text:
    No. 8695.
    Lafayette Folger vs. E. C. Palmer. On Rule vs. Fred Wing, Surety on Appeal Bond.
    On a rule against a surety on a “bond for a suspensive appeal from a money judgment, which was affirmed, the exigencies of the law are satisfied where the writ issued is seasonably returned nulla bona, after demand from the parties and their failure to point out property.
    "VYhere the defendant in rule avers that the defendant in writ owns real property in excess of plaintiff’s judgment, subject to execution and notincumbored to his prejudice, which was pointed out; the burden is on him to prove the existence of such property, the title of defendant to it; its non-alienation and that if*seized, it will realize or net an amount sufficient to pay the judgment in whole, or reasonably in part.
    A judgment creditor is not bound'to seize burdened property pointed out, when the attempt to sell would only result in costs, before proceeding against the surety on the appeal bond.
    The decision on appeal of the rizle against the security cannot bo retarded on the statement made in the brief, that since the judgment below against the security the plaintiff has levied on property of the defendant, the sale of whioh was enjoined and the matter being-on appeal. The appellate court is not bound to wait tin til the determination of such suit, stillless until after it is ascertained whether the writ has or not realized or netted anything.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Breaux & Hall for Plaintiff and Appellee.
    ' Gibson, Hall & Montgomery for Defendant on Rule and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment against a surety on a bond furnished for a suspensive appeal.

The judgment against the defendant having been affirmed on appeal, execution issued against him. The writ was returned nulla bona by the sheriff, after due demand of defendant and plaintiff’s attorney, who stated that they knew of no property to point out for seizure to satisfy the writ.

A rule containing proper averments was then taken by the- unpaid ■ judgment creditor on the surety, calling on him to show cause why judgment should not be rendered against him for $3,586.69, with interest from January 6, 1877, and costs.

The answer to the rule denied due and legal demand from the principal, the. sufficiency an<l correctness of the return, and averred that the defendant has considerable personal and real property in the State, •largely in excess.of plaintiff’s judgment, subject to execution and not encumbered to the predjudice of plaintiff, which was pointed out. The defendant in rule further says, that he will advance all necessary costs to procure the enforcement of plaintiff’s judgment in seizing and sell■ing such property, and to enforce which he stands ready and tenders all required indemnity. ■ ■ " •

The rule was made absolute, it is claimed, erroneously.'

. The return of the sheriff contains the averments of fact required in such cases, namely : ho property found and demand from the parties. 13 An. 264; 8 An. 141; 28 An. 719; 30 An. 384.

The defendant in rule has not shown that the defendant in writ owned property which could have satisfied plaintiff’s judgment.

A certificate of mortgage, taken in the name of the defendant against certain sixteen lots in the First District of the City, covers more than four pages of the transcript, and recites inscriptions for .upwards-of $85,000, exclusive of interest and costs.

The value of the property described in the certificate was not shown. Neither was the title of defendant to it produced. The burden to establish title and value was on the surety, defendant in rule, who, by his averments, had undertaken to do so. There is no evidence that any amount of money was tendered by the surety as costs, for the discussion of any property of the defendant.

During the trial of the rule, counsel for the surety pointed out the property described in the mortgage certificate, and there was made an admission, that if an absent witness was present, he would prove that the mortgage on that property had been paid, -fn the course of the trial, the defendant in rule asked for time .to produce the title and a certificate of non-alienation, which was refused. He then took a bill of exception to the ruling.

In the absence of the title of the defendant to the property pointed out, of a certificate of non-alienation, and of proof that if seized and offered for sale, it would realize enough to pay plaintiff reasonably, at least in part, there was no obligation on his part to instruct the sheriff to levy the writ on the property. The court ruled - right in declining the delay asked.

It is settled, and correctly, that a judgment creditor is not bound to seize burdened property pointed out, when the attempt to sell would only result in costs, before proceeding against the sureties on the appeal bond.

The defendant in rule states in his brief that, since the judgment on the rule against him, the plaintiff has levied his writ on property of the defendant, who has enjoined it, and that the present issues should not be determined before those involved in the case alluded to, which is before this Court, are settled.

Conceding that we could take notice of the suit to which reference is made and to which appellant does not claim to be a party, it is evident that the decision of the instant controversy cannot be delayed to await the determination of the other one and be 'further stayed until it is ascertained whether the property has or not realized enough to pay plaintiff.

It is clear that if the surety pays the creditor, he will be subrogated to the latter’s rights against the principal and his property. In that eventuality he will have full opportunity to do for his own relief that which he says the plaintiff should and can securely do to obtain a full satisfaction of his' judgment.

The appellee has prayed for damages on the ground that the appeal is frivolous 5 but we do not think that he is entitled to recover any.

Judgment affirmed with costs.

Rehearing refused.

Mr. Justice Fenner recused, having been of counsel;


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8693.
    Jules A. Florat vs. Thos. H. Handy et al.
    An action lies to annul a money judgment against a surety on a sheriff’s bond, when it is proved that since the joining ofissue, the surety bad paid, under judicial compulsion, the fall amount for which he had signed the bond. Maroy vs. Praeger, 34 An. 54, affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      J. Q. A. Fellows for Plaintiff and Appellant.

      W. S. Benedict for Defendants and Appellees.
   The opinion of the Court -was delivered by

Bermudez, C. J.

This is an appeal taken by the original plaintiff in the case from a judgment rendered in favor of one of the original defendants, a sheriff’s surety, annulling the original decree, on the ground that the surety has paid, under irresistible legal pressure, more than the amount for which he had bound himself on the sheriff’s bond ($5,000.)

Florat recovered judgment against Handy, sheriff, and his sureties, among whom, Henry, for $4,666.90, with interest and costs. Prior to the signature of the judgment, Henry moved to set it aside and reopen the case, on the ground that he had paid more than the amount for which he was liable on the bond.

Tlio application was refused, the Court saying, that Henry could not be prejudiced thereby, as he could show a settlement of his liability on the bond and have the judgment set aside as to him.

The judgment was signed. On its becoming final, execution issued. Henry, on the ground already stated, sued out an injunction, praying for the nullity of the judgment and a release of his liability under it.

Florat answered by a general denial, pleading specially res judicata and no right of action in Henry to annul the judgment.

There was judgment in favor of Henry, and Florat has appealed.

On the trial of the injunction, Henry proved that, since the joining of issue, he had paid $5,038.42, at different dates and in various sums.

The defense of res judicata could not hold. The judgment invoked was that against Handy and his-sureties. It does not appear that the payment alleged by Henry, in his injunction proceeding, was set up in the case and passed upon by the judgment rendered. If it be res judicata, it can operate only on the issues presented. The other defense of no right of action is not better founded.

The law expressly permits an action in nullity of a money judgment, on exhibition of a receipt previously lost proving payment and extinguishment of the claim, although such proof was not administered on the trial of the main case. C. P. 613.

The learned counsel of defendant in injunction has taken great pains to gather many of the numerous authorities with which our jurisprudence teems, to establish the proposition advanced by him and which is not denied, that anything that might have been pleaded before judgment cannot be allowed to be set up as a defense to the execution of the judgment.

The difficulty in the case consists in applying that theory to the case at bar. Could Henry have raised the defense which he now sets up when he joined issue in the main action 1

The question is easily answered in the negative. The answer was filed on November 1st, 1879, andthe payments run from November 24th, following, down to April 23d, 1880. How could he have averred on November 1st facts which only occurred subsequently? It is questionable whether, even if they had existed prior, he could consistently have %et them up in the defense which lie and his co-sureties filed to the action. If he could not do so then, he could not do it subsequently. In any case, the record shows that he attempted to show the payment before the judgment was signed and that his right to do so, recognized as it was, nevertheless was reserved for future action.

The ruling of the present Court, in Marcy vs. Praeger et al., 34 An. 54, clearly relieves a sheriff’s surety from payment in excess of his subscription in the official bond.

It would he against good conscience to execute the judgment enjoined, and the defendant in writ is entitled to relief.

We find no error in the judgment appealed from, which is affirmed with costs.

Rehearing refused.


author: ■ Bermudez, C. J. Fenner:, J.

text:
    No. 8748.
    Jean Torres et al. vs. Felix Falgoust.
    Fault is imputable to an appellant, owing to deficiencies in the transcript of appeal, where it appears that the transcript was prepared in part by appellant’s counsel, who had the making of it under his control and supervision.
    A transcript is fatally incomplete, when it does not contain copies of certificates of registry of acts which, according to the note of evidence, were introduced in proof, and where it does not show that plans, bound with it, and bearing no character of authenticity or filing, are identically those received in evidence.
    A motion for a certiorari to perfect the transcript, made after a motion to dismiss has been filed, and on the day of trial, cannot be granted where the transcript is defective by the fault of the mover.
    APPEAL from the Twenty-second District Court, Parish of St. James. Oheevers, J.

