligations, and tho facts of tho case are such as entitle Gordon &. Gomila, tho attaching creditors. to said balance of deposit.
    Arts. 2642 to 2654, C. 0 , do not apply to checks on banks. The requirements of those Articles are not fulfilled if the assignment be in the foim of a negotiable instrument.
    Checks being negotiable paper, they are governed by the lex mercatoria, and do not operate as an assignment, unless accepted by the drawee. 23 An. 49 and 60; 10 Wallace, 152; 13 La. 98; 94 U. S. 343 ; 49 Barb. (X. X.) 22; Law Rep., 6 E. and J. Appeal, 352; Law Rep., 19 Eq. Cases, p. 74; 12 M. 498, and cases there cited; 2 X. S. 123; 2 Rob. 122; 5 L 405; 4 An. 206.

      Miller, Finney cC* Miller, for Louisiana National Bank, Appellee:
    The check holder has a right of action against the bank on which it is drawn, the depositor having in the bank, on deposit, tho funds to meet the check. Yan Bibber vs. Bank of Louisiana, 14th An. 486, and other authorities cited in brief.
    The bank cannot compensate the debt it owes to the depositor, by the debt due to it by the deposition. Civil Codo, Art. 2210; 2d An. 25; 23d An. 116; 32d An. 590.
    The compensation being prohibited by law, the by-law of the bank which undertakes to allow that compensation cannot prevail. By-laws cannot override the law. They must be framed in accordance with, and not agaiust the law, or, as the statute expresses it, ‘‘not inconsistent with law.”, R. S. U. S., § 5136, paragraph 6; Angelí & Ames on Corporations, § 333.
    Nor do by-laws bind depositors not privy to them. 22d An. 98.
    The check by the drawer, on funds in the bank, passes to payee of the check, the fund paid the date of presentment of the check. Hence, no subsequent attachment against the drawer of the check can reach the fund, which has ceased to be his property.

      Oarleton Hunt, for Defendant and Appellant:
    Where one having money on deposit in a bank, becomes indebted to it by the maturity of a note executed by him, and held by the bank, compensation will take place, and the debts extinguish each other to the extent of the smaller of tho two. 10 Rob. 197; Morse on Banks, Ed. 1879, pp. 28, 29, 31, 42.
    The decisions of the Supreme Court of Louisiana in the following cases, to-wit: Bloodworth vs. Jacobs, 2 An. 23; Breed vs. Purvis, 7 An. 53; Morgan vs. Lathrop, 12 An. 257; Bogert vs. Egerton, 11 An. 73 ; Murdock vs. Bank, 23 An. 116 ; Hancock vs. Citizens’ Bank of La. 32 An. 582, are inapplicable in the instant suit. But the decision of the Court in Eowler vs. The Bank of Louisiana, 10 Robinson’s Reports, p. 200. as shown already in the first brief for the Union National Bank, is of direct application in the instant case, and there must be judgment in accordance with this decision in favor of the Bank, as prayed for.
    The relation of banker and depositor is the ordinary relation between debtor and creditor, and compensation will take place between them.
    Apart from argument as to the applicability, in this suit, of the decisions first cited, the doctrine they maintain, that compensation does not take place in the irregular deposit, so called, or contract of Mutuum of the Civil Law, is incorrect doctrine, and ought to be recalled.
    Inasmuch as no rule of property is established by the decisions here referred to, it is clearly ' competent for the Court to overrule them now. 12 How's Reports, 443.
   ' The opinion of the Court was delivered by

Eenner, J.

This case presents a triangular contest between three creditors of F. Müchler, over a balance standing to the credit of the lattor’s deposit account with the Union National Bank. ■

1. The Union National Bank claims that the credit was extinguished by compensation, because it (the Bank) was holder of a dishonored draft of Müehler, and has applied the credit to the extinguishment of said debt.

2. The Louisiana National Bank claims it as holder of a check of Müehler on the Union National Bank for the exact amount of the credit, which check had been presented to the Union National Bank and payment thereof demanded, and, on refusal, had been protested, and written notice given to the Union Bank that this was claimed to operate an assignment of the credit.

3. Gordon & Gomila claim.the fund by virtue of an attachment thereof, executed after the above proceedings.

I.

So far as the Union National Bank is concerned, it is not pretended that it had any express authority or consent from Müehler to apply the balance due him as depositor to the extinguishment of the debt due by him to the Bank. It attempts to imply such consent from the fact that one of its own by-laws provided : “All notes discounted by the Bank, which are not taken up before the closing of the Bank, on the last day of grace, shall be charged to the account of the parties to the same, provided.there are funds in the Bank to the credit of such person or persons.”

