text:
    No. 1032.
    The State of Louisiana vs. Thomas Edwards.
    1. Evidence of prior aots, declaration and threats of accused, though not part of the res gestee, is admissible, when they legitimately tend to establish motive or intention in the accused to commit tho crime with which he is charged, and for that purpose only.
    2. liefusal of tho Judge a quo to grant anew trial, on the ground of newly discovered evidence, supported only by the affidavit of the accused, will not he disturbed in this Court. Prior authorities affirmed.
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      J‘\ G. Hudson, District Attorney, for the State, Appellee.

      L. B. Watkins aud J. 1). lioaoh, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Two grounds are urged in this Court for the reversal of the judgment, viz :

1. Error, alleged on hill of exceptions, in a ruling of the Court admitting the testimony of certain witnesses.

Defendant was charged with burning an outhouse, used and occupied as a kitchen by one E. W. Jackson. The purport of the evidence objected to was, that about three weeks before tho burning, defendant liad a difficulty with Jackson, in the course of which, the latter struck him ; that very shortly afterwards, defendant spoke harshly to the witnesses about Jackson, and said, in substance, that he would have revenge on him ; that he allowed no man, black or white, to strike him ; that one man in DeSoto Parish had struck him once, and he burnt him out; and that ho would do likewise by Jackson in less than six months, etc.

The evidence was objected to, on the ground that it was not part of the res gestee, and not pertinent to the issue.

The hill shows that it was not offered or received as part of the res gestee, but to prove motive and malice on the part of the accused towards Jackson, whose kitchen he was charged with burning.

The ruling was clearly correct.

As the absence of motivo to commit a crime weakens the force of circumstantial evidence in support of guilt, so the existence of positive and strong motive is always a proper and powerful factor, in a case of circumstantial proof. By itself it may be nothing, hut in connection with other circumstances, it may exercise legitimate probative effect.

“Declarations of intention and threats,” says Mr. Wharton, “are admissible in evidence, not because they give rise to a presumption of law as to guilt, but because from them, in connection with other circumstances, and on j>roof of tlie corpus delicti, guilt maybe logically inferred. Evidence of this kind, for this purpose, is always competent.” Citing numerous authorities. Wliar. Crim. Ev. §756, 784; Waterman’s Crim. Dig. p. 158, No. 306.

2. Refusal of a new trial, applied for on the ground of newly discovered evidence.

Nothing is presented except the affidavit of the prisoner as to the existence and new discovery of the evidence.

It is perfectly settled in our jurisprudence that the ruling of the District Judge, in such a ease, will not be disturbed by this Court. 21 An. 473; 22 An. 468; 14 An. 79, 40; 7 An. 284, 532 ; 4 An. 433, 441.

A contrary rule would render the granting of new trials, on the remanding of cases on the ground .of refusal, dependent simply upon the skill of counsel in preparing sufficient affidavits, and the consciences of convicted criminals in swearing to them.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1034.
    Succession of B. F. Furniss. Oppositions of John Locke and M. Levy.
    1. Under tlie homestead provisions ol' the Constitution of 1879, tho exemptions therein provided only take effect from the date of registry, as provided by law, and are -inoperative against debts contracted prior to such registry.
    2. ‘When a thing has been exchanged for another thing and a sum of money, the contract is a sale to the extent of the money consideration, and when credit is given for the latter, the creditor is entitled to a vendor’s privilege.
    APPEAL from the Sixth District Court, Parish of Morehouse. Brigham, J.

      Newton <£• Hall, for Opponents and Appellees.

      Bussey cfi Naff, for Defendant and Apx>ellant.
   The opinion of the Court was delivered by

Fenner, J.

Locke and Levy, creditors of decedent, oppose the final account filed by the widow, as administratrix of his succession, on two grounds, which will be separately considered.

I.

The administratrix claims, as surviving spouse and tutrix of the minor children of the deceased, left in necessitous 'circumstances, and credits herself with certain immovable property occupied as a homestead, and certain other property, the whole valued at about two thousand dollars, which she claims as exempt from liability for the debts of the deceased, under the provisions of Articles 219 and 220 of the Constitution of 1879.

The opponents object to this claim and credit, on various grounds, of which we find it necessary to notice but one, which is visceral and conclusive, viz : that the exemptions claimed had not been “ set apart and registered ” at the date when their debts were contracted, nor, indeed, at any time by B. P. Furniss during his life, hut were only so registered by the widow and tutrix after his death.

This objection is fatal to the claim of the widow and tutrix.

After much reflection and attentive consideration of the arguments advanced by their counsel, we fail to find any solidity in the contention supi>orted by them.

■ The Constitution is luce clarior on the subject, and when its provisions are quoted, their meaning is so plain that comment seems superfluous.

The Constitution, after defining the exemptions, says: “Such exemptions, to he valid, shall be set apart and registered, as shall he provided by law.”

Then, until set apart and registered, there is no valid exemption, which means, practically, no exemption at all. If there existed no valid exemption at the time when the debt was contracted, certainly the Constitution did not intend to leave it in the power of the debtor to create such an exemption thereafter, to the prejudice of antecedent creditors.

What is the object of registry ? Notice. To whom? To third persons dealing with the debtor. What would he the use of such notice, given only after the debts have been contracted ?

The object of the convention was transparent and, it seems to us, a very wise one. It saw that the effect of the homestead, provision, coupled, as it was, with the prohibition of the conventional waiver thereof, would be to cripple the credit and resources of the beneficiaries, which, under many circumstances, would he more injurious than beneficial to them. It, therefore, gave them the option of availing themselves or not of the privilege, as their interests might require. It said to them: if you desire to secure your homestead from the risks and chances of business, you may' do so by registering your exemptions as required by law. If, on the contrary, you desire to retain your whole property in a situation to serve as a basis of credit, for the purpose of conducting or extending your business operations, we leave you the option of doing so, by simply abstaining from registry. Itnever meant to say: you may abstain from registry until you have obtained credit, and you may then defeat your creditors by subsequent registry.

. The language of the Constitution leaves no doubt that the sole, direct beneficiary ” of the homestead provision, was the original “ debtor,” or “ head of a family.” The clause extending the benefit to the surviving spouse or minor children, is in these words : “ The benefit of this

provision may be claimed by the surviving spouse or minor children of a deceased beneficiary, if in .indigent circumstances.”

This shows that the deceased was the beneficiary, that the widow and minors only succeeded to his rights. If he, at his death, had the right to the exemptions, they might claim them ; otherwise, not.

Furniss, at his death, was entitled to no exemptions under the Constitution of 1879, and his widow and children could, therefore, acquire none, to the prejudice of his creditors.

We have no occasion to discuss the exemptions to which Furniss might have been entitled under the prior Homestead Act of 1865, as against that portion of opponents’ debts contracted before the Constitution of 1879, because it is conceded that those exemptions did not survive him.

The only claim of the widow is to the $1,000, under the Act of 1852, which was properly allowed her by the Judge a quo, who sustained the opposition on the point just considered by us.

II.

We think the Judge erred in rejecting the claim of opponents, asking an amendment of the account, by charging the administratrix with the sum of $100, the admitted value of a mule disposed of by her after her husband’s death. A mule had been purchased by Furniss from Lacy, for which he gave the latter his note for $110. Furniss then traded the mule to Bass, giving the latter- $30 additional, for- which Furniss also gave his note. After Furniss’ death, Lacy and Bass agreed with the widow to give up both the notes and take back the mule, with the intention of exchanging mules between themselves, and thus placing all parties in 'their original position. Although this was an equitable arrangement-, wé can discover no principle of law to sustain the widow’s action, and we are bound to decide according to law. The mule ■obtained from Bass unquestionably belonged to the succession. Lacy was a mere ordinary creditor for his note of $110, the mule bought from him having passed out of the ownership of his vendee, and his vendor’s privilege being thereby lost. The only privileged claim on the mule, held by the succession, was the $30 note of Bass. His right to a privilege depends upon whether the contract between him and Furniss could be considered as, in any sense, a sale. The question seems to be new to our jurisprudence, but we find it solved by the French authorities;

“ Si ime chose a été céáó íi ia fois contre une autre chose et une Bomme d’argent, il y a vente jusqu’á concurrence de cette soinme.” Holland, Echan ge, No. 19.

Pothier holds that when, in such a transaction, the sum of money exeeeds in value the thing given with it, the latter is but an accessory of tho price, which consists principally of a sum of money, and the contract is to be treated entirely and completely as a contract of sale. Pothier, des Retraits, No. 92.

The widow, having taken up this privileged note, is entitled to retain its amount out of the value of the mule, but she is unquestionably bound to restore the remaining $70, to be distributed among the succession creditors, including the Lacy note, being .herself entitled, as holder thereof, to her dividend thereon.

The appellees are entitled to an amendment of the judgment in this respect, as prayed for in their answer.

It is, therefore, ordered, adjudged and decreed, that tho judgment appealed from be amended, by charging the administratrix with $100, the value of the mule disposed of by her, less the amount of the note for $30 taken up by her from Bass, and privileged on the mule, and reserving her right to claim as an ordinary creditor, as holder of the note for $110, taken up by her from Lacy, and that, as thus amended, the judgment be affirmed, appellant to pay the costs of this apjieal.


author: Bermudez, C. J.

text:
    No. 1068.
    The State of Louisiana ex rel. Cupples vs. The Judges of the Second Circuit Court of Appeals.
    A mandamus does not lie to compel Judges to reverse their judgments, and render specific judgments in place thereof. It -would be substituting the judgment of the appellate court to theirs, in an unauthorized proceeding.
    Application for Mandamus.