      Gluts. F. Olaiborne and Bobt. G. Fugué for Plaintiffs and Appellants:
    An appeal should not be dismissed because documents merely offered, but not filed, have not been transcribed in the record. 32 An. 1076 ; 2 L. 165; 11 An. 72.
    A clerk has no right to include documents in the record, which have not been produced and filed. If be does include them, the Court cannot consider them. 32 An. 1076.
    Plans incorporated into and bound up with the other pages of the transcript of appeal, and which are repeatedly referred to in the index and the note of evidence, as being at the pages where they are actually found, which bear upon their face the marks or letters by which they were designated in the note of evidence and which show when and by whom they were offered, are sufficiently identified and authenticated to permit the Court to consider them as parts of the record, where the clerk certifies that the “foregoing pages contain a correct transcript, etc.,’’and there is no pretense that the plans are not true copies, and no charge of fraud or malpractice, etc.
    Because an appellant, or his counsel, takes an active part in the preparation of a transcript of appeal, is not a cause of dismissal. 31 An. 428. The law favors, does not punish the vigilant.
    'Whether written by the clerk, or by another for him, a transcript of appeal and the certificate thereto are the transcript and certificate of the clerk himself. 31 An. 595.
    Where a transcript was incomplete by the fault of an appellee, who had withdrawn papers from the record, the case was remanded. 13 L. 82; 1 An. 246; 16 An. 374; 1 An. 40.
    Affidavits of reputable counsel are favorably entertained by this Court, in proper cases. 29 An. 384.
    A certiorari should always be granted when prayed for in season, and gross negligence is not shown. O. P. 898; 19 An. 81; 2 An. 390; 1 An. 41'7; 4 An. 534; 11 L. 382; 29 An. 822; 33 An. 875; 31 An. 595; 10 h. 409; 5 An. 576.
    Time is given to the next term, if necessary, to carry out or to cause a certiorari to he executed. 12 L. 437, 537.
    Appellees may themselves apply for the writ. 5 M. 668; 13 An. 288. 479.
    The law favors appeals, and in doubtful cases courts invariably interpret the law liberally in favor of the appeal. 19 An. 81; 2 An. 390; 1 An. 417; 4 An. 534 ; 11L. 382; 29 An. 823; 33 An. 875 ; 31 An. 595; 10 An. 235 ; 9 L. 472; 29 An. 833.
    Errors of an attorney may always be corrected if justice require it, and it can be done without injuring his adversary. 5 An. 576; 7 S. 647; 10 L. 409 ; 10 Wall. 425.
    Although a transcript may be deficient, yet the Court may consider and decide points of law raised by the bills of exception in the record. 10 L. 555; 13 L. 83; 7 L. 173; 12 L. 415; 12 An. 332.

      Sims & PocM for Defendant and Appellee:
   On Motion to Dismiss.

The opinion of the Court was delivered by

■ Bermudez, C. J.

The defendant and appellee moves to dismiss this appeal, on the ground of deficiencies existing in the transcript, by the fault of the appellant.

The motion states in what particulars the record is incomplete, and the circumstances under which it was prepared.

Its averments are verified by the oath of counsel and by that of the clerk of the District Court, from which it appears that the transcript was made in part by the attorney of appellant and under his direction.

Appellant’s counsel submits in opposition or explanation, a lengthy affidavit, designed to exonerate his client and himself from all imputation of fault and negligence.

On the day previous to that on which the motion to dismiss was made, the appellant presented a petition at chambers to this Court, enumerating documents not included in the transcript and which should have been copied in it, prayed for an order to the clerk of the lower court to transmit a certified copy of the same to this Court. At the opening of the Court on the day on which the case was to be argued, producing a copy of the documents, the appellant was permitted to file them as a supplement of the transcript. This copy appears to satisfy in part the complaint in the motion to dismiss, of the absence of the documents thus copied and transmitted.

On that same day, the 29th of January, the appellant guardedly moved the Court for an order to the clerk of the lower court, having in view to obtain from him a copy of certificates of registry of certain authentic acts introduced in evidence, for the copying of which blanks had been left in the transcript, and also to authorize him to certify properly two certain plans, bound in the transcript and which bear no appearance of authenticity. The granting of the motion was opposed by counsel for appellee. The two motions : that to dismiss and that just mentioned, were then taken under advisement.

The certificate of the clerk is not full and complete, as the law requires. It attests that certain affidavits and writs of arrest filed in evidence were not included in the transcript, because they were not found. It further states, that certain certificates of registry mentioned as offered in evidence were likewise left out, because they were not produced or filed in evidence. It is silent as to the two plans, which are not identified with the case by any indorsement or filing.

The appellee does not complain of the absence of the affidavits and writs, which are besides accounted for as not found. For their loss or misplacement the appellant could not be held responsible.

The acts and certificates of registry were put in evidence, as the “ note ” taken at the time minutely shows. Neither the clerk nor the appellant can be heard to say the contrary, for the transcript is certified by the clerk, as made by him, and is brought up by the appellant as a correct one, with the exceptions therein stated.

The declaration of the clerk in his certificate is unauthorized, as it contradicts ex parte the note of evidence which unequivocally states that the certificates were filed in evidence. This note or entry is made in open court in presence of the parties, is their property and cannot be gainsaid in that manner by the clerk. ,

The clerk does not say that those acts and certificates were mislaid or lost, or could not be found. If such had been the case, he should at least have so certified.

His omission to copy these acts and the certificates, and the failure of the appellant to have had them embodied in the transcript, cannot however be excused, for the obvious reason that the acts were passed and the registries made by the parish recorders, whose successor he is and whose archives he keeps. Const. Art. 121. They were accessible. It would therefore have been easy for him to have supplied, as in duty bound, the deficiency to which he certifies and of which complaint is made. . In such a case, it would not have been difficult for the appellant to have had the clerk to fulfil that duty and thus shielded himself from the attack which is now made upon him.

The .plitns bound in the transcript should have been certified as copies of originals, or filed as introduced in evidence and annexed to the transcript by consent of parties, or for other good reason.

It is then manifest that the transcript is deficient.

The question next presented is simply: whether it is so by the fault of the appellant and being such, the latter can on the day of the argument apply successfully for a certiorari, which, if granted, necessarily continues the case over to the next term, that is for one year, presumably to the injury of the appellee, in whose favor the judgment of- the lower court was rendered.

. There can be no doubt that it is shown the making of the transcript of appeal was assumed by the appellant and his counsel; that nearly one-half thereof was made by the latter and the other portion by his direction ; that the certificate at the end of the transcript was written out by the counsel and signed by the clerk.

The appellant and his counsel were bound to know, and therefore knew, of the deficiencies complained of and which the blanks left unfilled loudly announced.

Those blanks could have easily been filled, and the plans could without trouble have been authenticated at any time before the completion of the transcript and even since, up to the day of argument, had proper steps been taken therefor.

The remedial and curative Act of 1839, now Article 398 of the Code Practice, was designed for the relief of appellants not in fault, but was not intended for the benefit of those who can, as in this case, be successfully charged with dereliction of duty. In such cases, where no blame can be attached to the appellant, this Court has allowed relief, even after the submission of the ease. 15 An. 717; 3 R. 1; 4 An. 276; 33 An. 653.

In the case of Hoover vs. York, 33 An. 653, the appeal was dismissed by this Court, because the transcript charged with incompleteness by the fault of the appellant, was shown to have been made under the direction of appellant’s counsel.

It takes no argument to hold that a /oriioiTmust such be also the case where the transcript was made by the counsel, to a considerable extent, and controlled by him in its other parts.

It would be unjust to allow the appellant to reap an advantage from a state of things which he was instrumental in procuring.

The penalty for such a fault is the dismissal of the appeal and the consequent refusal of continuing the ease to the next term, to permit the certiorari to be issued and carried out.

It is, therefore, ordered and decreed that the motion for a certiorari be refused, and that the motion to dismiss prevail, and accordingly it is ordered that this appeal be dismissed, at the cost of the appellant.

Poché, J., recuses himself, having been of counsel; replaced by Hon. W. T. Houston, Judge Civil District Court, Parish of Orleans, the remaining Justices being unable to agree. Const. Art. 85.

Justices Todd and Fenner dissent.

Dissenting Opinion.

Fenner:, J.

There can be no doubt that, under the clerk’s certificate as appended to the record, and without reference to the extraneous affidavits filed in support of the motion to dismiss, the appellant would, be fully protected against the penalty of dismissal on account of the incompleteness of the record.

Those affidavits, though tending to impute the defects to the fault of appellant’s counsel, are contradicted by the counter-affidavit of the latter, which, being in accord with the clerk’s official certificate, should in my judgment prevail.

Far from being in fault, I am satisfied that the attorney of appellant has exerted unusual labor and diligence to secure the timely and proper bringing up of his appeal. The defects which exist wére susceptible of easy remedy, were not, in my opinion, attributable to his fault, and should not defeat his appeal.

I, therefore, dissent.

Todd, J., concurs in this opinion.

Bermudez, C. J., and Justices Manning and Houston concur in refusing the rehearing asked in this case.

Justices Todd and Fenner dissent, and think that the rehearing 0 should be granted.


author: Fenner, J.

text:
    No. 8704.
    R. E. Rivers vs. The New Orleans Water Works Company.
    One who, without error or duress, has paid an excessive demand, cannot maintain an action for repetition thereof. Arts. 2301'and 2302, C. C., must be read together.
    So far as that portion of plaintiff’s demand which was paid under duress is concerned, we see no reason to disturb the finding of the District Judge on the facts.
    A PPEAL from the Civil District Court for the Parish of Orleans. £X Tissot, J.

      Gibson, Hall & Montgomery for Plaintiff and Appellant.

      Albert VoorMes for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 8864.
    The State of Louisiana vs. Robert L. Belden.
    Section 119, Revised Statutes, is a penal but nota criminal statute.
    An attorney-at-law falls within the category of persons named in Sec. 905 Rev. Stats., and is. sufficiently described in an indictment as an attorney.
    An attorney who lias wrongully used or disposed of money collected for his principal may-be convicted of embezzlement, even though he acknowledged its receipt.
    This Court will not review the ruling of the Judge on a motion for a new trial, on the ground of newly discovered evidence, in absence of a bill of exceptions bringing np the ruling and the evidence. 32 An. 842.
    APPEAL from the Criminal District Court for the Parish of Orleans. Lusenberg, J.