No evidence is adduced to establish that this by-law was ever assented to by Müehler, or that he was ever even notified of its existence.

Nothing is better settled than that by-laws of a corporation, in order to be valid, must be consistent with the general law, and that they cannot have effect to interfere with the rights and privileges of third parties or strangers, not members of the corporation, or be made binding on them, without their consent. Potter on Corp. § § 75, 76 ; Field on Corp. § § 295, 296: Grant on Corp. pp. 76, et seq.; Angell and Ames, § § 333, 335.

Unless the Bank had the right, under the law of the State, to attribute Miichler’s credit in compensation of the debt due by him, this by-law could not create such right.

In the case of Hancock vs. Citizens’ Bank, we said: “ Repeated adjudications in the jurisprudence of this State have placed beyond the domain of further controversy the principle that compensation does not take place in the confidential contracts arising from irregular deposits, such as the deposit of money with a banker, and the depositary is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, except there is a special mandate from him.” 33 A. 592, quoting 12 A. 257; 7 A. 53; 2 A. 25; 11 A. 73; 23 A. 116.

The vehemence of the assault now made upon the correctness of this doctrine is not, in our judgment, sustained by a corresponding force in the arguments advanced against it, with whatever learning and power they are enforced. The distinction sought to be drawn between the irregular deposit of the customer with his factor and that of the depositor with the bank, has no existence ; or, if there were any, it would be in favor of the latter, so far as the prohibition of compensation is concerned, because, while the factor usually allows his customer interest 011 sums left in his hands, the bank has the gratuitous use thereof. Those decisions, therefore, which forbid compensation in the relation of the factor and customer, may be said to apply, a fortiori, to the relation of bank and depositary. Moreover, in the earliest case of Bloodworth vs. Jacobs, 2 A. 25, Chief Justice Eustis repeatedly refers to the relation of banker and depositary, in illustration of liis views as there expressed. In that case and in Breed vs. Purvis, 7 A. 35, the very arguments now urged were stated in the opinion of the Court and overruled.

The extensive references to common law authorities, establishing that the relation of banker and depositor, like all other irregular deposits, created the relation of debtor and creditor between the parties, seem superfluous, in view of the learned and exhaustive decision of this Court to the same effect, in Matthews vs. Creditors, 10 A. 342, the correctness of which has never, to our knowledge, been questioned.

It is not possible to suppose that Chief Justices Eustis, Slidell and Merrick, with all their learned associates, were oblivious of this principle or of the elementary distinction between the kinds of loan known as depositum, commodatum and mutuum. On the contrary, their decisions show that, while admitting the irregular deposit to be neither depositum, nor commodatum, but distinctly mutuum, and, therefore, giving rise to the ordinary relation of debtor and creditor, they yet deliberately held that, from the nature of the contracts, and under the provisions of our Code, as construed by them in connection with the fundamental principles of the Roman Civil Law, such irregular deposits were not subject to compensation. Their view is sustained by the construction placed on Articles of the Code Napoleon, identical with ours, by such jurists as Toullier, Marcadé, Mourlon, and others, who hold that the words, restitution of a deposit,” as used in Art. 2210 of our Code (Nap. C. 1293) although not scientifically applicable thereto, were, nevertheless, intended to include irregular deposits.

The arguments of these jurists, which it is not necessary to state here, convince our judgment, and we approye their conclusion. Even were we in doubt, such has been the settled construction of our Code for 35 years, and no legislative change thereof has ever been made.

II.

As to the claim of the Louisiana National Ba-nlc.

It will not be disputed that a written order by a creditor, addressed to his debtor, directing him to pay to a third person a debt due to the former, accompanied by due notice to the debtor, would comply with all the requirements imposed by our Civil Code, Arts. 2642 to 2654, for the .valid giving of title, delivery, and complete assignment of the' credit or incorporeal right referred to in the order.

On general principles, the check, its presentation, x>rotest, and the written notice herein given, unequivocally fulfil all these requirements.

The question presents itself: on what x>rincix>le shall we refuse to give to such a transaction the effect which is given to it under the textual provisions of our Code ?

In the slightly considered case of Case vs. Henderson, 23 A. 49, it was held that the check-holder did not acquire a right of action against the bank, upon the authority of the Supreme Court of the United States, in Bank vs. Millard, 10 Wallace, 152. That was a case at law, in error to the Sux>reme Court of the District of Columbia, where the common law x>revails, and the able and x>erfectly accurate opinion of the Court is based upon the common law principles: 1st, that there was no privity of contract between the bank and the check-: holder, at the time the check was given, and 2d, that no such privity was created by the mere presentation of the check, without acceptance of the bank, because the depositor’s right was a mere chose in, action, not assignable without the consent of the debtor.