      W. W. Farmer, for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.


author: Todd, J.

text:
    No. 1060.
    John Chaffe, Administrator, vs. W. W. Farmer.
    Where the property of a succession is sold at judicial sale, provoked by a creditor, the administrator of such succession, even though he be competent to buy at the sale, cannot lawfully make an agreement with another person, who intended bidding at the sale, that if he will not do so, he, tbe admininistrator, in case the property is adjudicated to him, will sell to such person a part of the property for a stipulated price. A purchase by the administrator under such circumstances is a nullity, and the title to the property will not pass from the succession. The buyer in such case is not a possessor in good faith, but owes rent for the property from the sale.
    Ho is, however, entitled to reimbursement for taxes paid on property, for repairs, insurance, and such necessary expenses, also to be reimbursed the price paid by him that went to extinguish charges against the succession and interest thereon; but the settlement of his claims must he made contradictorily with the creditors and by the proper proceeding in the probate court.
    It is an administrator's duty to obtain the highest price for the succession property, and not to depress ifc by preventing competition at the sale in order to buy himself.
    When, after such purchase by the administrator, he mortgages a part of the property to a person who is in good faith, has no notice of the vice in the title, the mortgagee will be protected, and the property, upon the annulling of the sale, returns to the succession charged with the mortgage.
    APPEAL from the Fifth District Court, Parish of Ouachita. L>. G. Morgan, Judge, ad hoe.

      JBoatner & Liddell and i?. JRiehardson, for Plaintiff and Appellant.

      W. W. Farmer, in propria persona.

   The opinion of the Court was delivered by

Todd, J.

The plaintiff, as administrator of the succession of Charles H. Morrison, deceased, sues to annul the sheriff's sale and adjudication of the property, described in the petition, to the defendant, W. W. Farmer, and to have the said property returned to the succession, and recover the rents thereof from the date of said sale.

The grounds of nullity alleged are, substantially, as follows:

1. That at the time of said sale and adjudication, the defendant was the administrator of the succession of Morrison, to which the property in question belonged at the time, and, as such administrator, he was prohibited by law from purchasing said property at the judicial sale.

2. That before the sale in question, the defendant entered into an illegal combination with Sigismund Meyer, to prevent his bidding at the sale of said property, which he intended to do, promising, as the inducement therefor, that he would convey to said Meyer a part of the property sold. That the effect of this combination was to prevent competition, whereby the property was purchased by the defendant far below its real value.

The defendant, filed peremptory exceptions, mainly to tlie effect that an offer to refund the money paid by him at the sale attacked was a prerequisite to the institution of the suit, which had not been done, and that the action was prescribed, pleading the prescription of one year.

The exceptions were voluntarily withdrawn by the defendant, without prejudice to his right to insist on reimbursement of the amounts expended by him in the purchase of the property, and to have said right recognized in the judgment tobe rendered, the defendant declaring himself willing to waive all such exceptions and put the case squarely before the court on its merits. The answer of the defendant, besides many other things, contains averments substantially to the effect, that he bought the property in question; that he had the right to buy, because it was not under his administration when sold. That it was seized and sold by the sheriff under executory process, and by its seizure was taken from his possession and control as administrator, and for the further reason, that he was an ordinary partner of C. H. Morrison, which excepted him from the inhibition of the Code, relative to purchases made of succession property by administrators. He admitted an understanding with Meyer, relative to the sale of the property and bidding thereat, but denies that it was an illegal combination, that it prevented bidding at the sale, or was intended to do so, or that it caused the property to sell for less than it would otherwise have sold for. He denies being liable for rent, in any event, before the institution of the suit; avers that he paid out moneys for taxes, repairs, insurance, etc., which he pleads in compensation to rent, should the salo be annulled, and further claims, in that event, to be reimbursed the price paid for the property, with interest, and that such payment be made a condition precedent to the annulling of the sale.

W. N. Potts intervened in the case, alleging that part of the property in question had been mortgaged to him by the defendant; that the mortgage was consented on his part in good faith, without knowledge of any defects in the title of mortgagor ; and in the event that the sale is annulled, claims to be protected, etc.

The case was tried by a jury, and from a judgment on their verdict in favor of defendant, the jdaintiff has appealed.

The property was sold under executory process, taken out by a creditor of the succession, to enforce a special mortgage.

It was purchased by the defendant, who, at the time of the sale, was - administrator of the succession of C. H. Morrison, deceased, to which the property belonged, the mortgage having been given thereon by' the deceased. It was bid off for two-thirds of the appraisement — the amount bid being $7,3331, the defendant being the sole bidder. It had been inventoried at $12,000, and was appraised before the sale at $11,000. Shortly after the sale, a part of the property purchased was conveyed, by the defendant, to Sigismund Meyer.

1. The first ground of nullity touching the capacity of the defendant to purchase, under the conclusion we have reached, it is unnecessary to decide.

The evidence respecting the. alleged agreement between the defendant and Meyer, is substantially to the effect:

That a short time before the sale took place, and on the same day, the defendant learned that Meyer intended bidding for the property. The parties met and had a conversation on the subject. The defendant stated, as a reason for wishing to buy the property, that he desired to purchase it for the minor child of Charles Morrison, and nephew of defendant. Meyer at first persisted in declaring his intention to hid on the property, but finally, Fanner having promised to sell Mm the King Place ” for $4,000, Meyer consented not to bid, absented himself from the sale, and Farmer, being the only bidder, the property pms adjudicated to him at two-tliirds of its appraised value. Subsequently, as agreed on, he made the conveyance to Meyer.

Even if the defendant had the right to bid for and buy the property, as he claims, Ms proposition that lie had the right to make any agreement with another person that any one else could have made, and that he was .in no manner trammelled about bidding, or in making agreements about the bidding or purchase of the property, by tbe fact of being administrator of the-succession, is not logical or correct. Even could he have bought at the sale, his duties as administrator and fiduciary, were binding upon him in all respects, and required him to do nothing adverse to the interests of the creditors, whose interests he represented and was hound to protect. As administrator, his first duty was to the creditors. And whatever may have been his relations and duties to others, and however great his appreciation of them, and though his faithful discharge of such duties, his fidelity and devotion may and do illustrate the best and holiest of human virtues, yet it still remains true, that under the law defining and regulating his official duties, liis first obligation was to the creditors. Instead of doing anything, or consenting to anything that might lessen the chances of a sale for a full price, he should have done all that was legitimate to cause, the property to bring the very highest price. It is true, that he was not hound to appear at the sale and hid, hut the inference that if he had not appeared and bid, Meyer would have obtained the property at the same price at which he bought, cannot be sustained. Although there were no higher bids against him, the uncle and tutor of the minor child of Charles Morrison, it does by no means follow there would not have been bidders against Meyer, a more stranger.

Nor can we accept as a fact, that in the absence of any agreement between the defendant and Meyer, neither of them would have bid more than two-thirds of the appraised valué of the property. Meyer says, he would have done so. Defendant says, he would not, but that is merely declaratory of his purpose and intention, no doubt, honestly made, but no man can tell what would have been his conduct under circumstances which never occurred; It is not certain and cannot be made certain, that he and Meyer, bidding against each other, would not have run the property mi to its full appraised value. But it is not by .any particular result that the principle underlying this whole matter is to be measured or applied.

The general rules of law, on any subject, áre not to be abrogated, evaded or impaired, by showing, that in a special case, no injury resulted from their violation. The wise purpose of the law is to prevent all tendencies to wrong or injury. The bargain in this instance was wrong, and even could we consider the question whether it was, in fact, injurious, the absence of injury is not susceptible of demonstration.

The defendant argues, that if the agreement had never been made, the property would have brought the same amount. What we just said will apply to this reasoning; but we may inquire what was the object or purpose of the agreement, if either party, by bidding one dollar or one cent over the two-thirds, would have gotten the property. Neither could have gotten it for less, and the sole purpose of the agreement was to prevent its being run up higher.

Under principles of law, firmly imbedded in every known system of jurisprudence, the sale must be annulled. These principles are best described by an eminent law writer, in the following words :

Agreements, whereby parties engage not to bid against each other at public auction, especially in cases where such auctions are required or directed by law, as in case of sales of chattels, or other property under execution, are held void; for they are uuconscientious and against public policy, and have a tendency to injuriously affect the character of public sales at auction, and to mislead private confidence. They operate virtually as a fraud upon the sale.” Story Eq. Juris. §290; C. C. 1847, 12 par.; 9 R. 486; 21 Wall. 448; 3 Johnson, 29.

The next question that presents itself is in regard to the liability of the defendant for rents. The rent is shown to be worth fifty dollars per month. For this he is liable from the date of the sale, 3d of March, 1877. He cannot be regarded as a possessor in good faith. He was bound to know that his title was vicious or defective.” C. C. 3452. Whatever, in point of fact, he may have believed, the law will presume that he knew of the defect in his title, even without regard to the fact that he contributed to create that defect.

Whatever may be the claims of the defendant for reimbursement of the sums applied to extinguish succession debts, and of expenses incurred for the preservation of the property and for improvements, etc., the succession cannot now he properly condemned to return the same, although the defendant is entitled to the payment of claims which may be established on these accounts, out of the proceeds of the sale of the property. Such settlement and reimbursement can only take place in due course of administration. It will be time enough for the defendant to urge those claims and enforce the privilege to which he is entitled, in proper proceedings for the distribution of the proceeds of the property. Such sale and account, within a reasonable delay, he has a right to provoke.

We have recognized the right of the succession to recover rents, but we.will restrain their collection until after the adjustment of defendant’s claims already mentioned.