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

      B. B. Belden, propria persona.

   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a conviction of embezzlement.

The Judge was asked to charge as follows: if the attorney duly acknowledge the receipt of money, he cannot be convicted of embezzling it, however he may appropriate it to his own use.” He refused to give this charge and told the jury: “ the reverse of the proposition so stated is the law, that if the attorney should wrongfully and fraudulently dispose of the money collected by him for his principal, he would be guilty of embezzlement, even if he did acknowledge its receipt.” These rulings were excepted to and are assigned as errors. They are manifestly correct. Embezzlement is a statutory offense, established by Section 905, Revised Statutes, a reference to which is sufficient to show that it fully supports the charge of the Judge.

Under a simular statute in Massachusetts, it was held, that “ to constitute the offense, it is not necessary there should be a demand for the money alleged to be embezzled, or a denial of its receipt, or any false account, or false statement or false entry, or refusal to account.” Com. vs. Tuckerman, 10 Gray, 173.

The statute there used the words : “ if any officer, clerk, etc., shall embezzle or fraudulently convert to his own use, or shall take and secrete with intent to embezzle or convert, etc.”

The Court said: “the several circumstances above mentioned do not in fact constitute any part or element of the offense. They are facts and circumstances admissible in evidence as bearing upon the question of a fraudulent intent, but for all other purposes they are wholly immaterial.” Id. p. 208. Our statute reads : Any * * * attorney * * * who shall wrongfully use, dispose of, conceal or otherwise embezzle, etc.”

Either of these alternative clauses constitutes a crime denounced by the statute, the word “ wrongfully ” applying to each; and, as in the Massachusetts cases, the circumstances of denial or acknowledgment of receipt, is not an element of the offense, but merely material as affecting the question of wrongful intent. See Bishop on Stat. Crimes, Sec. 383; Bishop on Crim. Law, Sec. 373.

The various grounds of the motion in arrest of judgment are without merit. An attorney-at-law unquestionably falls within the category of persons named in the Statute; and Section 119, Revised Statutes, under which it is said the indictment should have been framed, is not a criminal Statute.

The other objections to the form of the indictment, viz : 1st, that it was not enough to state that defendant was an attorney, but it should have been averred that he was an attorney-at-law; 2d, that the indictment did not show from whom the money was received; 3d, defective description of the money alleged to have been embezzled, have no merit. See Rev. Stats., Secs. 1064, 906,1049, 1061.

The assignment of errors filed in this Court substantially repeats hose already ruled on.

The question as to whether the evidence established that defendant withheld the money under a claim of right to do so, is not within our cognizance. No question of law on that subject is presented by the record. The same observation applies to the circumstance alleged, that the prosecuting witness had instituted a civil proceeding for the recovery of the money.

. It only remains to consider the motion for a new trial, on the ground of new discovered evidence. We may dispose of this by a simple quotation from one of our own decisions: “ In the instant case, both the evidence and the overruling of the motion for a new trial are in the record; but as the matters urged as grounds for a new trial, are not presented in the form prescribed by long existing jurisprudence, (viz: by bill of exceptions), we do not feel authorized to pass upon the same, and, therefore, cannot disturb the refusal complained of.” State vs. Nelson, 32 An. 842.

After'a careful study of all points made, we can find no error authorizing a disturbance of the judgment and sentence herein.

Judgment affirmed.


text:
    No. 8870.
    B. R. Forman vs. The Board of Assessors and J. D. Houston, Tax Collector.
    There exists no legislative authority for the assessment or levy of an income tax, under the existing revenue and assessment laws.
    A PPEAL from the First City Court of New Orleans. Skinner, J.

      B. li. Forman and Bayne & Denegre for Plaintiff.
   The opinion of the Court was delivered by ,

Fenner, J.

The question involved in this case is the constitutionality or legality of a tax on the income of plaintiff.

We have no occasion to determine whether, under the Constitution of 1870, the legislature has power to levy au income tax. That question will be determined when presented in such manner as to render its decision necessary.

For the purposes of this case, it is sufficient to say that the legislature has not assumed to exercise such power.

. Taxation is exclusively a legislative power, and, however clear the power or even the duty of the legislature to levy taxes on any particular species of property, until that power has been exerted, the burden cannot be imposed. The legislative intention must be explicitly and distinctly shown, and cannot be extended by implication beyond the clear import of the language used. Cooley on Taxation, pp. 201-2.

We scan the provisions of existing laws relative to taxation and assessment of property in vain to find any expression of a legislative intention to assess or to tax income. Such taxation is of a peculiar character, requiring special provisions for defining and ascertaining the income to be taxed, and cannot be considered as falling within the scope of general provisions touching the assessment and taxing of property.

The absence of any express reference to income, and of all appropriate provisions for defining and ascertaining the income to be taxed, negatives the legislative intention to levy such tax, and leaves the action of defendants unsupported by legislative authority.

Judgment affirmed.


author: Todd, J.

text:
    No. 8564.
    Succession of John Sadler vs. Boyle J. Henderson.
    Where a man dies, leaving a widow in community and one minor child issue of the marriage, and the mother qualifies as natural tutrix and remains in possession of the estate, she can, by the authority of the Judge under the advice of a family me'eting, borrow money to pay the debts and charges upon the estate, and mortgage property to secure the loan. The property is regarded as the effects of her ward administered for his ultimate advantage.
    Where there is no tutor, the minor is properly represented in the proceeding to foreclose the mortgage by a curator ad hoc. C. P. 116; 34 An. 885.
    Though, in an executory proceeding, the notice to the debtor is issued by the sheriff instead of by the clerk, it is not such an irregularity as to justify the annulling of the sale made under the proceeding, nor does the failure of the record to show that the under tutor took the prescribed oath, where it appears he was appointed and was present at the family meeting and approved the proceedings, constitute a sufficient ground of nullity.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Tissot, J.

      John Bay and Albert Voorhies for Plaintiff and Appellant:
    3. The Judge should, in his order directing letters of tutorship to issue, appoint an under tutor to the minor. O. 0. 0. 300.
    2. The homologation of proceedings of a family meeting, when the under tutor was not present to advise and recommend at the family meeting, would be a nullity and could not be the basis of a legal title. O. C. C. 302; Stafford vs. Villain, 10 La. 328; Comeau vs. Babin, 6 H. S. 454.
    3. A writ of seizure on the foreclosure of a mortgage cannot legally issue until three days after the notice served on the debtor, according to C. P. 735-6. The sheriff cannot make out such notices-; it should be done by the clerk and notice served by the sheriff. 29 An. 262; 30 An. 84.
    4. When the debtor iu a mortgage is absent or unrepresented, the Judge, at the request of . the plaintiff, shall appoint him an attorney, to whom notice of the demand shall be given. as directed in C. P. 735-6. This must be done iu the petition for order of seizure, and before the writ is issued. C. P. 737. Such attorney must take an oath to discharge the duties required of him, which was not done in this case.

      T. Gilmore <& Sons for Defendant and Appellee:
    1. A third person in good faith, lending money to a minor by authority of a court of competent jurisdiction, is protected by the decree, whether it be right or wrong, honest or fraudulent. Cane vs. Cawthorn, 32 An. 953, and cases there cited; Succession of Delerno, 34 An. 39.
    2. And where the evidence shows that the money has been applied to pay the debts of the • succession falling to the minor, and administered for his benefit by his tutrix, a subsequent tutor cannot maintain an action to annul such proceedings, without offering to restore the money so obtained and applied. Chambers vs. Wortham, 7 An. 113; Shields vs. Lafon, An. 135; 3)’A quin vs. Coiron, 6 An. 684; Brown vs. Bouny, 30 An. 174.
    3. A tutor has no right of action to annul, certainly not without the authorization of a family meeting, judicial proceedings had at the instance of a former tutor for the alienation of the minor’s property. The action is personal to the minor upon his attaining his majority. G-raham vs. Hester, 15 An. 148; Calmes vs. Caruth, 12 R. 665.

      4. When a tutor administers a succession falling to a minor, he is not a representative of the succession, hut of the minor. Bryan vs. Atobeson, 2 An. 463; Succession of Weber 16 An. 420-3. %
    5. The widow in community was a necessary party to the suit.
   Tlie opinion of the Court was delivered by

Todd, J.

This is an action brought by the dative tutor of the minor heir of John Sadler, deceased, administering the succession of the deceased, to annul the sale of certain property made under executory proceedings instituted by the defendant, who was the purchaser at the sale.

The facts relating to the controversy are these:

John Sadler died in the City of New Orleans, leaving a widow and one minor child.

The widow qualified as natural tutrix of the minor, and caused an inventory to be made.

Shortly after her appointment she applied in her capacities as natural tutrix, and widow in community to the Second District Court of New Orleans, for permission to mortgage certain property belonging to the succession, to raise money to pay the debts thereof, alleged to amount to $3,735.56 (annexing to her petition the items thereof) stating as a reason therefor, that in consequence of the depreciation of the property, it was not advisable to sell, and that she had no money to discharge the debts. A family meeting was ordered, which advised the borrowing of $4,000, and that certain property designated be mortgaged to secure the loan.

The proceedings of this meeting, on the application of the widow and tutrix were duly homologated. In accordance therewith, the money was borrowed from the defendant, and the mortgage given.

After the debt matured, executory process was taken out and the property mortgaged sold thereunder, and the defendant as stated purchased the same.

