author: Watkins, J. Fenner, J.

text:
    No. 10,406.
    J. C. Mire vs. East Louisiana Railroad Company et al.
    1. The proof disclosing that plaintiff, while acting in thctcapa,eity of firexnan on a railroad locomotive, was injured by a fall occasioned by the derailing of the engine, tender, etc., and that the accident was caused by the ear wheels coming in contact with a loose plank resting on one of the rails of the railroad track; held that the plaintiff, in order to recover of the master, must show that the accident was caused by the dWect and immediate act of its servants.
    2. In ease the proof shows that the accident would not, in all likelihood,‘have happened, but for the interposition of some independent responsible third party, between the servant’s negligence and the injury sustained, and it affects the resxxlt, and is the immediate caxxse of the injury, the plaintiff can not recover against the original wrong doer.
    PPEAL from the Civil District Court,’Parish of Orleans. Monroe, J.

      Alfred Roman and Branch K. Miller for Plaintiff and Appellee:
    1. It is the duty of a railway company, to its servants, to take dxxe care that its line, rolling stock, machinery and appliances are in a safe condition for operation. Patterson, Kailway Accident Law, See. 809; Wood on Master and Servant, Sec. 329 (page 684); See. 359 (page 733); Dearing on Negligence, Sec. 198; 59 Mo. 504; SAUen (Mass.) 441; 135 Mass.575; 129Mass.26B; 46 Wis.’HlO.' This is an affirmative duty of the master, and can not be delegated so as to relieve.the master of the conseqxicnc.es of its non-performance. Same authorities; 53 N. Y. 549; 110 Mass. 240.
    2. The master is responsible for all defects of which lie was aware,( or which by reasonable care and diligence he should have known. Same authorities.
    3. Where a line or station is in the joint occupancy or use of two companies, the servants of each company are not fellow servants of the servants of the other ^ company. The status of a servant of a company leasing the work of another toward the lessor company is that of a passenger. Patterson, Kailway. Accident Law, See. 228; S Allen (Mass.) 221; 19 N. Y. 127; 58 Md. 372; 10 A. and K.'lt. K. Cas. 792; 46 Wis. 497.
    4. An act done under the tremor and excitement produced by defendant's' misconduct, or when the latter’s negligence puts plaintiff to a sudden election' between acting as he did, or submitting to a grave inconvenience, can not be set xip as contributory negligence. 37 An. 708; Wharton on Negligence* Sec. 375:” 2 Thompson on Negligence, page 1174, Sec. 20.

      Harry H Hall and Farrar, Jonas & KraUschnitt for Defendants and Appellants:
    1. It is well settled that a railroad company does not owe to its servants the same degree of care which it owes to a passenger. Thompson on Carriers, page 46; 2 Thompson on Negligence, page 972.

      2. A railway company owes absolute duty to the public to keep its track in safe condition, and run its trains with regularity and dispatch ;*but an employe can not have a right of action against a company on this obligation. 49 Mich. 495; 8 Am. and En. Railroad Oases, 110.
    3. There is no implied warranty generally of the completeness and fitness of the road or rolling stock as between the company and its employes. 10 Ind. 554.
    4. Where an accident happens to a passenger upon the lino, by reason of the carriage breaking down or running off the rails, or by mismanagement in driving, so that a train is run against the permanent buffers at a terminus, there is prima facie evidence from which the jury may infer negligence; but this rule only applies where the accident is of such a nature that it appears that the wrong or negligence which produced it was the wrong or negligence of the carrier himself or of some person for whose act he is responsible, and does not apply where it may have been caused by the act of a stranger. Wood’s Bailway Law, vol. 2, page 1095, and cases cited therein.
    No presumption of negligence arises from the mere fact that an accident has occurred; but such a presumption arises whenever it appears that an accident has resulted from a defect in the road or any part of the appcwalus employed in operating it. 18 N. Y. 534.
    When the presumption of negligence has once been established against the carrier of passengers, in an action for damages resulting from an accident, it can only be rebutted "by proof that the accident resulted, from circumstances against which human prudence and foresight could not guard. 18 N. Y. 408.
    Whenever it appears that the accident was caused by any deficiency in the road itself, the ears, or any portion of the apparatus belonging to the company and used in connection with its business, a presumption of negligence on the part of those whose duty it was to see that everything was in order immediately arises; it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have foreseen or discovered it. * * * There may be a presumption of negligence in every case, but where nothing is known in regard to the cause of the accident, the negligence may as well have been that of some one residing in the vicinity of the road or of a stranger, of whom numbers come in contact with it every day, as of any of the employes of the company. Woods, page 1099; 12 N. Y. 236.
    A railroad is not responsible for the malicious acts of third persons causing injury not in its power to provont. 34 N. Y., page 1; 38 An. 161; Vide 34 An. 1156.
   The opinion of the ■court was delivered by