The interven or was no party in the proceedings between the defendant and Meyer, and is not shown to have known of the defect or vice in the title. There was nothing to indicate such vice in the records. He acted, in taking the mortgage, upon the faith of a judicial sale translative of the property, was, therefore, in good faith and entitled to protection. 11 La. 401; 4 An. 286; 16 An. 436; 29 An. 604; 31 An. 7.95; 32 An. 420.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment thereon he annulled; and it is now ordered, adjudged and decreed, that the adjudication made on the third of March, 1877, at the sheriff’s sale, in the case of Godfrey vs. the succession of Morrison, of the property described in the petition, and the nullity of which is claimed herein, be annulled ; that said property he declared still to belong to the succession of C. H. Morrison ; that said succession recover of the defendant rent, at the rate of fifty dollars per month, from the date of adjudication to that of delivery of possession of said property, hut that the execution of this part of the decree for rents be stayed till the adjustment, of defendant’s claims against the succession, herein referred to, in due course of administration; it is further ordered, the right to assert which is hereby recognized and reserved.

It is further ordered, adjudged-and decreed, that the right of the intervenor to the special mortgage claimed ou part óf the property, as described in Ins petition, he and the same is recognized, and the said property returns to the succession, subject to the interven or’s said mortgage. The costs of both Courts to be paid by defendant and appellee.

The Chief Justice concurs in the opinion and decree, without expressing any views on the claim of the intervenor.


author: Poché, J.

text:
    No. 1031.
    The State of Louisiana vs. Alex McNeely.
    In a trial on a charge of murder, the accused has the right to show and prove previous threats of the deceased against him, and the dangerous chaiacterof the deceased, as evidence tending to rebut the presumption of malice, and to mitigate the offense charged. Held, that after such evidence had been introduced, the District Judge erred iu giving the following special charge;
    “ That if you find the accused made the first assault at the time of the hilling, then you should disregard the evidence of previous threats and of the dangerous character of the deceased. ”
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      W. .P. Hall, District Attorney, for the State, Appellee.
    <71 B. Wutlcins and 8. A. Hall, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The complaint of the defendant, presented by a bill ol exceptions, charges error in the following special charge given to tlie jury, at his trial on a charge of murder : ,

“ That if you find the accused made the first assault at the time of the killing, then you should disregard the evidence of jirevious threats and of the dangerous character of the deceased.”

Tlie bill informs us that the evidence excluded from the consideration of the jury had been introduced by the accused, not to prove justification, but to rebut the presumption of malice, which could have been drawn from the evidence of the State, showing that on the morning of the day on which the homicide occurred, the accused had gone to the house of the deceased and had deliberately shot at him. The State had objected to the introduction of the evidence of previous threats, etc., which objection had been overruled by the Judge, with the understanding, that in case it would appear from the testimony that the accused had been the aggressor in the fatal difficulty, the jury would be charged to disregard the evidence of previous threats, and of the dangerous character of the deceased.

As the State had reserved no bill of exceptions to the ruling of the Judge, in admitting the testimony in question, we are at a loss to appreciate, the binding or legal effect of the understanding referred to by the Judge. To our minds, it appears that the Judge should have ruled absolutely that the evidence was admissible or not, and that a conditional ruling on such an important question is not sanctioned by either law or authority. And in this connection, we note with no small degree of surprise and regret, that in a suit of this magnitude, we have not been assisted by the State’s representative, either by oral argument or brief.

Under the circumstances surrounding the introduction of the evidence of previous threats, we think that there is error, to the predjudice of the accused, in the special-charge which he complains of.

Conceding that such evidence could not justify the homicide, it is clear that it was admissible in rebuttal of the presumption of malice, and its consideration by the jury might possibly have reduced their verdict from murder to manslaughter.

In the case of the State vs. Ricks, 32 An. 1100, we held that the accused was entitled to have the jury to consider the dangerous character of the deceased, in connection with previous threats made by him against the accused, as evidence to show that from such circumstances, the accused had reasonable grounds to believe, or to fear and apprehend that he was in danger. Wharton, § 641.

The same doctrine was- laid down in the case of the State vs. Cooper, 32 An. 1085.-

If such testimony is admissible to show that the accused had grounds to fear that he was in danger, a fortiori should it be admissible to rebut malice or premeditation, and to thus mitigate the offense.

We wish it understood that our ruling herein is confined to the admissibility of the evidence under the circumstances of this case, to-wit: in connection with the evidence of prior acts, introduced by the State to prove malice, and to rebut the inference of malice from such evidence.

The verdict of the jury, and the sentence of the court of imprisonment at hard labor for life, are, therefore, erroneous.

It is, therefore, ordered, adjudged, and decreed, that the verdict of the jury be set aside, and the judgment of the lower court annulled, avoided and reversed; and it is now ordered, that this case be remanded to the lower court for trial, according to law and to the views herein expressed.


author: Todd^ J.

text:
    No. 1047.
    Fred. Endom vs. J. T. Ludeling.
    The Supreme Court is without jurisdiction, where the suit is to enforce a mortgage for §400 and interest against a third possessor, though the land subject to the mortgage may be worth more than one thousand dollars.
    APPEAL from the Fifth District Court, Parish of Ouachita. Biehardson, J.

      B. G. GoVb, for Plaintiff and Appellee.

      John T. Imdelmg, in propria persona.

      J. II. Dinlcgrave, on the same side.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd^ J.

The defendant is appellant from a judgment, which recognizes a judicial mortgage on a tract of land belonging to him, for four hundred dollars and interest.

Defendant’s ownership of the land is not controverted, but. the sole question we are asked to decide is, whether the land in question is subject to a debt of $400 and interest. The mere statement of the question makes it apparent that this Court is without jurisdiction to determine it. If the suit was to condemn the defendant personally to pay a debt, for the amount stated, of a third person, assumed by him, of course, no one would pretend that this Court would have jurisdiction of such a demand, and the fact that the claim is asserted, not against the defendant personally, but against his property i does not alter the case and confer jurisdiction.

This case comes clearly within the principle of our decision in the case of Loeb and Bloom vs. Arent et al., 33 An. 1085, which we have since liad occasion to re-afflrrn. 34 An.

It cannot be likened to the case of a party who asserts title to property seized for the debt of another,' and where such title is put at issue. In such a case the value of property determines the jurisdiction. Here, there is no dispute about the title of the property, but simply whether the property was, or is subject to a debt of $400 and interest.

Appeal dismissed.


text:
    No. 1046.
    J. F. Kelly vs. M. Bernstein.
    An appeal taken in a case where plaintiff seeks to enjoin a retail merchant from selling drugs and medicines, within certain prescribed limits fi;om plaintiff’s drug store, and for damages in the sum of $175, does notinvolve an amount sufficient to give jurisdiction to the Supreme Court, and will be dismissed, if the defendant, who claims that he has been damaged by plaintiff’s injunction, does not allege, ask for, and show damages exceeding one thousand dollars.
    APPEAL from the Fourth District Court, Parish of Winn. Bridger, J.
    TFto. A. Little, for Plaintiff and Appellee.

      Watkins & Bcarhorough, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.


text:
    No. 1056.
    E. A. Givens Sr. vs. S. T. Caudle.
    1. Where a suit is commenced by attachment, which is dissolved on motion, and no appeal taken therefrom by the plaintiff, and a judgment is subseqently rendered in favor of the plaintiff on the merits, in which no mention is made of the attachment, plaintiff and appellee cannot ask to have the judgment amended, by reinstating the attachment.
    2. Where the lessor furnished the lessee with corn, to be returned out of the crop to be made before the expiration of the lease, and the lessee binds himself to make certain improvements in part consideration of the rent, no action lies for the value of the corn and of the work to be done, so long as sufficient time remains within the term of the lease to deliver the one and perform the other.
    APPEAL from the Third District Court, Parish of Lincoln. J. A. Zamsey, Judge, ad hoe.

      A. Barksdale & G.'L. Gaskins, for Plaintiff and Appellee.

      J. B. Holstead, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 1043.
    Mrs. S. E. Myers, Administratrix, and C. W. Eason, Husband, Co-Administrator, vs. T. G. & F. E. Brigham.
    1. After the dissolution of the community by the death of the wife, the husband, as its former head, has no power to convey title to any greater part of community property than his undivided part thereof, and his vendee becomes simpljr a co-proprietor with the heirs or succession of the wife. Affirming 29 An. 663; 32 An. 848 ; 33 An. 584, and prior cases.
    2. In a petitory action, by the legal representatives of the wife, to recover her share in such property, the citation on the tenants in possession will interrupt prescription, although the principal defendants be not cited, and do not appear until after ten years.
    3. The i>urchasers under such sale are entitled to restitution of so much of the price as may have been used in satisfaction of community debts, but prior tender of such amount, in case of a private-sale, is not essential.
    APPEAL from the Sixth District Court, Parish of Morehouse. Brigham, J.

      Todd <& Todd, for Plaintiffs and Appellees.
    D. 0. Morgan, for Defendants and Appellants.

      W. W. Farmer, on the same side.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 1064.
    D. C. Brown vs. E. M. Ragland.
    As the amount in dispute, shown by the pleadings, does not exceed one thousand dollars, this Court has no jurisdiction, and the appeal is dismissed.
    The amount claimed is $1413, subject to credits, amounting to $670.
    APPEAL from the Fifth District Court, Parish of Ouachita. Biehardson, J.