The following are the grounds of nullity urged against the sale:

1st. That the Sixth District Court was without jurisdiction to enforce the mortgage.

2d. That the mother, having married Kelly, she lost the tutorship, and that the minor was unrepresented.

3d. That the Sixth District Court was without authority to appoint a tutor ad hoc.

4th. That the tutor ad hat did not qualify.

5th, The clerk did not issue the demand for payment.

6th. The property was sold at a sacrifice.

7th. The mortgage note did not constitute a debt of the minor.

8tli. The succession was under administration and the widow and minor child had not been put into possession.

9th. A portion of the property was the separate property of the husband; and the inventory showed an active mass of $29,665, in which it was erroneously stated that all the property was community, and that it (the inventory) showed no passive mass.

- 10th. That the under tutor never qualified, although he acted in that capacity. '

. 11th. That the debts due to Sadler’s estate were more than sufficient to pay the debts of his succession, and that no account of administration was filed.

The answer was a general denial, an averment that the proceedings were regular and the sale valid, and it was further alleged that the money borrowed had been used to discharge the debts of the succession, and that no action would lie to annul the sale without an offer to return the money advanced and used for the aforesaid purpose, which had not been done.

First. We think the 6th District Court of New Orleans had jurisdiction to enforce the mortgage. See Soye vs. Price, 30 An. 93. The property of the succession of John Sadler, deceased, when the mortgage was given, was in the possession of the tutrix of the minor heir of the deceased, who was administering in said capacity. In the case of the Succession of Delerno, 34 An. 39, this Court held, that under a similar ■state of facts as presented in the instant case, the tutrix was authorized to borrow money to pay the debts, and grant a mortgage to secure the loan. See also Cane vs. Cawthorn, 32 An. 953; Bryan vs. Atchison, 2 An. 463; Succession of Weber, 16 An. 420. Under these authorities, the property administered by the tutrix is treated as effects belonging to the ward, and administered for his ultimate advantage.” This is so fully settled as no longer to admit of controversy.

This view of the subject confirms the propriety of the ruling in Soye vs. Price, above cited, that the proceeding to foreclose the mortgage •was properly instituted in the 6th District Court, and that court had authority to appoint the curator ad hoc to represent the minor in the proceeding.

Second. The appointment of the curator ad hoe was made after the ■tutrix had forfeited the tutorship by a second marriage, and such appointment was a proper one under the circumstances, as we have recently held in Keenan vs. Ahern, 34 An. 885; C. P. 116.

Third. It is true that the clerk did not issue the notice to the debtor, or demand of payment prior to seizure, but the same was made by the sheriff. Whilst this was an irregularity, it has been held that it constitutpd no ground to annul tlie sale. Pike vs. Hart & Hebert, 29 An. 262, 206; Billgery vs. Ferguson, 30 An. 86; 9 R. 12.

Fourth. It is charged that the under tutor, who was present at the family meeting advising the mortgage, though appointed by the Judge, never qualified. He acted in that capacity, both at the family meeting and in the proceeding for its homologation—and granting that the burden was upon the plaintiff to prove that he was sworn, and that such an appointment can be attacked collaterally, it was held in cas.e of Lalanne’s Heirs vs. Moreau, 13 L. 431, that when there is a formal decree of a proper court ordering the sale, and recognizing its necessity, upon advice of a family meeting, the sale will not be annulled for alleged informalities, among which were, that the under tutor did not take the oath required by law till eleven days after the deliberations of the family meeting.”

■ The other grounds of nullity,' above recited, have not been seriously urged, and we think they require no special notice. We discover no force in them.

The judgment of the lower court was in favor of defendant. For the reasons given, it is affirmed with costs.

Rehearing refused.


author: Bermudez, C. J. Todd, J.

text:
    No. 8812.
    Heirs of F. V. Gallaugher vs. Hebrew Congregation.
    A recorded judgment operates as a judicial mortgage ou real estate acquired by tbe judgment debtor, though his act of purchase be not recorded. The judgment creditor can, by tbe bypotbecary action, subject tbe property to tbe satisfaction of bis judgment, in case of tbe sale or transfer thereof. Tbe purchaser of tbe real estate thus burdened has no right to urge defences against tbe judgment and mortgage which bis vendor conld not have set up.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      O. D.Favroi and John R. Ramon for Plaintiffs and Appellees.

      Burgess & Burgess and R. I). Beale for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an hypothecary action based on a judicial mortgage. From a judgment against them, the defendants have appealed.

On the 18th of July, 1872, Gallaugher recorded a judgment which he had against Delacroix. On the 1st of October, 1875, Delacroix acquired real estate at the place of registry. His title to it was filed with the Recorder on the 12th of September, and recorded on the 15th following, in 1876. On the day of its filing he sold the property to the defendants, the act being recorded on the 16th of the same month and year, so that when Delacroix sold, G-allaugher’s judgment was recorded against him and his act of purchase had not been recorded.

The legal question presented is simply: whether a judicial mortgage reaches and affects real estate situate at the place of registry, to which the judgment debtor has only an unrecorded title.

The defendants claim that as Delacroix’ act of purchase was not recorded in the Conveyance Book at the time he sold them the property , sought to be reached, the judgment of plaintiffs did not encumber the real estate.

In support of that theory, they invoke Article 2266 R. C. C., which is a reproduction of the Act of 1855. It provides that “ all sales, contracts and judgments affecting immovable property, which shall not be recorded, shall be utterly null and void except between the parties.”

The paragraph does not stop there. It continues and declares, that “ the recording may be made at anytime, but shall only affect third persons from the time of the recording.”

A preceding Article, 2264, directs that “ no notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder or register of conveyances of the parish where such immovable property is situated.”

On reading those provisions of law, the legal mind remains satisfied that the object of the legislature in requiring registry of sales, contracts, notarial acts and judgments concerning and affecting immovable property, was to protect third parties against the effect which such acts would otherwise produce. They never were designed to prevent such property from passing from vendor to purchaser, or prevent general mortgages from reaching and encumbering real estate acquired under an unrecorded title.

The law simply means, that sales, contracts, acts and judgments, touching or susceptible of encumbering immovable property, shall not affect third parties, that is, operate to their prejudice, but shall be valid between the parties.

It can have no other rational meaning. Otherwise, the unavoidable consequence would be that the legislature, instead of promoting public justice, deliberately proposed to become the handmaid of fraud, deception and spoliation.

Real estate, by whatever mode acquired, whether by purchase, exchange, giving in payment or any other contract, passes absolutely and is binding against the world, be the act recorded or not, subject to qualifications as to the creditors of the vendor and bona fide purchasers from him without notice.

Where the act is recorded, those creditors cannot roach and seize the property, unless by the hypothecary action, if it was subject to a privilege or mortgage in their favor at the time of registry, or by the revocatory action, on proper averments and proof.

Where the act is unrecorded, those creditors are not presumed to know of its existence, or if they know of it, they are not bound to respect the transfer. . They are authorized to ignore it, and to proceed directly against the property as though the transfer had never taken place and the property unquestionably belonged to their debtor.

This was expressly decided in the case of Lyons vs. Cenas, 22 An. 113, in which execution had been levied on real property inherited by the defendant, and which, it was claimed, had been acquired from the succession by the party in possession, whose title had however not been recorded previous to seizure. As to the creditor there had been no mutation.

The Court said substantially :

According to the law and the well established jurisprudence, the act of sale set up as conveying title to the plaintiff could have no effect against third persons, until duly recorded in the parish where the property is located, and consequently as to them the plaintiff was not the legal owner thereof at the date of the seizure.

The injunction was dissolved, and the seizure was allowed to proceed.

Where a vendor sells the same property to different purchasers who are in good faith and without notice, the property passes legally however to him whose title of purchase is first recorded.

While the creditors of the vendor cannot be prejudiced by an unrecorded transfer, those of the purchaser may be benefitted by it, subject however to the superior rights of the former.

The registry of the transfer is no condition precedent essentially required to subject the real estate to judicial or legal mortgages inscribed against purchaser and vendor, and which it is admitted would, beyond doubt, reach the property in case of a registry of the title in the proper Conveyance Book.

The law is, that judicial and legal mortgages registered against the purchaser affect and encumber the property from the very instant of purchase, whether the deed be recorded or not, but rank subordinate to the encumbrances existing on the property against the vendor at the moment of the transfer. 4 R. 71; 11 R. 154; 10 L. 301; 2 An. 775; 4 An. 411, 569; 14 An. 701; 20 An. 80; 22 An. 113; 24 An. 81; 30 An. 727.

Purchasers from one whose title is unrecorded and against whom mortgages are registered, affecting the real estate bought by them, have no one to blame but themselves for failing to procure seasonably from the recorder a certificate establishing the status of the property, in point of alienation and encumbrance. Had the defendants in this-case required such certificate instead of formally waiving it, they would not have found themselves in the difficulties in which they have since been involved.

The defendants have no right to the property in question, Which-they did not acquire from Delacroix. Such as the property was when Delacroix sold it to them, it passed to them. At that time it was clearly burdened with the judicial mortgage in favor of G-allaugher or his heirs. As he could not have disputed it, so are they not to be heard to contest it. What operated against it then, has continued to burden it. It is therefore in their hands subject to the judicial mortgage in favor of Gallaugher’s heirs.

We take notice of the judgment of this Court, this day rendered in the case of Givanovich against these same defendants, but are not to be considered as intimating in the least as to which of the plaintiffs here' and the plaintiff there, in case of a conflict, will be entitled to a priority;

It will be time enough to solve the difficulty when it shall be' presented.