Watkins, J.

On the 24th of May, 1888, the plaintiff was employed and actually engaged in the performance of duty as fireman on a locomotive of one of the trains of the East Louisiana Railroad .Company, running on the road from Covington, in the parish of St. Tammany, to the city of New Orleans.

On that morning the company’s train, on which Mire was os employed, left Covington for New Orleans on schedule time, and en route had passed Pearl River station, running at the usual rate of speed, and had taken the track of the Northeastern Railroad Company and made a distance of one and one-half miles from said station, when, just as the locomotive was in the act of going over a dirt-road crossing, it struck 'a plank or board, which was loose, and lying partly on the track and very near the crossing, and was, thereby, thrown suddenly from the track. By this sudden shock, derailing the tender, locomotive, etc., of the company’s train, the plaintiff was violently thrown upon an adjacent pile of cross-ties, causing a fracture of his left knee and occasioning him great pain and serious injuries.

Plaintiff charges that said plank or board, which caused the accident, “was negligently or carelessly not spiked down, or left loose upon one of the rails of said track by the servants or employés of the New Orleans & Northeastern Railroad Company, for whose acts and omissions the East Louisiana Railroad Company is responsible.” That the latter was, at the time, using and operating the track of the former, from Pearl River station to New Orleans, under a lease, and whose duty it was to furnish a track upon which the lessee’s trains could be, at all times, safely run, and free from risk or hazard to its employés. It is specially averred that the breach of duty on the part of each one of said two corporations was the sole cause of the accident, and the resulting injuries of the plaintiff.

On this generalized statement of facts plaintiff brought suit against the two corporations in solido for $15,000 damages, and from a verdict and judgment for $2500 against each the defendants have appealed.

The questions for solution are, therefore, (1) whether one or both defendants are chargeable with fault, on account of a loose plank or board having been negligently left on one of the rails of the Northeastern Company’s track, by its servants, or employés; and (2) if left in such a position as to have been easily cast or thrown upon the track, by some independent third person, or some responsible, extraneous agency, is one or both of the defendants responsible for the accident and for the plaintiff’s consequent damages?

No fault is charged against or attributed to the officers or employés of the derailed train.

There is no question in the case of any violation, by that company, of a contract of safe carriage of a passenger. No charge is made that the accident happened on account of faultiness in the construction of the Northeastern track, or roadbed; or of faultiness of the material of which it was built; or of its having been in bad condition at the time the accident happened. The fault charged is, that the servants and workmen of the Northeastern Company, at the time of the accident, or just before, being engaged in ballasting its track, had, for that purpose, removed some of the planks from the dirt-road crossing, and negligently failed to spike them down again, and left them loose upon the track, or in such close proximity thereto, that they were thrown upon it by some third person, or by means of some extraneous force, unknown, and thus caused the accident to the train and the injury to the plaintiff.

Suit is brought by one of the servants, or employés of the East Louisiana Company, against that corporation as his employer, and against the Northeastern Company as the lessor of his employer, in solido, for the damage he sustained through the fault or negligence of the servants or employés of the lessor company, and for whose acts and omissions the lessee company is responsible to him.