      T. 0. Benton, for Plaintiff and Appellant.

      B. G. Morgan and B. Bay, for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.


text:
    No. 1044.
    The State of Louisiana ex rel. Boyd vs. Austin Green, Clerk of Fifth District Court.
    The cleric of a District Court has no power, in the absence of the Judge, to make a decree accepting the cession of an insolvent debtor for the benefit of his creditors, and staying proceedings against his person and property. It is a judicial act, equivalent to a judgment — which can be exercised by the Judge only. The Constitution did not authorize the legislature to confer on such clerks the power of rendering judgments, and the legislature has not done so. Prohibition issued and made perpetual.
    ApPLICATION for a Prohibition.

      T. Stillman, W. W. Farmer and F. Garrett, for the Relator.

      F. Fay, for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition.

The Relator, alleging himself an attaching creditor of M. J. Waldenberg, complains that the latter, desirous of talcing the benefit of the insolvent laws, has applied to the District Court in Ouachita Parish, for an acceptance of the surrender, of his property for the benefit of his creditors, and for a stay of all judicial proceedings against his person and -property; that, in the absence of the Judge of said Court, the clerk thereof has assumed to act in the place of said Judge, and without any warrant has granted the relief sought; that the effect of the decrees made by said clerk will be to arrest the sale ordered by said Court, of the goods attached, to the injury of Relator; that said clerk has usurped a jurisdiction not conferred upon him, and that he should be prohibited from taking cognizance of the cause, and that said Waldenherg should be forbidden from taking advantage of such action of the clerk. .

The clerk and Waldenherg make return that the orders accepting the surrender and staying further proceedings are authorized by law, •and, therefore, valid and binding.

It is no objection to this proceeding that the orders had already been made when this application was submitted.

The Code of Practice, 853, provides that, if an inferior Judge has rendered judgment in a case where he had no jurisdiction, and the execution has issued, the court may direct its order, as well to the party prosecuting, as to the officer charged with the execution, forbidding them to proceed in the execution, in the same manner as if the prohibition ,had been addressed to-the Judge before issuing the order of execution.

Orders granted by a clerk, acting judicially, have the same effect as though made by the Judge of the court, under like circumstances, and are reviewable in the same manner, and to the same extent. 12 An. 612. This is so true, that where such orders have been properly granted, the Judge cannot rescind those which could be set aside on appeal, or by action in nullity. 14 An. 424; 15 An. 19; 18 An. 687.

Indeed, a prohibition lies to an inferior Judge only after he has, by doing some act, exceeded the bounds of his jurisdiction, and usurped the exercise of powers with which he was not vested.

When the case was submitted, Waldenburg applied for- an order to arrest the sale of his effects then about to take place, but we declined the relief, as the restraining order made herein, was an obstruction to the effect and execution of the order to stay, made by the clerk, bjr virtue of which only, the sheriff could have been enjoined from executing the order of sale in the attachment suit.

The proceeding being authorized, the question to be solved is simply:

Whether the clerk of the District Court had the right and power to act judicially in the matter, as he has assumed to do, during the absence of the District Judge from the parish.

By Article 122 of the Constitution, which is similar to those in previous Constitutions which have received judicial construction, it is provided, that the legislature shall have power to vest in clerks of courts authority to grant such orders, and to do such-acts as may be deemed necessary for the furtherance of justice, and in all cases powers thus vested shall be specified and determined.

This Article does not confer upon the legislature the power of vesting in such clerks any authority to render judgments; that is- to exercise the powers of a Judge, which consist in determining contested issues presented.

The difference between an order and a judgment is elementary. 33 An. 1425.

In furtherance of the power conferred on it, the legislature adopted Act 106 of 1880, p. 134, by the 4th Section whereof, “clerks of the-District Courts are authorized, in the absence of the District Judge from the parish, to convoke meetings of creditors of insolvent debtors.”

The argument made in support of the validity of the orders complained of, is that the right to accept the surrender is implied in that of ordering a meeting of the creditors, and that the law provides that, when such meeting is called, the order to stay proceedings shall issue.

■ The requirement of the Constitution that, in all cases, powers vested -in clerks by the G-eneral Assembly shall be specified and determined, leaves no room for inferences or conjectures of any kind. The powers not expressly delegated to tlie clerk are formally retained, to be exercised exclusively by tlie Judge.

In 2 An. 784, which arose under the Constitution of 1845, and under the Act of May 26, 1846, Ho. 96, conferring certain judicial powers on clerks, among which was not included that of homologating the deliberations of creditors, it was urged, that where no opposition had been made, the power to homologate was incidental to that of ordering the sale of succession property, but the Court refused to recognize the doctrine, holding that the homologation was a judicial act. See also, 5 An. 245; 10 An. 496.

The acceptance of a surrender, and the important decree staying proceedings, are not routine or ministerial orders, which are to be granted, as a matter of course, because they can wrong nobody. They require the application of legal knowledge and the exercise of a judicial discretion, such as a Judge alone possesses.

Secs. 1789 and 1790, II. S-, provide that: Whenever the Judge shall be convinced that tlie debtor who wants to surrender his property lias complied with all the formalities prescribed, he shall endorse on the schedule that the cession of all the property of the insolvent is accepted for the benefit of his creditors, and shall order that a meeting of the creditors be called, and that all proceedings against the person and property of the debtor be stayed.

The word convinced,” was not used without deliberation. It means, that it is only after the Judge will have examined and satisfied himself that the exigencies of the law have-been fulfilled, that he will grant the relief sought. It assumes in the Judge an extensive knowledge of the law, which it does not presume in clerks of courts, who are ministerial officers only, not required to possess the qualifications of a lawyer, or of a magistrate, who are clothed with powers, tlie exercise of which can harm no one.

The legislature could not have intended and did not propose to confer upon clerks of District Courts the power of calling that first meeting of creditors, which can be convened by the Judge, unless after accepting the cession and staying proceedings the Judge had inadvertently omitted to convene the creditors. The meetings which the clerks are authorized to convoke are, for instance, such as may be necessary to elect a syndic, to advise upon the propriety of a sale, to fix the terms and conditions thereof, or such other meeting which may become proper after the cession of property has been accepted and proceedings against the insolvent have been arrested.

The order accepting a cession and staying proceedings, is, indeed a judgment -which demands the exercise of legal discrimination, hnd which, when granted, can be set aside only by appeal, or action in nullity. 15 An. 19 j 18 An. 687; 14 An. 424 ; 7 La. 62 j 12 M. 32.

In granting it, the clerk, in this instance, has unlawfully exercised a jurisdiction which is vested in him only who has the right of judging, that is, of hearing and determining contentions. C. P. 76. The consequence is the absolute nullity of his action, however honest it may have been.

It is, therefore, ordered and decreed, that the preliminary restraining order herein made be maintained, and that the prohibition asked issues and be made perpetual, with costs.


text:
    No. 1067.
    E. A. Sterling vs. Heirs of J. T. Sterling. Cobb & Gunby, Intervenors.
    An order extending time for the filing of a transcript, granted with the. reserve of the rights of the appellees, if any, to move for the appeal on proper grounds, will be rescinded on a motion to dismiss, when it is proved that the ground on which time was asked was insufficient. It is no excuse that appellants could not, on account of pecuniary embarrassment, have furnished an appeal bond before the second judicial day following the return day. It is not an event not within his control.
    APPEAL from the Fifth District Court, Parish of Ouachita, liiehardson, J.

      W. W. Farmer, Gobi & Gunby and F. P. Stubbs, for Plaintiffs and Appellees.

      B. Bay, M. J. Liddell and L>. 0. Morgan, for Defendants and Appellants;
   The opinion of the Court -was delivered by

Bermudez, C. J.


author: Todd, J. Fenner, J.

text:
    No. 1061.
    John Chaffe, Administrator, vs. S. Meyer.
    Where a person intending to bid at.a sale of succession property is induced by the administrator of the succession not to do so, by an offer to convey to him that part of the property desired.by him, in case the administrator himself succeeds in buying the property, and the administrator does buy, and though he may otherwise have been competent to buy, and after his purchase conveys the part promised to the person with whom he made the agreement, the title to the latter will be null, and he will be liable for rents to the succession from the sale to him.
    APPEAL from the Fifth District Court, Parish of. Ouachita. D. C. Morgan, Judge, ad hoe.

      JR. JRiehardson and Boatner & Liddell, for Plaintiff and Appellant.

      JR. G. Gobi) and 11. Bay, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

On Application for Rehearing by

Fenner, J.


author: Berjiudez, C. J.

text:
    No. 1155.
    J. S. Copes vs. Guillebeau, Sheriff, et al. and A. Declouet et al. vs. Guillebeau, Sheriff, et al. Cumulated.
    Sales of property made in violation of Act No. 3, of 1873, are not of absolute, but only of relative nullity; and wlien the holder of a concurrent mortgage buys the mortgaged prop* erty at private sale, pending proceeding for the seizure and sale ol* such property by the other concurrent mortgage creditors, the qualities of creditor and owner become united in said purchaser and his mortgage is extinguished by confusion. '
    APPEAL from tlie Twenty-First District Court, Parisli of St. Martin. ffontelieu, J.

      JJ. N. Ogden, for J. S. Copes, Plaintiff and Appellant:
    The power to buy a mortgage note does not convey the power to postpone the payment of that note to others of the same series.
    The power to “ pay debts and adjust accounts ” does carry, as necessarily involved in it, the right to acknowledge debts and notes.

      Act No. 3 of 1878 forbids tlio sale of property, pending proceedings to enforce a mortgage upon it, and any sale made in violation of that Act is an absolute nullity, and can produce no effects.
    "When one holding a mortgage note of a series buys the property, liis mortgage is only suspended, not destroyed. It will revive when the cause of confusion is removed by a forced sale of the property to pay concurrent notos, and must be allowed to participate with them in the proceeds. See Millaudou'vs Allard, 2 La. 547.
    The purpose to novate a debt must be clearly expressed.