-The ruling invoked in 27 An. 337, in so far as -it may be at variance with the views expressed in this opinion, must be considered aS overruled.

There being no error in the judgment appealed from; it is affirmed with costs.

Todd, J., dissents.

Dissenting Opinion.

Todd, J.

This is an hypothecary action to enforce a judicial mortgage against property in possession of the defendant.

The facts are these:

E. Y. Gallauglier, now deceased, obtained a judgment against Delacroix, which was recorded in the proper book of mortgages on the I8th July, 1872.

On the 1st of October, 1875, Delacroix purchased the property sought to be affected by the judicial mortgage resulting from the recordation of this judgment; but the act of sale was not recorded until the 15th September, 1876.

On the 12th September, 1876, Delacroix sold this property to the Hebrew Congregation, the defendants herein, and on the same day the act of sale was inserted and filed for record in the Recorder’s office, but was not recorded till the 16th of same month, (September, 1876).

The defendants, in answer to the plaintiffs’ petition, among other defenses, urge that the property in question never became subject to the judicial mortgage of the plaintiffs, because the title of Delacroix, the judgment debtor, to the property, was not recorded till after its purchase by defendants, and that, whilst the title of said judgment debtor was unrecorded, the mortgage did not and could not operate thereon; and before it was recorded defendants’ right thereto had fully vested under the purchase aforesaid.

The legal question presented is, whether a judicial mortgage will take effect upon property to which the debtor has no recorded title, to the prejudice of a Iona fide purchaser from such debtor, whose purchase antedates the registry of the title of such debtor 9 ,

I am constrained to answer this question in the negative.

The Act of 1855, now part of Article 2266 of the Civil Code, provides: “All sales, contracts and judgments affecting immovable property which shall not be recorded, shall be utterly null and void, except between the parties thereto.”

The words “ utterly tvull and void,” I construe to mean, that sales, contracts and judgments are absolutely without effect, and really have no existence except between the parties thereto until recorded. That is, they have no effect in favor of or against any one, except the parties, until so recorded. As to all others, it is the record and the record only that gives them life or existence. Such being the case, the recorded judgment of Gallaugher did not and could not, in my opinion, operate on the property in question, in the absence of any registry of Delacroix’ title to the same. As to that creditor, under such conditions his title was void, and his ownership thereof did not exist.

This construction of the law is supported by the decision in the case of Rochereau & Co. vs. Colomb, 27 An. 337.

The defendant in that case purchased a plantation in the Parish of St. James, the act of sale having been passed in the City of New Orleans. In the Parish of St. James a judgment in favor of the plaintiffs in the case was duly recorded. There was a delay in recording the act of sale to the defendant in St. James, where the property was situated. The Court held, that during such delay, the judicial mortgage did not operate on the land so purchased by the judgment debtor; and in a contest over the proceeds of the sale of the land between the vendor thereof and. the mortgage creditor, precedence was given to the former, under his privilege and mortgage for the price. In that decision we find the following language :

“ As to third persons the sale had no effect until it was duly recorded where the property was situated. It is certain that the creditors of the vendor might have seized and sold the property before the registry of the sale in St. James Parish, free from any claim of the vendee’s creditors. But if their judicial mortgage had attached, this could not be.”

It is urged, however, that the title of the defendants to the property was not recorded until one day after the sale to Delacroix, the mortgage debtor, had been registered, and that the mortgage against him took effect at least from the registry of his title.

The act of sale to defendants was passed before the Recorder on the 12th September, 1876, though not recorded till the 16th. The act must be considered as deposited and filed for- record on the day it was passed, and took effect from that date, under the provisions of Article 2254 of the Code. See also, Payne & Co. vs. Panly, 29 An. 116.

For these reasons, I dissent.


text:
    No. 1078.
    The State of Louisiana vs. William Taylor.
    An indictment charging that the accused with a dangerous weapon did malte an assault upon the person of A, and did feloniously inflict a wound less than mayhem, is evidently framed under Seo. 974 of the It. S.
    It is not amenable to tbo charge of duplicity* for containing the words: “did make an assault,” found iu the preceding Section 973.
    Assault is an essential element or -ingredient of the offense charged. There can bo no bat* tery, no murder, no rape, no wounding, uuless an assault be first committed.
    The use of the words did not change the nature of the offense charged, and was legitimate and authorised.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      F. G. Hudson, District Attorney, for the State, Appellee.
    •7. H. Dinlcgrave for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The indictment charges that the defendant with a dangerous weapon, to-wit: a pistol, feloniously did make an assault upon the person of Orange Cliappel, and did feloniously inflict a wound less than mayhem.

After trial, the jury rendered a verdict of guilty as charged.

The accused then moved to arrest the judgment, on the main ground thattlie indictmentis fatally defective for charging two distinct offenses in one single count.

The motion having been overruled, and the prisoner sentenced to twelve months’ imprisonment, we are called upon to review the ruling denying the motion in arrest.

The complaint is, that the indictment contains two distinct charges in a single count.

In support it is claimed that the offenses charged are totally distinct and separate, the penalties therefor being entirely different and inconsistent;.that the penalty of the first offense is discretionary: fine or imprisonment, or both; that the punishment for the other is mandatory and absolute. »

It is further insisted that the grand jury should have found upon both offenses, and that the indictment should show that fact j that failing in this, the indictment is fatally defective, and that the prisoner should be released.

To sustain his position, counsel for defendant refers to Sections 793 and 794 of the Revised Statutes, and to a number of authorities, to show that the indictment contains two distinct charges in one count, and that this is prohibited.

There can be no doubt that the two Sections, to which reference is made, provide for different offenses and for different penalties; and that the authorities are: that distinct offenses, created by different statutes, punishable in different ways, cannot be included in the same count. 4 An. 32; 6 An. 289; 15 An. 498; 20 An. 145; 31 An. 718; 33 An. 1294.

The prosecution is evidently brought under Section 794 of the R. S. The indictment is couched in the very terms of the Statute, which provides : “whoever shall, with a dangerous weapon, inflict a wound less than mayhem upon another person, shall on conviction, etc.*’

There is no substantial difference between the indictment and the Statute, no .material variation from its requirements. The disparity between the phraseology is nominal. It consists merely in this : that the indictment charges that the defendant did make an assault; but the indictment charges distinctly, that the defendant did feloniously inflict a wound less than mayhem.

The words: did make an assault are stereotyped in prosecutions like tliis, and were properly inserted. It is obvious that an assault is essentially an element or ingredient of the offense charged. There can be no battery, no murder, no rape, no wounding, unless an assault be first committed. The insertion of the words did not change the nature of the offense charged, and was therefore legitimate and authorized.

The indictment is not consequently open to a successful charge of duplicity.

This view of the case renders unnecessary a decision of the other ground of complaint.

Judgment affirmed.


author: Poché, J.

text:
    No. 1074.
    D. C. Brown vs. E. M. Ragland.

      A. judgment rendered by a Circuit Court of Appeals in a case within its jurisdiction is final and cannot be reviewed by the Supreme Court.
    Hence, in such a ease, this Court will not interfere with the proceedings of the Circuit Court, when, in an appeal pending before it, the papers are destroyed by fire, and the Court sets aside the judgment appealed from aud remands the cause to the District Court to be tried de ■novo, with the view to reinstate the pleadings, the evidence, and other papers in the case. i
    The Supreme Court will decline to pass on the correctness of such a ruling.
    APPLICATION for Writs of Prohibition and Mandamus against the Judges of the Second Circuit Court of Appeals.

      Bay & Morgan for the Relator.

      T. 0. Benton for Respondents.
   The opinion of the Court was delivered by

Poché, J.

The facts and proceedings which underlie relator’s application are as follows:

A devolutive appeal taken from a judgment of the District Court in favor of the defendant Ragland, who is the relator herein, was pending before the Circuit Court of the proper circuit, when the ñre, which destroyed the Courthouse of the Parish of Ouachita, in Monroe, on the 19th of November, 1882, also destroyed all the papers pertaining to this case.

On motion of appellant’s counsel, and on his showing the impossibility of otherwise procuring the oral testimony on which the case mainly turned, and with a view to the reinstatement of the cause, the Circuit Court set aside the judgment appealed from, and remanded the cause to the District Court, to be there tried de novo.

Relator’s complaint is, in substance, that in granting this order the Circuit Judges exceeded the bounds of their jurisdiction, transcended their authority and acted without the sanction of any law in the premises, and thus caused him irreparable injury. Hence, he prays for an order prohibiting them from proceeding further in the enforcement of their decree, and he further prays for an order compelling them “ to take jurisdiction and pass on the appeal before them, when appellant shall bring up the record in this case, properly supplied according to law.”

Under the plain text of the Constitution, our only right of interference with the Circuit Courts of Appeals rests on our supervisory jurisdiction, as conferred by Article 90 of the Constitution.

It is therefore clear that a cause which falls under their appellate jurisdiction cannot be reviewed on appeal by us. Hence it is that we have uniformly held that, in an application for i^/writ of prohibition, the only subject of inquiry is confined to the question of jurisdiction vel non of the court complained of.

Now,in this case, relator concedes, and all his proceedings show most conclusively, that the Circuit Court was legally and constitutionally vested with absolute jurisdiction over the appeal taken in the case. His prayer for a mandamus to compel the Circuit Court to take jurisdiction of the appeal, and to pass upon it, is an unmistakable admission in that sense.

Hence his complaint, although charging in terms usurpation of jurisdiction on the part of the Circuit Court, is in truth and in fact nothing but a charge that the Circuit Judges have ruled erroneously and contrary to law.