On this statement of the issues involved, we deem it essential to plaintiff’s recovery that he should establish, by a clear preponderance of proof, first, that there occurred such an accident; second, that thereby he sustained the injuries complained of; and third, that the accident happened through the fault or negligence of the Northeastern Company, its servants or employés. To make the fault plausible or reasonable will not suffice. It must also show in what manner the Eastern Railroad Company is responsible to him for the fault or negligence of its lessor.

In the answer of the Northeastern Railroad Company is the distinct and specific averment; ‘ ‘ that no plank was left by it, or its agents, where it could have been dragged or fallen on the track; and if such plank was the cause of the engine * * * being thrown from the track * * * such plank could only have been placed there by design and with malice; and that it was not so placed by any person over whom this respondent could, or did, exercise control, or authority, or whom it could have prevented from thus acting.”

It thus appears that the issue of fault, or negligence of that com-, pany, vel non, is squarely made, and must be as squarely met. It involves a question of fact as to whether the accident happened through ,the fault or negligence of the company’s employés, and a question of law as to whether the company is responsible for injury inflicted by the independent act of some third person, which intervened between the defendant’s negligence and the plaintiff’s injury, and which was the direct and immediate cause of the accident and the injury.

An attentive and pains-taking examination of the record discloses the following state of facts:

The only eye witness of the accident was a lady of the name of Mrs. Mary Davis, who resides about three hundred yards from the railroad track, at the point where it happened. She saw the train from her front gallery at the moment the engine turned over. It was between the hours of 6 and 7 o’clock A. m. when the accident happened. She states that another train had passed down the road in the direction of New Orleans about half an hour before the accident happened, and that the wrecked train was going in the same direction. That during this interval of time she saw a timber wagon or carry-log pass over the dirt-road crossing, hauling logs toward Pearl river, and. being driven by a person of her acquaintance disconnected with either of the defendant companies.

Several witnesses were interrogated in reference to the locus in quo and the immediate cause of the accident, between whose statements there appears, at first inspection, to be an irreconcilable conflict, but which disappears entirely when the point of time at which the different witnesses made their respective examinations is taken into-consideration.

The superintendent of the Ba§t Louisiana road was a passenger on the derailed train, and made an examination immediately after the accident, and saw the plank that caused it, and states that one end rested on the track, and a part of it had been mashed or ‘ ‘ chewered ” up by the wheels of the engine passing over it. That the other end was twelve or fifteen feet distant from the dirt-road crossing, as at first seen. He describes it as being of some sixteen to eighteen feet in length, three inches in diameter, and nine inches in width, and of sound heart-pine timber, which had been in the road crossing for a year or more. He states that he, aided by two other persons, lifted it up and ranged it along side of and parallel with the railroad track, and several feet distant from the original position it occupied when he first saw it; says that the edges of this plank had been worn round by carry-logs and wagons- passing over it. States that from his observation and knowledge of the location of this plank, it was, in his opinion, impossible for it “to have been pushed into the position it was found by any wagon or other vehicle passing along the road over the crossing.”

The auditor and passenger agent of same company was also a passenger on that train, and likewise made an examination.

He it was who made the model exhibited to the court as illustrating the situation and surroundings of the wrecked train. He describes the little ^mounds of loose sand which had been dropped on either side of the track for the purpose of elevating the road bed to be of the average height of eighteen inches to two feet. In other respects this witness substantially confirms the statement of the superintendent. He says his examination was made within ten minutes after the happening of the accident.

These are the two principal witnesses of the defendant, but their evidence is corroborated in its most material part by one of plaintiff ’s witnesses — also an employé of same company — who states that immediately after the accident occurred he went up the road with a flag to stop an expected train, and when he had returned he examined the locus and found ‘ ‘ the plank lying alongside the track at the railroad crossing.”