      A. R. DeBlanc and li. S. Berry, for A. Declouet and tlie Heirs of Mrs. Delhomme, Plaintiffs and Appellants :
    "When novation takes place by the substitution of a new debtor, the privileges and mortgages securing the former claim are not transferred to that which is substituted to it, unless the creditor has expressly reserved them. O. C. 2195 (2491); Marcadé, Vol. 4, 583, 587.
    ■When prescription has already run, parol evidence cannot be received to prove auy acknowledgment or promise to pay any debt or liability contracted in writing. C. C. 2278-4.
    An already acquired prescription cannot be renounced so as to affect the rights of others. 1 An. 330; 2 An. 546, 927; 8 An 505 ; C C. 3466 (3244).
    A mortgage and privilege may be extinguished as to one of the creditors, and continue to exist as to the others. 25 An. 559.
    Mortgages and privileges are extinguished when the creditor acquires the ownership of the thing subject to the mortgage and privilege. C. C. 3411, (3374), 3277, (3244); 15 An. 407; 25 An. 559, 560.
    The overseer’s privilege on the crops and proceeds, for services by him rendered, do not affect the land, nor the vendor’s lien and mortgage 24 An. pp. 281, 282.
    The proceeding by rule is the proper proceeding to compel the Sheriff to either give or complete a title. 1 An. 330; 24 An. 250; 25 An. 146, 147.
    The Sheriff, in his capacity as such, cannot control the execution of a judgment, and seize and offer for sale, under the judgment, in spite of the judgment creditor’s protest. 5 N. S. p. 707.
    The adjudicatee at a Sheriff’s sale is hound for only the excess over the amount of prior mortgages and privileges. C. P. 679, 683, 718; 25 An. 146, 147.
    The Sheriff can himself institute a proceeding to compel adverse claimants of the proceeds of a sale made by him to litigate their rights. 1 An. 144.
    The action of overseers, for their salaries, is prescribed by three years. C. C. 3538 (3503).
    Act No 3 of the Legislature of 1878, was passed for the exclusive benefit of successful plaintiffs in action, to recover possession of lands, Or subject them to existing mortgages, and not to abridge the right of disposing of one’s property, except in so far as the disposal prejudices an already acquired right.

      A. Simon, for the Sheriff.
   The opinion of the Court was delivered by

Berjiudez, C. J.

The object of controversy in these two cases, which are to be determined together, by consent of parties concerned, involves a distribution of the proceeds of a judicial sale in the hands of a seizing creditor, and the right of the latter to a sheriff *s deed, in furtherance of the adjudication made to them of the property.

From a judgment allowing the proceeds of sale exclusively to the seizing creditors, whose demand for damages was reserved, and directing the Sheriff to make and deliver to them a deed to the property, this appeal is taken. The appellees pray that the judgment be amended by allowing the damages asked.

The record discloses the following facts :

On the 5th of March, 1870, Mrs. Charles Delhommesold the Magenta Plantation to W. II. Seward, Jr., for $31,000, part cash, part on time, for notes maturing in 1870, 1871, 1872 and 1873.

In 1875, executory process having issued on a note maturing in 1873, an injunction was obtained to arrest the sale of the property. The case was removed to the Federal Court, whose judgment in favor of the seizing creditors was affirmed by the U. S. Supi'eme Court in 1881. On the return of the mandate of that Court, the seizure and sale proceedings took their course; the property was offered for sale, and adjudicated to the seizing creditors for less than their claim. J. S. Copes having filed a third opposition, claiming to hold a note secured concurrently with the plaintiffs, by vendor’s privilege and special mortgage, and other claims secured by privilege, obtained an order directing the Sheriff to retain the proceeds of sale, and prayed to bp paid pari passu with the seizing creditors, out of the amount of sale retained by them. The adjudicatees haying failed to pay to the Sheriff the amount of their bid, that officer proceeded to readvertise the property, but was enjoined from offering it for sale by the purchasers, who ask that they be declared the owners thereof, and that the Sheriff be commanded to make and deliver a deed to them as such, and be condemned to pay them certain damages.

The seizing creditors resist the third opposition of Copes on several grounds. They deny that he ever acquired the note with concurrent security, privilege and mortgage, and charge that the note passed to him with the express understanding that the privilege and mortgage, by which it was originally secured, would rank next. They aver further, that if it ever was transferred with the security claimed, the debt which it once evidenced, together with the asserted privilege and mortgage, has been extinguished by prescription, by novation and by confusion. They allege tortious acts against Copes, and claim damages from him.

Of these defenses, we propose to examine, presently, the latter only, and will consider the claim for damages further on.

On the trial of the differences of the litigants, it was established that, during the pendency of the injunction suit before the Federal Courts, the property changed hands.

In May, 1877, Geo. F. Seward, who had previously acquired it from W. II. Seward, Jr., sold it to Charles Starr, who, in March, 1879, in turn sold it to J. S. Copes, the third opponent. The first sale was for $10,000. The second was' for $15,387.57, out of which the purchaser retained $8,300, to pay, whenever exigible, the Delhomme mortgage claim to whomsoever may lawfully demand the said sum, as the said claim is now in litigation and undecided in the U. S. District Court in New Orleans;” and, for the remainder of the price, the sum of $7,087, the purchaser furnished three promissory notes, which were to be delivered to Dr. Copes, in payment of his mortgage claim, in accordance with special instructions contained in a power of attorney. The third sale by Starr to Copes was for $8,220, the amount then due to the seizing creditors, A. Declouet and Mrs. Delhomme.

The act of sale to Copes refers to the vendor’s title, and contains an express stipulation that Copes did not assume, and would not bo liable for, any mortgage claim whatever on the property (beyond that sum).

It is insisted that, from the very instant that Copes acquired the real estate on which he claims to have a privilege and mortgage to secure the purchase note which he held, the security on which he rests his actual pretension to a concurrent participation in the proceeds of the judicial sale was completely extinguished. Indeed, the Code expressly provides for such extinction by the creditor acquiring the ownership of the property encumbered; R. C. C. 3277, 3411 ; and the jurisprudence is well settled, that the qualities of mortgagee and owner of the thing mortgaged cannot be united in the same person at the same time. 15 An. 407; 25 An. 559; V. Pothier Hyp. 177; Troplong Hyp. 4, 861; Dalloz Hyp., Ch. 2, Sec. 9, N. 35; C. N. 2180.

But the third opponent contends that, as the purchase which he made is violative of a prohibitory law, Act 3 of 1878, which forbids the sale of property pending proceedings to enforce a mortgage upon it, it is an absolute nullity which has produced no effect. He insists, further, that oven if the property has passed to him, his mortgage was only suspended, and was not destroyed; that it has revived the moment that the cause of the confusion was removed by a forced sale of the property to pay concurrent notes, and because of such revival, he must be allowed to participate in the proceeds.

The fallacy of the proposition is the result of the erroneous assump-. tion that such sales are absolute nullities, established for the preservation of public order and good morals, and not for the benefit of individuals, and are not susceptible of ratification, which is not so. See 33 An. 659, 1429.

A further ready answer is, that the Act mentioned was passed for. the protection and advantage of successful plaintiffs in actions to recover lands, or to subject them to existing mortgages.

That Act was not designed to abridge the right of disposing of one’s property, unless in so far as it sought, prejudicially, to affect previously acquired rights thereon.

The authority relied upon, in 2 La. 547, can have no application to a case like the present one, in which it appears, that the purchase price, the agreed value of the property sold and purchased, was computed so as to be sufficient to meet, dollar for dollar, the debt of the seizing creditor, whose privilege and mortgage were recognized, as the same could not be and were not disputed.

It is patent to our mind, that Copes could not continue to have a privilege and a mortgage on the property after he acquired it, and that while the security which he once thus had has ceased to exist in his favor, the guarantee has continued in all its vigor for the benefit of the other privilege and mortgage creditors. 25 An. 559.

The other claims, which Copes asserts as entitled to be paid out of the proceeds of the real estate, apparently amount to $18,737.12, and embrace alleged advances, keepers’ fees, overseers’ wages, hire of mules, said to have been due Charles Starr, by whom they, it is sa.id, were transferred to the third opponent, who now asks payment in his rights. The bill runs from January, 187C to 1878. It was reduced in the opposition to $10,886.93, and appears to have been acquired for the nominal sum of one dollar.

The objections to that claim are: that it is not due and not proved; that it is prescribed; that it is extinguished by a counter larger claim for damages, for which Starr is liable, in not having kept the buildings insured, which wore destroyed by fire; that he has not accounted for his administration of the plantation while under his custody, etc.

Starr acquired the place on the 2d of May, 1877. From'that day prescription began to run against whatever claim, if any, he then had, and which then ceased to increase, as he can set irp no such claim against property belonging to himself.

We, find no evidence that Starr’s claim was transferred to Copes with a subrogation to the privilege by which it is alleged to be secured. Were it so, however, Copes could have no greater rights than Starr himself, against whom the prescription of one and three years must prevail. The latter is a bar to all open accounts. The claim, if it ever existed, was due and exigible on the 2d of May, 1877, and the third opposition, in which the sum is asked to be paid, was filed on the 15th of July, 1881. R. C. C. 3538.

In their answer to Copes’ opposition, the seizing creditors charge that he coalesced with Seward in keeping them out of the exercise of their rights by frivolous and wrongful protracted litigation, and that he has thereby inflicted upon them damages to the extent of five thousand dollars.