Conceding arguendo that their order is a flagrant violation of law, an outrageous usurpation of authority, and works an irreparable injury to this relator, we are still met with the proposition that the judgment was rendered in the exercise of their uncontested appellate jurisdiction, and is therefore final.

An attempt on our part to review their ruling, under an application for prohibition, would involve us in an attempt to assume appellate jurisdiction over that tribunal, a jurisdiction which is not conferred to ns, and which we must decline to assume.

“ To hold otherwise would enlarge the jurisdiction of this Court so as to embrace every conceivable suit before every Court and nullify practically the article of the Constitution which defines our jurisdiction.” State ex rel. Kramer vs. Judge, 32 An. 219.

To the complaint that the Circuit Judges had no transcript, record or papers of any kind before them, so as to admit of a review of the judgment appealed from, and that therefore their reversal of the judgment was unwarranted by law, and was an usurpation of authority, our established jurisprudence answers, that liaving'jurisdiction of the cause on appeal, the Circuit Judges had the exclusive power of disposing of the case as they deemed proper and just.

They are the sole judges of the sufficiency and validity of the records which are brought before them, and we are powerless to control them in this or any other particular which is entrusted, by the Constitution and by law, to their judicial discretion.

The powers vested in this Court under its supervisory jurisdiction are of a very delicate nature; and we have repeatedly held that we could not and would not exercise them so as to infringe upon the independence of inferior courts in the legitimate exercise of their jurisdiction. State ex rel. New Orleans vs. Judge, 32 An. 549; State ex rel. Sinnoto vs. Falls, 32 An. 553; State ex rel. Wing vs. Judge, 32 An. 1222; State ex rel. Valence vs. Judge, 33 An. 256; State ex rel. Marky vs. Judge, 33 An. 378.

In the case of State ex rel. Berthoud vs. Judge, 34 An. 782, we were asked to prohibit the lower court from enforcing a judgment alleged to have been rendered on an issue, in disregard and wanton violation of a prohibitory law, but finding that the Court had jurisdiction of the cause, and that it had exercised it, we refused to interfere with the judgment thus rendered on the merits of the cause. Speaking of the judgment complained of we said: “It may well be that this judgment is in flagrant violation of law, will work irreparable injury and visit a great hardship on the corporation affected by it, but under our well defined jurisdiction we are powerless to relieve the relator, and have no more authority to reverse that judgment than any other judgment in an unappealable case falling, as this case undoubtedly does, within the jurisdiction of the court which rendered the judgment.” This reasoning applies with irresistible force to the judgment complained of in this case, which was rendered by a court of appellate jurisdiction, whose judgment in proper cases cannot be reviewed by any other court in this State. The relator is clearly not entitled to a prohibition, and still less entitled to a mandamus, the object of which would be to compel the respondents to take jurisdiction of a cause in the face of a showing made by relator himself, that the court has exercised jurisdiction and disposed of the cause. We can but repeat that such disposition, whether right or wrong, is not within the scope of our jurisdiction.

On this branch of the pleadings the case is literally covered by our decision in the case of the State ex rel. Gilmer vs. Judges Circuit Court, 33 An. 1201. In that case the Circuit Court had remanded to the District Court for trial de novo, a case in which judgment had been rendered by the late Parish Court of Caddo, and the relator charging the nullity of such an order applied to us for a mandamus to compel the Circuit Court to try the appeal as it was originally presented from the Parish Court. In refusing the writ prayed for, we said : “The act of the Judges of. the Court of Appeals, in remanding the case to the Circuit Court for trial, was a recognition of the appeal as before them, and a judicial act showing an exercise of their jurisdiction of the case. * * The Judges may have committed an error in remanding the case, and perhaps should have tried the appeal as it came from the Parish Court, but any error committed by the Court of Appeals in a matter within its discretion and jurisdiction we cannot review, having no appellate jurisdiction of the proceedings of that court.”

■ The rules which we have established in that and numerous other cases are conservative, wise and sound ,• and we see no features in this case which would entitle it to be treated as an exception, or justify us to depart from our previous conclusions on this part of our jurisdiction.

These considerations dispose alike of the writ of prohibition applied for herein against the District Judge, in order to restrain him from obeying the mandate of the Court of Appeals.

The writs applied for are therefore refused at relator’s costs.


text:
    No. 1087.
    Mrs. E. A. Sterling vs. The Heirs of John F. Sterling. Cobb & Gunby, Intervenors.
    Where an appellant fails to file the transcript on the return day, or within the legal delays thereafter, and his appeal is dismissed because such failure ie imputed to his fault, he cannot renew his appeal thereafter.
    The failure to seasonably file the record, without legal excuse, is considered as an abandon* ment of the appeal.
    A PPEAL from the Fifth District . ardson, J. Court, Parish of Ouachita. Bich-

      D. O. Morgan for Intervenors and Appellants.

      F. P. Stubbs for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This motion is to the following effect: that an appeal was taken to this Court returnable on the 2d Monday of June, 1882; that tlie transcript was not filed on said return day, or within the legal delays thereafter, owing to the laches of the appellants, and that said appeal was on motion dismissed by decree rendered at said previous < term of this Court, and that appellants could not take and prosecute another appeal, the present one.

By reference to the minutes of the proceedings of this Court at its last term at this place, it appears that the 2d Monday of the term fell on the 12th of June, which was the return day for appeals from the Parish of Ouachita, but that the transcript was not filed till the 17th of the month. It was held in the opinion dismissing the appeal, that the failure to file the transcript in time was attributable to the fault of the appellants, and for this reason the appeal was dismissed.

We have carefully and anxiously reviewed the decisions bearing on the question, to ascertain if we could find any ground upon which this appeal could be maintained against the adverse motion.

We had occasion to examine the jurisprudence on the subject in a late case, that of Pierce vs. Cushing, 33 An. 810, a case almost exactly parallel to the instant one. There were two successive appeals in that case. The first filed after the return day and dismissed. The motion to dismiss the second appeal was, in substance :

That the first appeal having been dismissed, for failure to file the transcript in time, the appellants had no right in law to renew appeal; that the first appeal was abandoned and could not be renewed.”

In that case, as in this, it was urged, that where an appeal is dismissed on the motion of the appellee, the appellant can take another appeal within the year allowed for a devolutive appeal.

If the question were a new one, we would hesitate about dismissing an appeal, because of what is termed in the decisions a constructive abandonment of the appeal, but the question is not a new one, and our decision in the case of Pierce vs. Cushing was based on a long line of precedents, referred to in the opinion therein delivered.

Among the cases cited was that of Ducournau vs. Levistones, 4 An. 30, in which this language is used by the Court:

Tiie Code of Practice is positive that if the appellant does not file the transcript seasonably, the appeal shall be considered as abandoned, and the appellant shall not be afterwards allowed to renew it.”

And in Brickell vs. Conner, 10 An. 235, it was held:

That a party who obtains an order for a devolutive appeal, and fails to furnish bond, as required, and to file the transcript in appellate court during the term at which the appeal was returnable, will be held to have abandoned his appeal and will riot be allowed to renew it.” And again', in the case of Redmond vs. Mann, 29 An. 149, it was said:

If a suspensive appeal has been dismissed because the appellant has failed to file the record within three judicial days after the return day, he cannot afterwards be allowed to take a devolutive appeal from the same judgment.” See also, 9 An. 39; 15 An. 592.

We have attentively examined the decisions referred to by the appellants’ counsel, and find none of them to militate against the authority of the ones which we have cited above and on which our action in the case of Pierce vs. Cushing was predicated. They all, with one exception, refer to cases where the first appeal was dismissed for defects in the appeal bond, and would, therefore, come under our ruling in the case of York vs. Hoover, recently decided by this Court, and not reported, that an appellant was debarred from a second appeal when the first appeal was seasonably filed, but was dismissed for defects in the transcript.

For these reasons the motion must prevail, and the appeal is, therefore, dismissed at the cost of the appellants.


text:
    No. 1080.
    The State of Louisiana vs. James Johnson et al.
    Indictment concluding with, the words “against the peace and. dignity of the State,” complies with requirement of Art. 86 of the Constitution.
    As to distinction between day and night, time is of essence of the crime of burglary, but not as to date of week, month or year; and the court did not err in allowing amendment of indiotment as to auoh date, under § 1047, Rev. Stat.
    Although a confession made by one of two joint def«ndants might not be admissible a# a oonfession against the other until proof of conspiracy, yet when made in the other’s pres* ence and implicating him and not denied by him, it may go in as a tacit admission by the latter, in absence of objection on the ground that he was under arrest on the charge at the time, and, therefore, had the right to be silent.
    Proof by a witness, of subsequent statements made to him by the co-defendant, is hearsay and properly* excluded.
    APPEAL from the Twelfth District CAurfc, Parish of Grant. Bar-bin, J.

      J. 0. Bgcm, Attorney General, for the State, Appellee:
    1. Robbery is not prescribed by one year. R. S. § 2814.
    2. The terms “against the pence and dignity of the St ite” and “against the peace and dignity of the same,” in an indictment, are equivalents, and may be used indiscriminately.
    3. A confession of a co-dofendant may be used in evideno) against boih the accused, when evidence has gone to the jury that they had acted, in the perpetration of the crime, together.

      4. The indictment may be amended as to time, when there is a variance between the time laid and that proved, when time is not of the essence of the offence. !R. S. 1047.
    5. Hearsay evidence is admissible.