This statement is chiefly antagonized by an employé of the Northeastern company, who states that at the time of the occurrence he was working at a gravel pit on Pearl river, about a mile and a quarter from the place where the accident occurred. Says that it was about a half an hour afterward that he was informed of it and went up there, and in his examination he says:

“I saw somebody had taken it” — the plank — “off the road crossing which was in bad condition, and had not thrown it out far enough, but had left one end on the public road; and right at one end of the plank I saw the print of a carry-log wheel. I know that is what wrecked the train. ’ ’

This witness makes about the same estimate of the size, length and quality of the plank as other witnesses have done. This witness is not supported in the statement quoted above by a solitary witness of the eleven .interrogated. That of the engineer of the derailed train does not support it. He says his examination was made some fifteen minutes after the accident, and subsequently to that made by Messrs. Poitevent and Ferguson. Says he saw some planks at a little distance away, and one of the crossing planks near by, which looked like the train had run over it. States that one end of that plank was about two or three feet from the wagon road, but is not quite certain whether “ it rested on the hill or in the bottom.”

In corroboration of the evidence of the defendant’s other witnesses, a wagon driver — in no way connected with defendants or either of them — is placed upon the stand, and who, in substance, states that on the day previous to the occurrence he passed over the dirt road driving his wagon, and found thereon several planks lying loose, and on returning that afternoon he found the planks lying in a two -foot ditch, in a pile near the railroad track. Another wagon driver testifies that on passing the road the day previous to the accident he found the planks thereon, and with the assistance of another man removed them, and put them in the ditch, at a distance of five or six feet from the public road.

After the wreck these two witnesses visited the train and they state that the plank which had been separated from the pile was in a position nearly parallel to the railroad, the end of it nearest the dirt road being six or eight feet distant from it. Another witnesss says alongside of the two planks remaining in the ditch there was an impression of the third one in the sand.

From this summary of the evidence it is our conclusion, that the plaintiff’s theory that one end of the loose planks had been left negligently or carelessly resting on the dirt-road crossing by some of defendant’s workmen, and that a passing carry-log running over it had tilted the other end of it upon the track and thus caused the accident is without substantial foundation. Indeed, it appears quite impossible that any vehicle passing one wheel over one extremity of a three-by-nine inch pine plank, of sixteen to eighteen feet in length, could have thus tilted the other extremity up an incline of several degrees upon the track. Even had such a feat been possible, how is it possible that the plank was not again tilted in a different direction by the blow it received from the engine’s wheel?

But conceding for the argument all that is contended for by plaintiff’s counsel, how can it be plausibly or reasonably argued that the Northeastern Railroad Company should have been sufficiently on the qui vive to have detected and removed this impediment from its track, within the brief half hour which elapsed between the passing of its train and that of the East Louisiana road; and that for its neglect in not so doing it has laid itself liable for plaintiff’s damages. We do not think that its responsibility can be so extended. For had any responsible member of that company occupied the exact position of Mrs. Mary Davis, he would have been justified, in our opinion, in believing the track was free of any obstruction', though in point of fact it was not.

Let us suppose that some other theory in reference to the manner in which the loose plank was cast upon the track be adopted- — -the workmen and employés of the Northeastern Company having been primarily at fault in not spiking this plank down — and yet liability can not be placed upon them. For the fact is, as shown by the record, that neither of the defendants, their servants or employés either placed the loose plank upon the track or left it loose upon the dirt-road crossing of the track. But it is shown by the record that the servants of the Northeastern Company, carelessly or negligently, left three loose planks near the crossing, and one of them was cast upon the track by some third person, or by means of some extraneous force or cause unknown. In order that an employer be held liable for an injury inflicted, the damages must be both the natural .and proximate consequence of the act complained of, and the direct and not remote result of the defendant’s wrong.

For, Mr. Weeks says, “whenever there intervenes the independent act of a third person, between defendant’s negligence and the injury sustained, and it affects the result, and is the immediate cause of the injury, the plaintiff can not recover against the original wrongdoer.” Damnum Absque Injuria, Secs. 115, et seq.

Mr. Wharton affirms this principle, and says: “Supposing that if it had not been for the intervention of a responsible third party, the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that casual connection between negligence and damage is broken by the interposition of independent responsible human action." Law of Negligence, Sec. 134.

It was maintained in Fairbanks vs. Ker, 70 Penn. St. 86, the court announcing “as a general rule one is answerable for the consequences of his faults only so far as they are natural and proximate, and may therefore be foreseen by ordinary forecast; not for those arising from a conjunction of his fault with circumstances of an extraordinary nature.”