Olioses in action correspond substantially to, or, at least, are included within the civil law definition of incorporeal rights.

Our law, differing therein from the common law, distinctly recognizes the assignability of that class of incorporeal lights known at common law as dioses in aetion, and xn’ovides for the perfectibility of such assignments by notice to the debtor and entirely independent of his consent, and, from the moment of such notice, creates a privity between the debtor and the assignee, amounting to a x>erfect legal tie.

It follows that the reasons underlying the common law decisions quoted, have no apx>lication or existence under our law, and the decisions, therefore, have no ax>plication as authority here.

In a very recent case, decided by Mr. Justice Miller on Circuit, it was held that a check, duly notified to the bank, constitutes an assignment of the fund drawn against, which a court of equity will enforce in favor of the check-holder, although a court of law will not. Bank vs. Coates, 12 Reporter, 514.

Even had the check, in the instant case been drawn in a common law State upon a bank in such State, so that the rights of the check-, holder would have been regulated by the lex loci contractus, yet if the action thereon had, by any means, been brought in our forum, our courts would have looked to, and would have enforced, the equitable right of the check-holder, and would have maintained the assignment. Jackson vs. Tiernan, 15 La. 485.

Here the cheek and notice operate, not merely an equitable but, equally, a perfect legal assignment.

The same case just quoted equally disposes of the objection that the debtor cannot be required to permit his debt to be cut up into fractions and thus to have several creditors substituted for one.

We are not required here to consider the correctness of the decision in Poydras vs. Delamere, 13 La. 98, cited in support of the last object tion, because it does not apply to the case of bank and depositor, the nature of whose contract is, that the bank shall pay out the depositor’s funds, in sums, and to persons designated in the depositor’s checks; and this implies the assent of the bank to the divisibility of its obligation.

In the interests of sound jurisprudence we are compelled to overrule Case vs. Henderson, and to hold, with the District Court, that the Louisiana National Bank acquired a perfect title to the fund in controversy.

This disposes of the claim of the attaching creditor.

Questions of illegal preference in favor of the bank cannot be agitated in this controversy, but must be raised in a different proceeding.

Judgment affirmed, at appellant’s cost.

On Application nor Rehearing.

Appreciating the importance of the question involved as to the status which the holder of a check sustains towards the bank on which it is drawn, we have carefully reconsidered our opinion under the light of the authorities quoted in the learnod’brief for rehearing.

There are few questions upon which authorities have been more conflicting.

In direct opposition to those quoted, are the opinions of both Judge Story and Chancellor Kent. In the matter of Brown, 2 Story Rep. 502; 3 Kent’s Com. p. 105, author’s own note to the 4th edition.

To these we may add the following direct authorities: Lester vs. Green, 8 Bush, (Ky.) 357; Weinstock vs. Bellwood, 12 Bush, 139; Mum vs. Burch, 25 Ill. 35; Union vs. Oceana, 80 Ill. 212; McGrade vs. German; 4 Mo. App. 330; Deener vs. McArthur, 1 McA. (D. C.) 350; Fogarties vs. Bank, 12 Rich. (S. C.) 518. There exist many others.

In his able work on Banks and Banking, Mr. Morse states the condition of the authorities on the subject down to the decision in the Millard case, (10 Wallace) and expresses his opinion, that the preponderance of direct authority was in favor of the holder’s right to sue. Morse on Banks and Banking, pp. 525-537.

This Court had held substantially in favor of the right of the holder. Vanbibber vs. Louisiana, 14 A. 481.

In the Millard case, the Supremo Court of the United States, for the first time, had the question directly presented to it. It decided adversely to the holder’s right, on technical principles peculiar to the common law, and having no place in our system.

If the question, in common law States, is to be determined according to common law principles, it should seem that, in this State, it should be determined according to our law.

The decision is not rested by the Supreme Court on any principle of the lex mercatoria.

This Court, in Case vs. Henderson, and Case vs. Marchand, (23 A. 49, 60) blindly followed the authority of the Millard ease, without comment or discussion.

Wo think it erred therein on principle.

But, if there were doubt, we have now the well-considered opinion of Mr. Justice Miller, one of the most learned judges of the Supreme Court, who himself participated in the Millard decision, holding that a bank check operates an equitable assignment in favor of the holder, which he may enforce against the bank in equity, though not at law. Coates vs. Bank, 12 Reporter, 514.