We are not satisfied that the averments of the answer are such as can prima fade fasten a responsibility on Copes. The evidence under them is unsatisfactory and insufficient to award any damages against him. The District Judge appears to have so viewed the claim, and properly reserved the rights, if any, of the seizing creditors, to claim such damages in another proceeding.

It remains to be said, on the last branch of this litigation, that the adjudication of the proxierty to the seizing creditors by the Sheriff was legal and binding. It has, consequently, vested title in them to the land. C. P. 690.

"While the Sheriff cannot be blamed for refusing, as he did, to deliver a.deed to the adjudicatees, and for readvertising the property at the time, and cannot be held responsible in damages, C. P. 689, it is no less true that the plaintiffs, as seizing creditors, having a privilege and a conventional mortgage first in rank, had a right to withhold the amount of their bid, which was inferior to their claim. C. P. 679, 683, 718; 1 An. 144; 25. An. 146.

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


author: Poems, J.

text:
    No. 1145.
    The State of Louisiana vs. Charles B. Stewart.
    Section 7 of Act No. 44 of 1877, does not repeal or conflict with Section 992 of the Revised Statutes, requiring, in certain criminal cases, the service on the accused of the list of the jury which are to pass on his trial, two entire days before his trial.
    The list of jurors ordered tobe drawn by the Judge, in the exercise of the discretion vested by Act 44, Section 7, must be served on the accused in accordance with Section 992, Revised Statutes.
    In a preliminary examination, the accused has the right of having the testimpny of witnesses in his behalf, taken down in writing, ‘certified and preserved, and the testimony of a witness thus taken will be admitted in evidence at the jury trial, if the witness is shown to be absent, a non-resident of the State, and not obtainable; without any fault of the accused.
    APPEAL from the Twelfth District Court, Parish of Bapides. 'Harbin, J.

      IS. Cf. Hunter, District Attorney, for the State, Appellee:
    The law does not require that the list of tales jurors he served on the accused two days before trial. 15 An. 297; 30 An 536; State vs. Gunter, 14 An. 461; 11 An. 685. Evidence taken without authority of law is ex parte — binds no one and cannot he used, unless by consent of all parties.
    The law which permits the introduction of the testimony, taken on preliminary trial contradictorily with the accused, refers to the testimony of the State. The State cannot use this testimony without first showing that due diligence to procure the attendance of the witness had been used. 28 An. 105, State vs. Moses Harvey. The policy of our law is to have the witnesses testify in the presence of the jury, and it is only under extraordinary circumstances, and when all of the forms of the law have been complied with, that even the State, whose testimony has been Teduced to writing, in conformity to law, will be excused or permitted to deviate from this requirement. The law relating to the introduction of testimony of a witness who is dead has no application when the witness is living.
    There is no law authorizing the taking in writing by the committing magistrate tbe testimony of the defense, and evidence thus taken, without authority of law and against the protest of the State, binds neither the accused nor State. R. S. See. 1010.

      W. J?. Blackman and J. &. White, for Defendant and Appellant:
    "Where, as iu this case, the accused had been served with a copy of the indictment and venire ; had been arrainged, had plead, and his case set for trial, for a particular day, and the District Judge ordered the Jury Commissioners to draw forty additional jurors, to serve as talesmen for the third week, and forty more to serve as regular jurors for the fourth week of his court, the accused is entitled to the service and the delay of the list of jurors so drawn. Revised Statutes 1870, Sec. 992; Act 44, Sec. 7, 1877.
    The committing magistrate, on a preliminary trial, ought to take and certify the depositions in favor of the accused, as well as those in favor of the State. Chitty’s Criminal Daw, Yol. 1, p. 64.
    “Themethod of trial, the rules of evidence, and all other proceedings whatsoever, in the prosecution of crimes,. offenses and misdemeanors,” in Louisiana, shall he according to the common law of England, as it existed in 1805. Revised Statutes, Sec. 976.
    Depositions of witnesses taken on a preliminary trial, either for the State or the accused, are admissible in evidence for either party, where the witness is absent from the State, dead or unobtainable. Wharton’s Criminal Evidence, paragraphs, 2á9, 230 ; Bishop’s Criminal Procedure, Yol. 1, p. 1083; 28 An. 105; 33 An. 1332.
   The opinion of the Court was delivered by

Poems, J.

The defendant urges two errors to his prejudice, during the progress of his trial, under an indictment for murder:

1. He complains that he was forced to trial over his objection, without legal service on him of the full list of the jury which were to pass ou liis case.

2. He charges error to the ruling of the Judge, iu excluding the written testimony of a witness who liad testified in his behalf at the preliminary examination, and whose attendance could not be obtained at tiie trial by the jury.

1. The record shows, that a few days previous to the trial of this case, the court ordered the Jury Commissioners to draw forty additional jurors, to serve as talesmen for the third week of the term ; that the list of jurors thus drawn was served on the accused on the day of his trial only, and that after exhausting the regular panel, four of the jurors, thus drawn, were sworn and served in the jury which tried the case. The order of the Judge was predicated ou Section 7 of Act No. 44 of 1877, which reads as follows :

“ Whenever the District Judge thinks proper, he shall require the Jury Commission to draw additional jurors for service, either as regular jurors, or as talesmen, and they shall be summoned without delay, or within the time the said Judge requires ; but nothing' herein shall ho construed so as to limit the right of the Judge to order the summoning of talesmen from among the bystanders, or persons in proximity to the courthouse.”

The question presented is, therefore, whether the list of jurors drawn as talesmen, under the Section just quoted, is to be governed by Section 992 of tlie Revised Statutes, which imperatively requires, that in all cases where the punishment may be death, or imprisonment at hard labor for seven years or upwards, a list of the jurors which are to pass on the trial of the accused, shall be served on him at least two entire days before the trial.

As the title of Act No. 44 of 1877 contains no reference to Section 992, it is clear that tire legislator did not purport, as he could not constitutionally pretend, to amend that Section, which therefore remains in full force, and hence, the accused was entitled to legal service of the list or lists of jurors drawn, and which were to pass on his case. As the legislature had directed in other Sections of Act 44 of 1877, that the regular jury should be drawn at least fifty days previous to the next term of the court, the object in enacting Section 7 was to provide for the possibility of the need of additional jurors, which could not have been foreseen before the opening of the term, and previous to the action of the Grand Jury. Hence, the Judge, after considering the number and character of criminal cases to be tried, the number of the regular jurors, absent or not found, or excused, was vested with' the discretionary power to provide for the deficit by drawing additional of jurors or talesmen, without the delay prescribed for the drawing the regular panel.

But we see nothing in the enactment which excepts jurors, so drawn, from the operation of Section 992, R. S., which secures to the accused a valuable and very important right.

The fact that the jurors drawn under that Statute are designated as talesmen, does not assimilate them to the talesmen who are called from among the bystanders, a list of whom is not, and cannot be made in advance, and cannot, therefore, be served on the accused.

The very Section which authorizes the drawing of such jurors, expressly recognizes the wide difference between such talesmen jurors, and the talesmen from the bystanders, or persons in proximity to the courthouse. We think, therefore, that the District Judge erred in forcing the accused to trial, without legal service on him of the list of talesmen jurors which were to pass on his trial.

2. Tlie second bill of exceptions presented by the defendant shows, that at his preliminary examination, under the charge for which he was subsequently indicted and convicted of manslaughter, he introduced a witness who was shown to be afflicted with a disease of the lungs, incurable in its character, and who was a non-resident of the State; and that for those reasons, his counsel requested the District Judge to order his testimony to be taken down in writing and properly certified. The order was given, and the testimony in chief was ■written and duly certified; but his cross-examination was not written, on objections made thereto by the District Attorney.

At the trial, the witness was shown to be absent from the State, and to be in the State of Florida, where he resided; whereupon the accused offered his testimony, as written at the preliminary examination, which testimony was excluded on the objection of the District-Attorney.

We think that the reasons advanced by the Judge, in support of his ruling, are untenable, and that he erred in excluding the testimony. It is true, as contended by the District Judge, that Section 1010, E. S., directs that in preliminary examinations, the depositions of the State witnesses alone are to bo taken down in writing ; but it is equally true, that in this State, the forms of indictment, the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, must be acccording to the common law of England, as it existed in 1805, unless otherwise provided. 33 An. 1332, State vs. McNeil. Now, under the common law, criminal jurisprudence has firmly established the right of the accused to be defended by counsel, and to have his witnesses heard at the preliminary examination of the offense charged against him. And under provisions of the law of England, directing that the testimony of witnesses against the accused at a preliminary examination, be reduced to writing, it has been held that the Justice ought to take, and certify as well the information, proof and evidence, which tend in favor of the prisoner, as thosewhich are brought forward against him.” Chitty’s Criminal Law, Yol. 1, pp. 60 and 64.

In keeping with these rules, this Court admitted in evidence the testimony of a witness taken in writing at the coroner’s inquest, in favor of the accused ; the witness having died before the trial before the jury. State vs. McNeil, 33 An. 1332, and authorities therein cited.

In the present case, the witness being shown to be out of the State, and, therefore, not within the process of the Court, the same reason existed for the admissibility of the testimony of the witness taken down in writing at the preliminary examination.

The accused had foreseen the possibility of the death, or of the absence of that witness, at the time of his trial, and had given full and fair knowledge of the facts, which made his anticipated absence probable, to the State’s Attorney; and had, in view of such emergency, moved that his testimony be taken in writing and preserved,

No attempt -was made by the State to show that the accused could, by due diligence, have procured the attendance of his non-resident witness j and it is well settled, that the absence of such a witness would not have been a good ground for a continuance. State vs. Nicholson, 14'An. 798. We find no force in the reason of the District Judge, that the testimony should have been excluded, because the cross-examination had not been reduced to writing. It was within the power, and it was manifestly the duty of the Judge, to have overruled tlie unfounded objection of the District Attorney to the writing of the witness’ testimony under the cross-examination, and the accused cannot be deprived of his legal testimony by the course pursued by the District Attorney and by the Judge.