And we take it that our Code is bottomed on this principle. It says that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” R. C. C. 2315.

It also declares that “ we are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable,” etc. R. C. C. 2317.

It says ‘ ‘ masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed.” R. C. C. 2320.

As if to put the question beyond cavil or doubt that article declares that:

“ In the above cases responsibility only attaches when the masters or employers, teachers and artisans, might have prevented the act which caused the damage and have not done it.”

These principles were recognized and applied in Williams vs. Pullman Palace Car Company et al., 40 An. 417, and the Louisville, New Orleans and Texas Railroad Company were coerced to respond in damages for the act of the porter of the Pullman Company in assaulting a passenger on its train.

But in neither the Roman law nor in our own has vicarious liability been recognized as actionable. On the contrary the resulting damages have always been held as remote and consequential, and not recoverable.

In this case it is clear 'that the accident occurred through the interposition of an independent responsible human agency, and not from the act of defendant’s servants or employés, and hence plaintiff can not recover.

It is therefore ordered that the judgment appealed from be re•versed, and plaintiff’s demands rejected at his costs in both courts.

Mr. Justice Poché dissents from the opinion and decree of the majority and will file his reasons later.

Concurring Opinion.

Fenner, J.

I concur in the decree herein exclusively on the ground that the plaintiff has entirely failed to establish any casual connection between the negligence of defendants and the injury complained of.

Conceding that the railroad company was guilty of negligence in leaving the loose planks, which it had taken up from its crossing, lying upon the wagon road in kuch position and in such proximity torts track that passing wagons in the ordinary use of the road might have dragged or thrown the planks upon the track, and conceding-that if, as claimed by plaintiff, a passing carry-log, in going over the end of one of said planks, had dragged or tilted it so that one end of it was thrown upon tfie track, causing the accident, the defendant would have been liable — yet the plaintiff has entirely failed to prove the latter fact, and it is distinctly disproved by the testimony of two witnesses, Dawes and Crawford, corroborated by a third, Davis.

Dawes testifies that, the day before the accident, he crossed the. road with his wagon and found the planks lying across the road,, where they had been left by the employes of the railroad company; that they were an obstruction, and that, as he was going to return in the dark, that night, he removed the planks from the road and laid them in or along a ditch, placing them at a distance of six or eight feet from the wagon road.

Crawford states that, on the same day, he crossed the road and found the planks lying upon it, and, shortly afterward, met Dawes going toward the crossing; and that, when he returned the same day, he found the planks had been moved from the road, thus fully confirming Dawes’ statement.

Davis testifies that, after the accident, he went with Dawes, who showed him where he had placed the three planks, and found two of them still lying there, and a mark on the sand showing where the third had lain before it was removed.

These witnesses are entirely uncontradicted. Not a single person testifies to having seen the planks upon the road after the time when Dawes and Crawford state that they had been removed therefrom.

Porter, the driver of the carry-log, which passed over the crossing about one-half an hour before the accident, and who had the best opportunity of knowing whether or not the planks were then upon the road, was not summoned, though he lived hard by, and no suggestion is made of any inability to secure his testimony.

The negligence of the company in leaving the planks lying loose upon the wagon road was entirely cured by the act of Dawes in removing them before the accident and placing them in a position where, according to all the evidence, they were free from any danger of being thrown on the track by the operation of any natural or ordinary causes. If the defendant had placed them there originally it would have been free from any charge of negligence.

How the plank got on the track is a mystery not solved by the evidence. The only theory advanced by plaintiff, viz: that a carry-log passing on the road crossed the plank and tilted it on to the track, is sustained by no evidence, and is contradicted and rendered impossible by the testimony above referred to.