Wo believe this to be sound doctrine, and, being so, it ends the question, so far as this Court is concerned, which enforces rights known in common law States as equitable rights.” Jackson vs. Tiernan, 15 La. 485.

The conclusion reached is in harmony with common sense and with the principles of our law; and we adhere to it.

Rehearing refused.


text:
    No. 8487.
    State of Louisiana ex rel. Attorney General et al. vs. The Judge of the Twenty-sixth Judicial District, et al.
    This application being for a writ of prohibition only, no other question than that of jurisdiction of the Court, or competency of the Judge, can be raised.
    As no plea to the jurisdiction appears in the pleadiogs, or was passed upon by the lower court, there is nothing before this Court to determine.
    APPLICATION for Writ of Prohibition. Michael Halm, Judge, Respondent.

      Olivier 0. Provostg, for Relators.

      Gervais Leche,' District Attorney, James P.' Augustin, Alfred Shaw, for Respondent.
   The opinion of the Court ivas delivered by

Fenner, J.

This application, being for a writ of prohibition merely, can raise no other question than that of jurisdiction of the Court or competency of the Judge. C. P. Arts. 845 to 854.

Questions of regularity of proceedings are presented by' writ of certiorari. C. P. Art. 855, et seq.

We have nothing to do, then, with any question except the jurisdiction of the inferior court over the cause, without reference to the particular proceedings taken therein.

The present application is disposed of by the fact that no plea to its jurisdiction has been filed in, or passed upon, by the lower court. State ex rel. Larricux vs. Judge, 29 A. 806.

The prohibition prayed for is refused, and the rule discharged at Relators’ cost.

Poché, J., recused, being related to one of the Relators.


author: Poché, J.

text:
    No. 8252.
    Marie L. Cass vs. Charles L. C. Cass.
    In a suit for separation from bed and board by tbe wife, a new trial will not be granted to the husband on the ground of newly discovered evidence of the wife’s adultery, in the absence of any allegation to that effect in his answer and reconventional demand.
    To constitute public defamation in the sense of Article 138 of the Civil Code, it is not necessary that the offensive epithets or words he uttered in public. It is sufficient that they be addressed to tbe other spouse in the presence of third persons, or spoken to other persons in the absence of the party affected thereby.
    A reconciliation of the spouses, after ill-treatment or public defamation, will not ho a bar to an action for separation from bed and hoard, if the acts or causes aro renewed after such reconciliation, the former acts will corroborate the new action.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. Laxarus, J.

      W. 8. Benedict, Speneer é White,,for Plaintiff and Appellee. _

      H. L. Edwards, E. E. Moise, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This is an action for separation from bed and board by the wife, who relies on the grounds of ill and cruel treatmentand public defamation.

The defense is a general denial, coupled with the special averment that this litigation is instigated by plaintiff’s father, and ends with a demand in reconvention for a judgment of separation on the ground of defamation of defendant’s character by the injurious allegations in his wife’s petition.

After a protracted trial, characterized by considerable bitterness and acrimony, the District Court rendered judgment in favor of plaintiff, and defendant appeals.

He calls our serious attention to the error charged against the District Judge for refusing him a new trial, prayed for on several grounds.

Tho serious reason urged was, that of newly discovered evidence; and that evidence consisted of the alleged discovory, since the trial, of his wife’s adultery, charged to have been committed in the State of Virginia, during the summer of 1878.

A correct test of the defendant’s right to a new trial, under these circumstances, is found in the solution of the question of the admissibility of that evidence under tho pleadings.

It is urged that the evidence was admissible under the general denial, which traversed plaintiff’s allegation that she had faithfully observed her duties as a married woman.

After a careful consideration of the authorities cited in support of their argument, by defendant’s counsel, we conclude that this proposition is untenable. None of the authorities extend the doctrine, that proof of adultery will bar the wife’s action for separation, to the right of a new trial for the purpose of introducing, for the first time, the charge of adultery.

Far from alleging adultery, either in his first, or in his supplemental answer, defendant urges as his ground for his reconventional demand, that his wife had defamed him in charging that he had called her a lewd woman; as such a charge implied a doubt of the legitimacy of his children, whom he solemnly recognizes, and for whom he has the greatest love and affection.

We are clear in our conclusion that in the absence of a specific allegation of adultery in a suit like this, the defendant cannot be allowed to introduce evidence of adultery against the plaintiff, who would thus be comp’letely surprised, and deprived of the time or opportunity to prepare her defense against the most heinous charge which can be hurled at a married woman and a mother.