Under the peculiar circumstances of this case, the excluded testimony was undoubtedly admissible, and the accused has been injured by its rejection.

It is, therefore, ordered, that the verdict of the jury be set aside, and the judgment appealed from annulled and reversed -, and it is now ordered, that this cause be remanded to the District Court for trial according to law, and to the views herein expressed.


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    No. 1162.
    Ludger Lemelle et al. vs. James M. Thompson. J. I. Beauchamp, Testamentary Executor, et al., Third Opponents.
    Where property "has been sold tinder an hypothecary proceeding against a third possessor, the party procuring the sale is not entitled to claim the proceeds, in preference to the mortgage creditors of such third possessor, by denying his ownership thereof, where, in the petition for its sale, his title is acknowledged, and if the mortgage of the seizing creditor has perempted, the opposing creditors of the third possessor are entitled to the proceeds.
    An inscription of a minor’s mortgage preserves the mortgage during the tutorship, though it should continue for more than ten years 5 but if not re-inscribed in ten years after its termination, the mortgage will perempt. -Nor does it matter if the mortgage is evidenced by a judgment recognizing it, and fixing its amount. Art. 3369 O. C. construed.
    APPEAL from tlie Thirteentli District Court, Parish of St. Landry. Hudspeth, J.

      F. L. Richardson, K. JBaillio and J. A. Breaux, for Plaintiffs and Appellants:
    1. Creditors cannot claim more than their debtor could. If their debtor had any rights, they date from 1878.
    2. Purchasers having assumed thepayment of the mortgage due minors, nofurther recordation was necessary, as to them.
    3. In addition to the assumpsit of these purchasers, the minors’ mortgage had been legally recorded, and in time, (as against opponents, whose rights date from 1878) hy recording the judgment recognizing the minors’mortgage. Mathilde Morrison vs. Citizens’Bank, 27 An. 401.

      4. The Court of Appeals has heretofore decided that the minors’ mortgage was never extinguished by the pretended sale. The property i*, therefore, in effect, still owned by those who assumed the mortgage. McGloin’s Circuit Court Reports, p. 246.
    5. By claiming the proceeds of the sale, opponents admit the validity of the sale. The only question is, therefore, one of rank. 16 An. 2fc3 ¡ 24 An 289 ; 29 An. 274.

      If. It. Garland and J. N. Ogden, for Third Opponents and Appellees:
    Whore a judgment once recorded is not reinserted within the ten years prescribed by law, it perempts, and other jhdgmentor mortgage creditors whose claims were recorded subsequently, outrank the judgment which has thus become perempted. See 2 An. 100, 520; 30 An. 2 and 11; 24 An. 2U; 23 An. 537; 20 An. 224, 486, 508; 16 An. 233; 29 An. 324; 23 An. 275 ; 21 An. 204 -, 20 An.. 216; 24 An. 193; 23 An. 261- Hennen, p. 1295, No. 12; p. 1296 No. 14. Louque’s Digest, p. 013, Nos. 2-3-4-j; p 614, Nos. 8-18.
    Where a minor has elected to merge his claim against his tutor into a judgment, and has had the same recorded, which from that moment becomes a judicial mortgage in favor of said minor, the said judgment and judicial mortgage become subject to tbe laws of revival and reinscription. 24 An. 211; 23 An. 5,87; 30 An. 2, 11; 23 An. 261.
    The pendency of a suit to enforce a mortgage does not obviate the necessity of reinscription. 30 An. 2, 11.
    When a person reaches the ago of majority, the laws of prescription which provides for his protection during liis minority cease to govern his actions and lights, and he is subject to the same laws of prescription as other persons. The laws which suspended prescription during times of war did not apply the moment hostilities ceased; so it is with minors, the law excepting their tacit mortgage from registry ceased to protect them the moment they reached the age of majority. Troplong de la "Prescription, Yol. 2, Section 706.
   The opinion of the Court was delivered by

Todd, J.

This ease presents a contest over the proceeds of the sale of certain immovable property described in the pleadings.

The property was sold at sheriff’s sale on the 36th of April, 1883, under executory proceedings instituted by tlie plaintiffs against James M. Thompson, as the'third possessor thereof, to satisfy a judgment in their favor against Francois Lemelle, signed on tlie 12th of July, 1870, and recorded on the 30th of same month, in which judgment an alleged legal mortgage on the property, sold for $3,000, and interest, was recognized.

Before the sale in question was made, third oppositions were tafeen out by George Willard and wife, and J. I. Beauchamp, testamentary executor, mortgage creditors of Thompson, who claimed to be entitled to the funds in preference to plaintiffs, the seizing creditors, whose mortgage against tlie property, it was alleged, if it ever existed, had not been reinscribed within ten years from the first inscription.

From a judgment in favor of tlie third opponents, giving them the proceeds in question, the plaintiffs have appealed.

They advance three reasons why tlie judgment appealed from should be reversed:

1. Because Thompson was not the owner of the property sold, and his creditors could, therefore, have no mortgage thereon.

2. That tlie peremption of plaintiffs’ mortgage, and prescription of their judgment, had not been pleaded; and,

3. That their mortgage, being a legal mortgage, originally of minors against their tutor, recognized by a judgment, and its amount fixed therein, and seasonably recorded, no reinscription was necessary for the preservation of the mortgage. ' ■

First. In the petition of the plaintiffs for the order of seizure and sale, under which the property was sold, it was alleged that Thompson had purchased the property on the 25th of June, 1878, under an act duly witnessed and authenticated. Thompson being sued as third possessor, such an allegation was certainly a distinct and positive recognition of his title to the property.

Second. The vital question in this case is not one of prescription,, but of peremption. It is not whether the judgment of plaintiffs has prescribed, but whether their mortgage ceased to have effect, or at least had lost its precedence over those of the third opponents, for want of reinscription within ten years. As will be seen from our statement of the pleadings, it was substantially charged that plaintiffs’ mortgage had perempted, or ceased to have effect, for want of reinscription within the prescribed time. This was certainly sufficient. •

Third. The most serious question presented is, whether the plaintiffs’ legal mortgage against their tutor having been once inscribed, a reinscription was necessary to preserve its effect; or, in other words, whether it was subject to the general requirement relating to the' inscription and reinscriptiou of mortgages.

Art. 3369 of the Civil Code declares :

“ The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of its date; its effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.
But this rule does not obtain with regard to the mortgages to which husbands are subjected for the.dowry and other claims of wives, and tutors and curators towards minors, interdicted and absent persons, whose estates they administer.”

It is claimed by plaintiffs, that the last paragraph of this Article dispenses with the necessity of a reinscription of their mortgage; that they come within the exception therein declared.

To our minds, it seems clear that the dispensation provided in that paragraph was out of consideration for the incapacities of the persons mentioned therein — married women and minors — and was only operative whilst those incapacities continued. There was a good reason why those 'thus incapacitated should not be subjected to the rigorous' rule requiring the reinscription of their mortgages, when they were subject to the authority of those who had a direct interest to prevent a compliance with such requirement. The very words of the clause “ towards minors,” “ whose estate they administer,” place its meaning beyond doubt. It is equivalent to saying that such reinscription is not necessary, whilst the estate of the minor is under the administration of the tutor, or in ether words, during the existence of the tutorship.

In this case, the tutorship had ceased long before the time required for the reinscription of the mortgage.

We have been referred to the case of Morrison vs. Citizens’ Bank, 27 An. 401, as announcing a different doctrine.

We do not so construe that decision. The question there decided was, whether a judgment fixing the liability of a tutor to a minor, and recognizing his legal mortgage, obtained and recorded in 1808, was sufficient to preserve the minor’s mortgage, in view of the constitutional requirement and the laws under it, relating to the registry of such claims; and it was held that it was sufficient. This decision of the Supreme Court, so adjudicating, was rendered within less than ten years from the recordation of this judgment and, therefore, could not have related to the question of its reinscription.

■ The plaintiffs’ mortgage, under which the property in this case was sold, had not been reinscribed prior to the sale, and had, therefore, ceased to have effect under the express provisions of the Code cited. The existence of the mortgages of the third opponents against Thompson are not disputed, the only question being that they did not operate on the property. We think they did, and took precedence over the claim of the plaintiffs.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he affirmed with costs.


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    No. 1157.
    Celestine Vavasseur, Widow, etc. vs. Sidney Mouton, Administrator.
    1. The foundation of the right to bring a direct action against the administrator of a succession under administration, is the refusal of the administrator to acknowledge the debt and to place it on his tableau.
    2. Property adjudicated to a married heir at a succession sale and paid for out of her heritable share, becomes her separate property, and does not fall iuto the community between her and her husband. Affirming Troxler vs. Colley, 33 An. 425.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Fontelieu, J.

      DeBlane & Perry and P. DeBlane, for Plaintiff and Appellant.

      D. Voorhies and M. B. Girard, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, surviving widow of J. Sosthene Monton, brings this action against his administrator, averring that Ms succession is indebted to her in the sum of $12,821.92, of which a $500 were donated to her, and paid to her husband in 1848, and $500 in 1850, by her father, and the balance was received by her husband before the end of July, I860, from the successions of her parents.”

The petition contains no other specifications of the nature, origin, date, or particulars of this large claim.