Defendant was not required to account for the presence of the plank on its track, farther than to absolve itself from any connection therewith; but the record is not barren of evidence suggesting that it may have been placed there by the voluntary and malicious act of a third person or persons, for which, if it be true, the defendant certainly could not be held responsible.


source: Caselaw Access Project

author: McEneey, J. Watkins, J.

license: Public Domain

text:
    No. 10,550.
    G. T. Payne vs. Joe and Jack Habbard.
    A contract purporting to bo a sale a remare, which divides the price, which was for an antecedent debt, to be returned in two instalments, and declares the forfeiture of the right to redeem on a failure to pay the first instalment due, is pigniorative in character and an antichresis.
    The mortgage rights of the creditor are not destroyed by the pledge of the im« movable to him, if they have been preserved on the property.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Luce & Lemle for Plaintiff and Appellant.

      Steel & Dagg for Defendants and Appellees.
   The opinion of the court was delivered by

McEneey, J.

The plaintiff held a mortgage on the Hermitage plantation, the property of defendants, and proceeded to foreclose the same. While the property was under seizure, and about to be sold, an agreement was entered into between plaintiff and defendants, by which the latter gained two years’ time, in annual instalments, to pay the mortgage debt.

The contract was made in the form of a sale a remere. The defendants leased the property conveyed to plaintiff by them. The plaintiff also agreed to furnish the defendants supplies for the year. The defendants failing to pay for the supplies, and the rent, the plaintiff proceeded against them by writs of sequestration, provisional seizure and attachment.

The defendants deny plaintiff’s right to sue for the rent, as he is not the owner of the Hermitage plantation.

They contend that the contract entered into by them with plaintiff was not a sale of said plantation with the right of redemption, but a pigniorative contract, by which the plantation was conveyed to plaintiff as security for the mortgage debt. He also prayed that if the sale should be considered one a remere that it be declared null and void for lesion. The defendants also plead in reconvention as damages'the sum of $2100.

There was judgment for the plaintiff on his original, and for defendant on his reconventional demand, setting aside the sale for lesion. There was no evidence offered on the reconventional demand for damages, and it may be considered as having been abandoned.

We are without jurisdiction ratione materias of the principal demand, and will therefore confine ourselves to the interpretation of the contract, purporting to be a sale a remere entered into between the' parties.

The deed from defendants to plaintiff declares the price to be $1354.46. The vendors reserve the right to redeem the property on repaying the above sum, one-half on the 1st of January, 1889, and the balance 1st of January, 1890. In the default of payment on the 1st of January, 1889, the right of redemption is to be forfeited.

If the price had been payable at one time, or at different times without forfeiture, until the last payment, at which period, in default of payment, the right to redeem would cease to exist, the contract would have had all the essential features of a sale A remere.

The right of redemption is an agreement by which the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it. R. C. C. 2567.

The price can not be divided so as to forfeit the property and destroy the right of redemption on a failure to pay the first instalment when due. The time fixed for the exercise of the right of redemption must be rigidly adhered to. It can not be prolonged. R. O. O. 2569.

The contract under consideration declared the forfeiture of the redemption on the failure of defendants to meet the first payment, a part of the alleged price, January 1, 1889. If enforced the plaintiff would get the property for one-half the price agreed upon, and the provisions of Art. 2567, R. O. C., defining the right of redemption, would be violated and destroyed.

In this case the price agreed upon bears no proportion to the value of the plantation. The District Judge thought it so inadequate that he set the sale aside for lesion.

We think he was correct in his estimate of the value of the Hermitage plantation. We do not agree with him, however, in his construction of the contract.

Prom the insufficiency of the sum stated as the price, and it being the mortgage debt with interest and costs, the peculiar feature of dividing the payment for the return of the price, and declaring the forfeiture on the failure to pay the first instalment, we are of the opinion that the contract is pigniorative in character and the property was placed in the possession of the creditor for the purpose of securing the debt due by defendants to plaintiff. It comes under the definition of an antichresis. R. O. 3176.

The creditor took possession of the property as a pledge for a debt due him. He immediately leased it to the debtor and thus reaped the revenues of the thing given to him in pledge.

He could not become the owner on failure of defendants to make the first payment, and the clause to this effect in the contract is a nullity. He has the right, however, to have the pledged immovable, the Hermitage plantation, seized and sold to pay his debt. R. O. O. 3179.