      Thorpe, Peterman & Thorpe for Defendant and Appellant:
    1. All criminal prosecutions must conclude in the words : “against the peace and dignity of the same.” Art. 86, Constitution of Louisiana.
    2. The confession of one of two accused persons is not admissible in evidence against the other. 26 An. 513; 39 An. 354; 30 An. 919.
    3. Where time is of the essence of the offence charged, an amendment to an indictment changing the date of the commission of the crime alleged therein, cannot be made after a jury has been empanelled and testimony has been taken. Secs. 1047, 1063, Revised Statutes.
    4. Evidence offered on the part of the defence to prove that a confession which the witnesses for the prosecution had testified was voluntary, was made under duress and extorted by violence, is admissible.
   The opinion of the Court was delivered by

Fenner, J.

James Johnson and Richmond Harris were jointly indicted for burglary. Johnson escaped. Harris was tried alone and was convicted of larceny, from which conviction he appeals.

1. It is difficult to treat seriously the earnest argument in support of the motion to quash the indictment, on the ground that it concludes with the words “ against the peace and dignity of the State,” instead of those “ against the peace and dignity of the saíne,” used in Art. 86 of the Constitution. Obviously, the antecedent to which the words “ the same,” as employed in the Constitution, refer, is the State, and those words were there used simply to avoid tautology. The most exacting precision should be satisfied when, even at the sacrifice of euphony and rhetorical rules, the violation of the peace and dignity of the State is asserted in express terms, rather than by mere reference. If courts should tolerate sneh verbal objections, the criminal pleader might exclaim with the Melancholy Dane, “ we must speak by the card, or, by ’r lady, equivocation will undo us! ”

2. An exception is presented to the ruling of the Court permitting the State to amend the indictment so as to show that the offense was committed on a different date from that stated in the indictment. We think the allowance of such an amendment clearly lay within the discretion of the court under Art. 1047, Revised Statutes. As to the distinction between day and nigbt, time is of the essence of the crime of burglary, hut not as to the date of the week, month or year.

3. Another exception appears to the admission of the testimony of one Collins, offered to prove that Johnson had voluntarily confessed to him that he and Harris had jointly committed the crime. The objection was on the ground that there was no evidence of conspiracy, and that, therefore, the confession was admissible only against the party who made it. Regarded as a confession simply, there might bo force in this objection, but the Judge, in his reasons for overruling it, states that Harris was present when the statement of Johnson was made, and made no denial thereof. This brings the case within the rule of tacit admissions. It does not clearly appear that Harris was under arrest or in custody under the criminal charge at the time, nor was any objection on that ground urged. The ease is not, therefore, within the rule of Diskin’s case, 34 An. 919.

4. The last bill of exceptions was taken to the exclusion of testimony of a witness offered by defendant to prove subsequent declarations of Johnson, to the effect that his former confession was not voluntary, but extorted by duress and violence.

Direct evidence to show circumstances of duress and violence under which Johnson’s statepient and Harris’ failure to deny had taken place, would have been undoubtedly admissible. But it seems clear that the more subsequent statements of Johnson as to those circumstances, not made under oath and sought to be proved by a third person, were hearsay and inadmissible under any theory.

Judgment affirmed.


author: Bermudez, J.

text:
    No. 1083.
    The State of Louisiana vs. Dan Sullivan.
    An indictment for forgery containing the purport or tenor of the instrument said to bare been forged, and setting forth the words of such instrument, can be legally amended during the trial, by substituting the word oblige to the word charge at the conclusion thereof.
    The variance was not material and could not prejudice the defense.
    The correction was trivial and left the sound and sense substantially the same.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.
    F. <?. Hudson, District Attorney, for the Sfate, Appellee.

      W. F. Millsaps for Defendant and Appellant.
   ' The opinion of the Court was delivered by

Bermudez, J.

The defendant was indicted for forgery, tried and convicted. From the verdict and judgment sentencing him to two years at hard labor, he appeals to this Court.

The record contains one bill of exception only. It was taken to the ruling of the District Judge, permitting the State’s attorney to correct the indictment so as to make it conform with the proof. The correcttion consisted in substituting the word “ o&Ztgte ” to the word “ charge,'1'1 coutained in the indictment.

Section 1047, Revised Statutes, is to the effect that, whenever on the trial of any indictment for any crime or misdemeanor there shall appear to be a variance between the statement in the indictment and the evidence offered in proof thereof, * * in the name or description of any matter or thing whatsoever therein named or described, * * it shall be lawful for the Court, * * if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense, to order such indictment to be amended according to the proof, etc.

Section 1049, R. S., is to the further effect that, in any indictment for forging * * any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same, or the value thereof.

The indictment in this case describes the instrument charged to have been forged as a certain order for money,” and terminates with its concluding words : “ and charge Bell Teen.'1'1

The tenor of the order having been set out in the indictment, an insignificant variance between the charge and the proof could well be corrected, so as to have the former to conform with the latter. The variance was not material. The correction was trifling. It was merely literal, and left the sound and sense substantially the same.

In the exercise of the discretion formally vested in him by the special legislation stated, the District Judge thus viewed the variance, and considering that the accused could not thereby be prejudiced in his his defense, he permitted the amendment.

The defendant did not plead surprise or probable injury at the time the amendment was made; neither did he do so in his motion for a new trial, which merely charges, that the verdict is contrary to the law and to the evidence.” He has not undertaken in this Court to show how the variance was material and how the defendant was prejudiced by the amendment.

The authorities invoked in his behalf would be entitled to weight had not the amendment been made, but they can receive no application, as the error, trivial after all, was rectified in his presence during the trial.

The District Judge did not err in directing the amendment. Waterman U. S. Cr. Dig., pp. 213, 214, Secs. 198, 207; 100 Mass. 12, Commonwealth vs. Butterick.

Judgment affirmed.


text:
    No. 1082.
    Allen, West & Bush vs. Mrs. Mary E. Whetstone et al.
    The fact that a party to the suit requests it, does not deprive the court of the power to order ex officio a judicial sequestration without affidavit or bond.
    A commercial partnership may hold title, in its ñrm name, to real estate, when acquired by consent of the parties, who thereby became joint owners thereof.
    Registry of act of sale under private signatures is binding as notice to third persons, though without proof of signatures, as directed by Rev. O. C. 2253.
    A party to a written contract cannot avail himself of error resulting from failure to read the same before signing, where not induced to do so by the other party thereto.
    A cotton factor who, by direction of his customer, invests the latter’s funds, is not responsible to him for illegality of the investment.
    APPEAL from the Sixth District Court, Parish of Morehouse. Brigham, J.

      Bilis <& Sugar for Plaintiffs and Appellees:
    1. It is not necessary that the vendee sign the deed. C. C. 1811 ; 4 An. 162 ; 23 An. 272.
    2. A deed under private signature duly recorded without the affidavit of the subscribing witnesses, gives notice to third persons. Art. C. C. 2253 is merely directory. 9 An. 547 j 10 An. 502; 11 An. 531; 25 An. 111.
    3. Contracts are binding, though the contracting parties signed the same without reading it. 22 An. 14; 30 An. 1157.
    4. One pleading error or fraud must show, by evidence, in what the error consisted or how the fraud was practiced. 11 L. 80; 7 R. 418; 6 N. S. 207.
    5. The principal is bound by the acts of the agent. C. C. 3001; 4 L. 66.
    6. When the agent exceeds the scope of his authority, it is the duty of the principal to give notice. 11 L. 288; 2 R. 1; 6 R. 284, 084; 12 An. 159 ; 20 An. 215; 18 An. 546 ; 29 An. 679; 24 An. 462.
    7. An agent’s riegleot to notify his principal does not affect the latter’s obligations to third persons. 4 N. S. 303 ; C. C. 3021.
    8. A principal cannot plead ignorance of the acts of his agent, nor a partner ignorance of the acts of his co*partner, nor of his business managers, when acting within the scope of his authority. 6 R. 97; 3 R. 256; 1 An. 432; 5 An. 532.
    9. When a person contributed to his own loss by holding out to the world some one as agent, such person is bound by the acts of such agent. 4 An. 19; 9 R. 346 ; 6 L. 47.
    10. The possession of the lessee is the lessor’s possession. C. C. 3433; 6 R. 189; 16 L. 29.
    11. What has been given or paid on a moral obligation arising from an aleatory contract, cannot be recovered. When such contracts are executed, neither party can plead their turpitude to rescind them. C. C. 2984; 1 An. 176.

      \ The purchase of cotton for future delivery is not an illegal contract, and the requiring of j margins is in the nature of a penal obligation and does not vitiate the contract. O.O. [ 2117, 2122, 2125, 2485, 2186; Pothier, pp. 59, 60 ; 2ri An. 731, et seq., Aroui.
    12. In a contest between a vendor and vendee as to ownership of property which had been sold with right of redemption, the plea by the vendor that in a subsequent settlement he had paid the vendee all that was due him, and extinguished whatever right or olaim the vendee had on the property, is virtually a plea of payment. H. I), p. 1141, No. 1 and authorities cited; Louque p. 535, Nos. 1 and 2 and authorities there cited.
    13. In an action of slander of title, defendant by setting up title in himself shifts the burden of proof and must stand on the strength of Ms own title, and not on the weakness of his adversary’s. 33 An. 249.

      Todd ds Todd on the same side:
    In a suit for slander of title, if defendant sets up title in himself, the action is changed, into a petitory oue, in which the defendant stands as plaintiff. 33 An. 249, Edward J. Gay vs. Thus. H. Ellis.
    The written acceptance of the vendee, in a sale of real estate, is not essential to perfect his title. 23 An. 272.
    The recordation of a deed under private signature is good against third persons without the affidavit of the subscribing witnesses or either of them. 11 An. 533; 21 An. 241; 25 An. Ill, and authorities thereiu.