Further alleging that the administrator has “ but partly recognized her claim, and refuses to class it as it should be classed in the account by him hied of his administration,” she prays for judgment recognizing her claim, with legal mortgage, and ordering the administrator to class and pay the same according to rank, etc.

The essential foundation for such an action is the administrator’s refusal to acknowledge and place upon his account the claim sued on.

The only amounts shown or claimed to have been received by plaintiff’s husband from her parents or their successions for her account, are : ■

1. The two donations of $500, in 1848 and 1850............ $1,000.00

2. The cash received by him from the successions of her father and mother.................................... 3,817.26

4. The amount of the purchase price of certain slaves bought at the succession sale of her parents, and paid for out of her heritable share, say.............................. 3,600.00

As to the first two items, the record shows that they áre not disputed by the administrator, but, on the contrary, are duly placed upon his account as debts secured by legal mortgage.

The last item is disputed by the administrator, who claims that the slaves referred to were adjudicated to her, and not to her husband, and that they thereby became her paraphernal property.

The only evidence of the purchase is a notarial act of partition, between the heirs of Jean Vavasseur and wife, from which it appears that the slaves were adjudicated to her, and paid for out of her heritable share.

This act of partition was offered in evidence by plaintiff, without reservation. It is the only evidence of the purchase of and payment for the slaves found in the record.

She claims that she is not bound by the recital contained therein, that the slaves were adjudicated to her, and that theproees verbal of the adjudication should have been produced, because the only appearanee made in the act, in her behalf, was by her husband, who alone signed the same for her.

That-she might have contradicted that recital, it is not necessary to dispute. But having offered the entire instrument without reserve, and not having contradicted it, we think it very clear she is hound by all its recitals, and cannot dissever them, so as to take advantage of those in her favor, and repudiate those which are against her.

It is now well settled, that property so purchased by an heir, and paid for out of her heritable share, becomes separate property, and does not fall into the community of acquets and gains as property acquired during marriage. Troxler vs. Colley, 33 An. 425, and authorities there cited.

It follows that this claim of her’s is not sustained, and the first mentioned claims being fully acknowledged, and properly ranked on the administrator’s tableau, there is nothing to support the present action.

As to the allowances claimed by her, on account of discount on Confederate money paid to her by the administrator, and on account of funds of the community existing between her and her husband, and charged to have been appropriated to the settlement of his ante-ivuptial debts, the mere reading of the petition shows that they arc utterly foreign to the allegations thereof, and cannot he considered in this action.

Many other legal objections are .urged against the plaintiff’s action of a serious character, hut it is disposed of by the foregoing considerations.

Judgment affirmed at appellant’s cost. ,


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    No. 1154.
    The State of Louisiana ex rel. Wm. E. Seymour, Liq., vs. The Judges of the Third Circuit Court.
    In a contest over a fund in the hands of the sheriff^ realized under execution, the Circuit Courts have no jurisdiction if the demand of plaintiff exceeded one thousand dollars, although the amount claimed on intervention orthird opposition be less than one thousand dollars.
    In such cases, the jurisdiction of the appellate tribunal must be tested by the amount claimed by plaintiff, and not by the claim of third opponent or intervenor. 31 An. 452 ; 30 An. 625; 8 La. 164. Reaffirmed.
    Application for a Mandamus.

      K. Baillio, for the Relator.

      JS. T. Lewis, Judge, ad hoc, and A. B. Irion, Judge of Third Circuit Court, Respondents, in pro. per.

   The opinion of the Court Was delivered by

Poché, J.

Relator seeks, by mandamus, to compel the defendants, Judges, to take jurisdiction of an appeal brought by him from a judgment of the District Court of St. Landry, in a cause predicated on the following pleadings and facts:

In the suit of Thomas C. Anderson vs. Mary Ann Petit, wife et al., based on a claim of $3,750, defendant’s property, sold under seizure, realized $2,347, out of which, Alcus, Scherck & Autey claimed, by third opposition, to be paid, by preference over the seizing creditor, the sum of $750 due to them by the defendant, their common debtor. Their third opposition having been sustained, Relator herein, who had in the meantime been subrogated to the rights of Anderson, the original plaintiff, took an appeal from the judgment of the District Court, returnable to the Circuit Court, where, after hearing, it was dismissed by the latter Court, on the ground that the amount in dispute exceeded $1,000, and was not within the jurisdiction of that tribunal.

The Circuit Court Judges held very correctly that, in such cases, the jurisdiction of the appellate court is to be tested under the amount claimed' by the original plaintiff, and not by the amount claimed by the third opponent or intervenor.

■ This is no longer an open question ; it was settled in the earlier decisions of this Court, Hart vs. Ludwick, 8 La. 164. It has been recently re-examined, and the doctrine was reaffirmed by our immediate predecessors. 30 An. 625, Picard & Weil vs. Wade; 31 An. 452, Alber vs. O’Brien.

In the case of Renshaw vs. Stafford, recently decided by us in New Orleans, we had occasion to re-examine the subject matter, and we therein reaffirmed the doctrine established in the cases above referred' to, and we may now consider the question as finally settled.

In this case, both the amount of the seizing creditor’s claim, and the funds realized under execution, exceed one thousand dollars, exclusive of interests, and the Circuit Court was clearly with out jurisdiction.

It is, therefore, ordered, that the writ of mandamus herein prayed for be refused, at Relator’s costs.


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    No. 1159.
    Zuberbier & Behan vs. Louisa Prudhomme, Wife, et als.

      1. ‘Where wholesale dealers sell to a married woman, separated in property and transacting business as a public merchant, goods appropriate to her trade, upon the orders of herself or of her husband acting as her agent under express written procuration, they are not bound to follow the goods, and see that they are actually used in the business of the wife.
    2. In a suit against a married woman, where both she and her husband are cited, and default is taken against both, although she alone afterwards appeared and answered, the authorization of her husband will be presumed.
    3. “Where a defendant dies pendente Ute, in absence of administration, suit is properly revived and continued by making the heirs parties, and if the heirs are minors and have no qualified tutor, they may he made parties through a curator ad hoe duly appointed to represent them.
    4. In such case, citation eo nomine to the curator is not essential. Service of the petition for, and order of, appointment specifying the object and purpose thereof is sufficient, especially when [the suit proceeds without objection, contradictorily with attorneys presumed to he authorized to represent him.
    APPEAL from the Thirteenth District Coart, Parish of St. Landry. Hudspeth, J.

      Lewis <& Tiro., for Plaintiffs and Appellees.

      H. L. Garland, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The record satisfies ns on the following points :

1. That the defendant, Louisa Prudhomme, was personally liable for the claim of plaintiffs, as her separate debt. She had been judicially separated in property, and was granted, in the judgment of separation, “ the separate control and administration of her paraphernal property and also of all the property she may hereafter acquire, free from the control of defendant,” her husband. After the separation, she conducted business as a public merchant, in her own name, with her own .means, and for her own account. The business was that of a 'grocery store. The goods purchased from plaintiffs were all goods appropriate to her line of business, and were bought either by herself personally, or by her husband, acting as her agent, under an ample notarial power of attorney. A merchant who thus deals with a married woman doing business as a public merchant, is not concerned with the disposition which she or her agent may make of the goods. To hold otherwise would place it in her power.to commit unlimited frauds.

2. That there was proper ground for the attachment issued. She had already disposed of some of her real estate under suspicious circumstances; and that she had the fraudulent design of making way with her stock of goods is apparent from the fact that she did actually and successfully make way with them before the attachment issued could be executed. Although this disposition took place only after the issuance of the attachment, this cannot prevent the inference that the fraudulent design existed prior thereto. ■

3. The return of the sheriff shows that an actual seizure was made under the writ, and there is no allegation in the pleadings, or sufficient evidence to impeach that return.

4. She and her husband, for the purpose of authorizing her, were both duly cited, and a default was taken against both. Afterwards, she alone appeared and filed answer. It is well settled that, in such state of case, the husband’s authorization is presumed. Gilmore vs. Gilmore, 9 An. 197; Hall vs. Carroll, 10 An. 412; Stone vs. Tew, 9 R. 194; Francois vs. Martin, 28 An. 403.

5. After answer filed, and, indeed, after the case had been partly tried, Louisa Prudhomme died. Plaintiffs, thereupon, suggesting the death, and representing that her minor children were her sole heirs and that they had no qualified tutor, provoked the appointment of the father of the minors as their curator ad hoc, who was duly notified, and contradictorily with whom the suit proceeded to the judgment. This proceeding was in precise accord with the provisions of the Code of Practice, Arts. 120, 116, 113, 361. It was not necessary “to recommence the action,” (C. P. 361) and citation eo nomine to the curator was not essential. It was sufficient to serve him with the petition and order appointing him, and directing that the suit be continued against the heirs through him as curator ad hoc. The counsel who had represented Mrs. Prudhomme prior to her death, continued to act in the proceedings had after the appointment of the curator, and, as they took this appeal in his behalf, it must fairly be presumed that they represented him in those proceedings.

Articles 3036, 1037 and 1038 of the Civil Code, relative to the benefit of inventory and delays for deliberating in succession proceedings, have, in our opinion, no application here.

» The theory of counsel for defendant, that this judgment is absolute against the minors and would affect their whole estate, is utterly unfounded. It is a judgment against them simply in their capacity of heirs of their mother, and necessarily as beneficiary heirs, and could not possibly affect anything but their beneficiary interest in her estate.

6. We agree with the District Judge, that the exception to the plaintiffs’ petition came too late, and was properly disallowed.

Judgment affirmed, at appellant’s cost.