The amount due for rent, if collected, must be imputed to the interest, if any is due the creditor; if not, then to the reduction of the principal. v

The plaintiff’s the Hermitage plantation for the debt for which it was given to him in pledge is not destroyed by it, and he can still enforce the same, if it has been preserved on the property. R. O. O. 3181.

It is therefore ordered, adjudged and decreed that that part of the judgment appealed, and over which we have jurisdiction, which decreed the nullity of the sale on account of lesion be avoided and reversed. And it is now ordered, adjudged and decreed that there be judgment, in favor of the defendants, decreeing the contract entered into between plaintiff and defendants, by which the Hermitage plantation was delivered into the possession of the plaintiff to secure an indebtedness of $1354.46, to be a contract of pledge of said property to secure said sum, reserving to plaintiff the right to proceed under Art. 3179, R. O. C., to enforce the payment of his debt, or to enforce his mortgage right on said pledged Hermitage plantation, if the same has been preserved thereon.

It is further ordered that the reconventional demand of defendants for damages be dismissed, the appellant to pay costs of appeal.

On Application for Rehearing.

Watkins, J.

Plaintiff and appellant complaines that our decree maintaines the contract between him and the defendants as an antichresis, securing a mortgage debt of the latter to him of $1354.50, only whereas it should have been stated that the same' bore 8 per cent, per annum interest from the date of the contract, February 21, 1888-

The applicant has misconstrued our decree. It explicitly stated that the contract of pledge did not in. any respect modify the previous act of mortgage. It was left in force, and plaintiff was permitted to select which of the two — the act of pledge or the mortgage —he would proceed to enforce. Both were held valid and binding as securities for the payment of one and the same debt.

He must look to, and rely only upon, those acts for the ascertain ment of the extent of his rights and. the amount of his debt and its interest.

Rehearing refused.


author: Bermudez, O. J.

text:
    No. 10,552.
    Mrs. S. A. Miller vs. C. H. Shumaker.
    Tlie omission to make express mention, in a nuncupative will by public apt, or in equivalent terms, tliat it was written by tlie notary, is fatal anil invalidates tlie instrument.

      Rents and revenues can not be recovered from a possessor in good faith except from judicial demand, when evicted.
    Such possessor can not be required to demolish works put up by him, and is entitled to recover from the owner, on the latter’s choice, either the value of the materials and the price of workmanship, or the reimbursement of a sum equal to the enhanced value of the soil.
    PPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Jjuce & Lemle for Plaintiff and Appellee:
    1. A nuncupative testament by public act must evidence by its recitals that it vms V'ritten by the notary, and written as dictated, all to be done in the presence of the witnesses. O. C. 1578; 6 N. S. 263; 12 La. 114; 15 La. 28; 16 La. 82; 1 R. 48; 9 An. 118; 11 An. 108; 20 An. 203; 21 An. 115; 25 An. 480; 26 An. 89; 28 An. 388; 37 An. 834; 40 An. 593.
    2. The nuncupative testament by public act must bear on its face evidence in its recitals, showing by whom it was read. Same authorities.
    8. The formalities to which testaments are subject must be observed, otherwise the testaments are null and void. O. C. 1595.
    4. One possessing under a title defective and void on its face is not a possessor in good faith, and owes rents for the whole period of his possession. No one can plead ignorance of the law on questions of ownership. 41 An. 194, and authorities there cited.
    •5. The presumptions, probabilities and circumstances are against the reconven - tional demand of defendant claimed to have been expended for improvements and separate debts of the deceased. .
    6. The testimony of defendant is not only inconsistent, contradictory and improbable, but it is uncorroborated. O. O. 2281; 87 An. 95,97, 380. Manning.
    7. To charge a community with the separate debts of the husband, lie must establish not only that he brought such separate funds into the community, but that the community was benefited and enriched thereby. 10 R. 18; 26 An. 605; 30 An. 193, 278 ; 33 An. 541.
    8. Property purchased with money stolon from a succession belongs to the succession. 31 A. 357.

      Steel & Dagg, Charles S. Duke and Phil. Hough for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, O. J.