      Qni facitper alium facit per se. The acts of the agent cannot be disputed by the principal, and if ratified, when authority is exceeded, the principal is bound. C. C. 2985-94-95; 6 L. 589; 19 An. 370; 18 An. 54G ; 20 An. 215; 27 An. 76; 29 An. 679.
    A principal who contributes to his own loss, by holding out to the world a careless and irresponsible person as agent, cannot recover such loss against innocent persons dealing with such agent. 4 An. 19; 6 L. 47; 9E. 346.
    One pleading error and fraud must show that it is superinduced by the other contracting party. 2d An. 14; C. 0. 1818-19-20; 30 An. 1157.
    If the agent deceives his principal, and exceeds the scope of his authority, it is the duty of the principal, as soon as he discovers this, to notify the other party. 6 E. 684; 11L. 288; 12 An. 159; 22 An. 496; 24 An. 462.
    One cannot he heard in a suit to recover what has been paid on an illegal or immoral contract.' O. C. C. 2953.
    A contract for the purchase or sale of cotton, on future delivery, is not illegal or immoral. 28 An. 731, Decision of IT. S. Supreme Court in the case of Smith &. Lightnor vs. John H, Eoundtree, decided April 16, 1883. See also Aroni on Cotton Futures, pp. 11,18, 34.
    The plea of payment waives the general issue, aud the party pleading it is confined to this issue in his defence.

      Newton <& Nall for Defendants and Appellants:
    A judicial sequestration sued out at the request of a party to the suit must be preceded by affidavit and bond. C. P. 273-5-6; 16 An. 335.
    A commercial partnership cannot own immovable property. C.C.2825 ; 23 An. 419; Louque’s Dig. p. 511.
    Consent is essential to every contract. C. C. 1797,1819.
    Error of fact will avoid a contract. C. C. 1819, 1821.
    Contract, without a consideration, can have no effect. C. C. 1893,1896.
    A commercial partnership cannot exist between husband and wife. 19 An. 249; 2 La. 269, 270.
    The record of an act under private signature can have no effect again*t a bona fide purchaa er, unless previoue to its recordation it is acknowledged by the party or proved by the oath of one of the subscribing witnesses, and the certificate of such acknowledgment by the Recorder, etc. C. C. 2252; 28 An. 726; 33 An. 1250.
    A party cannot suo for ownership of property, and in same suit claim damages for slander of title of said property. 12 An. 873.
    A contract for purchase and sale of cotton futures is aleatory in its nature and cannot be en-^ forced. O. O. 2982.
   The opinion of the Court was delivered by

Fenner, J.

A careful consideration of the evidence leads ns to the following conclusions as to the facts :

Mrs. Mary E. Whetstone recovered a judgment of separation of property against her husband in 1875. Immediately thereafter she executed in favor of her husband, Robert Whetstone, a power of attorney, general, special, of the broadest character, embracing powers to receive her moneys and property, to collect and compromise claims, to buy, sell, transfer and assign any and all property belonging to her, to make all contracts pertaining to any and all matters in which she may be interested, to sign for her notes, drafts and all other instruments of writings, etc. It is difficult to conceive of any power possessed by Mrs. Whetstone which might not have been executed in her behalf by her husband.

Mrs. Whetstone then established herself in business as a public merchant, which business was managed by her husband, under the power-referred to, and was conducted in the name of Robert Whetstone, agent, or later in the name of Whetstone & Co.

The business was not prosperous, and by the year 1881 had become embarrassed and^insolvent. As a desperate expedient, Whetstone applied to Allen, West & Bush, the cotton factors and heavy creditors of Whetstone & Co., to buy for that concern some cotton futures. Plaintiffs replied, refusing to do so, unless secured for necessary margins. Whetstone responded, that if plaintiffs would execute Ms order, he would sell to them certain storehouses belonging to his wife, title to be held as security against loss. Plaintiffs accepted the proposition, and made the investment for Whetstone & Co. Thereupon, Mrs. Whetstone, aided and authorized by her husband, executed an act of sale of the storehouses to plaintiffs, for the expressed consideration of “ $2,500 cash, invested by Allen, West & Bush for the use and benefit of said Mrs. M. E. Whetstone,” and upon the condition that if she should pay back the $2,500 by the 1st day of June following, the sale would be null and void, otherwise to remain in full force and effect.

The firm of Whetstone & Co. was succeeded by Whetstone & Ellis, consisting of Mrs. Whetstone and Dr. Ellis; subsequently Dr. Ellis purchased the interest of Mrs. Whetstone, and the firm of Larkin & Ellis was formed, which, on February 3d, 1882, entered into a written agreement with plaintiffs to occupy the houses as their tenants for the remainder of the year, upon the consideration of acting as plaintiffs’ agents in settling up their business on Oakridge.

On January 25th, 1882, the deed to plaintiffs was recorded.

After that time, Mrs. Whetstone and her husband conceived the idea of repudiating the transaction with plaintiffs, and to that end, they began to set up pretensions to the continued possession of the storehouses, and obtained from the tenants acknowledgment in writing of thqir holding under Mrs. Whetstone, directly in the teeth of their prior contract with plaintiffs. Mrs. Whetstone then executed a deed of sale of the property to her mother, Mrs. E. G. Larkin, who continued thereafter to claim possession and ownership of the property, and procured similar acknowledgments of her possession from the tenants, and even entered into a conditional contract of lease with them for the year 1883.

On learning’ these facts, plaintiffs instituted the present action of slander of title against Mrs. Whetstone and Mrs. Larkin, the object of which is to quiet their title to, and possession of, the property.

Upon the suggestion of the collusive proceedings between their tenants and the defendants, threatening divestiture of their possession, the Judge granted an order of judicial sequestration of the property pendente lite.

The defendants allege substantially the nullity of plaintiffs’ title to the property, and the validity of Mrs. Larkin’s title, which latter- they pray may be recognized, and that she be decreed the owner of the property.

We shall consider the various questions presented in the following order:

1. It is claimed that the judicial sequestration, without affidavit or bond, was wrongful, because issued “at the request of the parties.” The fact that parties suggested or requested it did not deprive the court of the power to order the sequestration ex-officio, under C. P. 273, without affidavit or bond.

2. Exception is taken to the capacity of Allen, West & Bush to stand in judgment, because it is a commercial firm and incapable, as such, of owning real estate. The exception is frivolous. The restrictions as to the dealing in immovable property by commercial partnerships are limitations upon the powers ánd rights of partners in reference thereto. A commercial partner has no authority to bind his co-partners without their consent, by purchases or sales of immovables in the name of the firm. But such transactions are perfectly valid when made with the consent of or approved by the co-partners, who, under such circumstances, become joint owners. In the present suit not only the firm, but all the members thereof are parties, and their right to stand in judgment does not admit of question.

3. It is urged that plaintiffs’ title is without effect as against Mrs. Larkin, because being a sale by private act it was not acknowledged or proved prior to recordation, in accordance with Article 2253, Bev. Civil Code.

It was not supposed that this question would again be agitated, after the exhaustive consideration and disposition given to it in Stall cup vs. Pyron, 33 An. 1249.

■ 4. Nullity of the deed to plaintiffs is urged, because it was not accepted in writing by the latter.

It is well settled that written acceptance is not necessary, but may be established by acts clearly indicating acceptance. Balch vs. Young, 23 An. 272; Amory vs. Black, 13 La. 264; Ryder vs. Frost, 3 An. 523. Such acts are abundantly established in this case.

5. There is not the slightest foundation for the defense of error and fraud set up by Mrs. Whetstone. It is not pretended that plaintiffs ' practised any fraud or did anything to lead her into error. The deed was prepared by her husband, and presented to her for signature by him. If she failed to read it, it was her own fault, and plaintiffs cannot be affected by any error resulting from her own gross negligence. Watson vs. Bank, 22 An. 14; Keough vs. Foreman, 33 An. 1439.

6. The pretense that the advance of $2,500 made 'by plaintiffs as .the consideration of the deed, was made for account of Robert Whetstone individually and not of his wife, is abundantly refuted by his ^letters, by the acts of the parties and by the recital in the deed itself.'

- 7. The defense of illegality of consideration is without foundation. The consideration was $2,500 in money. That money was invested in cottou futures by her direction through her agent. Plaintiffs did not sell her the futures. They are not dealers in futures. They simply acted as her agent in investing her money as she directed them. Moreover, there is not in the record a word of evidence showing the nature of these future transactions, which, for aught that appears, may have been perfectly legitimate purchases of cotton to be actually de- and paid for in the future.

8. The release given by plaintiffs to Mrs. Whetstone, from all obligations that may have arisen on account of the firms of Whetstone & Co. and Whetstone & Ellis,” manifestly has nothing to do with this case. There were no obligations remaining on Mrs. Whetstone touching this transaction.

The property had been transferred. The price had been paid. Nothing remained except the right of Mrs. Whetstone to redeem by paying back the price before June 1st.

Defendants’ claims are without the semblance of equity from any point of view. It is undeniable that plaintiffs have parted with $2,500 as the consideration of this deed, according to the direction of Mrs. Whetstone and for her exclusive benefit.

She seeks to escape from her obligation, not only without tendering, but without even expressing her willingness to refund this consideration. We find, however, no support for plaiutiffs’ claim for damages, and reject their prayer for amendment in that respect.

Judgment affirmed at cost of appellants.