No possible injury could flow from the Judge’s ruling to the defendant, who could have brought at once an action for divorce against his wife, and could have dissolved the bonds of matrimony, before the final disposition of this cause, if he could have proved the severe accusation which he prefers against his wife, in his affidavit for a new trial.

We fully concur with the action of the District Judge on this point, and we shall now proceed to examine the case on the merits.

We have given full and favorable consideration to the law, which defendant’s counsel hold out as the rule of courts, in determining questions of such a delicate nature as the separation of married persons.

We fully concur in their views that courts will not and should not separate spouses, especially when children have been born of their union, for light or trivial causes, or when the evidence shows mutual wrongs between the parties.

Hence, we have read with more than ordinary attention, and weighed witli great care, the testimony found in the record of this cause, impelled with a strong desire to re-unite, if possible, a young father and a devoted mother, for the protection and proper education of their tender offspring, for whom they both feel a fond attachment, and who might prove to them a strengthening tie of affection and union.

But the evidence destroyed that hope, and imposes the painful duty of separating the spouses, by affirming the judgment of the lower court.

The salient facts shown, beyond a doubt, by the record, are: that defendant frequently ill-treated his wife, in various ways, and even struck her on two occasions; and that he repeatedly accused her, in the presence of other persons, of being unfaithful to him, and of meeting other men in adulterous intercourse.

In our examination of this testimony, we have given due consideration to the argument of defendant’s counsel, on the point of condonation, as shown by the reconciliation and co-habitation of the parties in the fall of the year 1879; and if the evidence had failed to show a renewal by the husband of his cruel treatment of his wife, after their reconciliation, our plain duty would have been to reverse the judgment of the lower court.

But such is unfortunately not the case, for the evidence is painfully overwhelming on the point of the renewal of the former scenes, which culminated in April, 1880, in a boisterous and scandalous outburst, during which the defendant unmercifully abused his wife, loudly charged her with adultery with men whom ho designated by names, struck her down, and drove her out of her own room, in the presence of two or three other persons, and then left the house, with the violent declaration that he would never return to her again.

Defendant’s counsel argue that a solitary instance of such conduct will not justify a decree of separation, and at the same time they contend that evidence of repeated instances of such conduct, from December, 1879, to that date, cannot be considered, because such acts were condoned by the wife, as shown by her continuous co-habitation with her husband.

•It strikes us that the rule contended for by defendant is hardly just or logical. If an ill-treated wife complains at the first instance of cruelty, her demand is premature; if she endures her husband’s ill-treatment, during co-habitation, until their living together becomes insupportable, her demand must be rejected, because, forsooth, she lias condoned. Under such an interpretation, the Article of the Code, on the subject of separation, would become a cruel delusion.

The attempt ol' defendant .to destroy the credibility of plaintiff's witnesses, by showing that they were servants, ignorant and of the negro race, cannot succeed, as it would tend to discredit witnesses, for causes unknown to our laws, and repugnant to common justice and humanity.

Their statements on the material issues involved in this case, are consistent and mutually corroborative, and they are entirely and absolutely uncontradicted by any other testimony in the record, or by any direct evidence by other persons charging that those witnesses were not worthy of belief.

The argument, that to constitute defamation, within the meaning of the Code, the offensive epithets or words must have been uttered in public, does not meet with our sanction. We hold that the charge of adultery against a wife by her husband, made in the presence of her servants, and of a visitor, or to another person at the latter’s house, as shown in this record, does constitute a public defamation, as contemplated by our law, for which the injured wife is entitled to the protection of the Courts. Bienvenu vs. Benson, 14 A. 380.

Wo have carefully read the series of plaintiff’s letters to her husband, introduced in evidence against her, for the purpose of proving her con-donation witli past ill-treatment, and for the purpose of showing wrongs on her part.

While we deeplj’ regret the motive which has given publicity to letters containing the most sacred confidence between husband and wife, we must say that we were cousidorablj’ edified with the spirit which pervades them all, and proves to our minds that plaintiff was an intelligent, loving and dutiful wife, whose greatest ambition was for the happiness of her husband and of her children.

The recouventional demand of defendant, on the ground of defamation by his wife, through allegations in her jietition, has no merit.

Jurisprudence has settled that such allegations, even if disproved', cannot be the basis of an action for separation by either of the spouses. Homes vs. Carrier, 16 A. 94; Terrell vs. Boarman, ante 301.

We find no error in the judgment of the lower court, which is, therefore, affirmed with costs.

Rehearing refused.

Levy, J., absent.