This controversy involves the validity of an authentic will of a wife in favor of her husband; the liability of the latter for rents, since the death of the former, of property left by her, and of which he had possession; the right of the husband to recover from the succession certain money claims which he sets up, should the will be amended.

The plaintiff, who is a sister of the' deceased wife, charges the nullity of the will, which is in the nuncupative form by public act, on the main ground that it does not appear from its contents that it was written by the notary who received it.

It would be cumbersome to incorporate here the proees verbal of the making of the will as prepared by the notary.

It suffices to say, that there was made by that official no statement-that he has written the will, and that the omission to make express mention of that important fact is fatal to the validity of the instrument, as no proof can be adduced aliunde to supplement the omission.

The notary declares that he was .called on by the testatrix ‘ ‘ to write, at her dictation, her last will and testament;” that she did “ dictate to me (him) the following, as her last will and testament,” which it is needless to transcribe, and he concludes by stating that the testatrix having heard the will read, declared, etc.

Surely, from that statement, it appears that the notary was called on to write the will; that the testatrix dictated it, and that it was read to her, but it does not appear that the notary wrote it down after the dictation. There is nothing in the language used from which it can be deduced that he did so. He ought to have so declared expressly, or used analogous terms. His failure to have done so causes the invalidity of the instrument. It makes no difference that in truth he did write it, for it is a circumstance which can not be legally established otherwise than by the declaration of the notary in the act itself.

Art. 1578, R. O. 0., and the jurisprudence expounding it, unmercifully demand that express mention be made of the dictation, writing down and reading, and, for a failure to observe the formalities prescribed, the subsequent article, 1595, emphatically declares that the testament shall be null and void.

It is needless to refer specially to other authorities to show that unless the notary declares that he has written down the will, or employs words of equivalent import, the will is a nullity.

There can be no doubt that, under the proof and the admission, the plaintiff is the nearest of kin of the deceased and therefore her sole heir at law. She is consequently entitled to be so recognized andi has a standing in court to make further demands.

She claims that the defendant, her sister’s surviving husband, owes, her the rents of the property left by his deceased wife, from the-time of her death up to settlement, at the rate of $25 per month.

To this the defendant answers, that being a possessor in good faith,, he is not accountable for such rents, which he besides denies having-received.

The defendant was in possession of the property, not merely by virtue of the will by which it was bequeathed to him, but of a judicial decree, which ordered “that its provisions be executed.”

Neither the will, nor the decree made to carry it out, were absolutenullities, for their validity could have been acquiesced in, expressly or impliedly, as being in favor of .private individuals.

By the lapse of time, five years, R. C. C. 3542, an action to annul it would have been barred.

The defendant was in good faith when he deposited the will in court; the officer who made the decree for its execution thought it, was a valid will; the attorneys who presented it to the court were under the same impression; the plaintiff herself, and her counsel, for a time, did not suspect its invalidity, for a claim for money was made by them, from the defendant, treating him, as it were, as the. testamentary heir of the deceased.

The defendant has set up the fact of this claim as an estoppel, shutting out plaintiff from the present suit; but it has none of the essential elements which can affix upon it the character of a formal and knowing acknowledgment of the will as a valid instrument, and can not therefore be considered as a ratification of an act as valid, which was known not to be so.

It can serve however to show that the defendant could be in good faith when he treated the will as valid, as his wife’s sister, the only-person who could have raised adverse rights, herself had taken it to-be so.

Viewed as a possessor in good faith, the defendant can not beheld responsible for all the rents claimed.

The District Judge, after hearing the evidence adduced, thought, that the rent could be put down at $17.50 per month, and rightly allowed it from the date of judicial demand.

The plaintiff further claims the value of property of the wife alleged to have been disposed of by the husband since the death. The record does not show that the defendant has done any such act. The District Judge thus found and so do we.

In his reconventional demand the defendant had set up claims aggregating $2075, which were allowed below, to the extent of $578.50 only.

In his brief on appeal, the defendant has stated the different items on which he now insists, and which sum up $2122.

The items for $450 for improvements put upon the property of the wife before, and for $250 for similar improvements after her death, have been formally admitted as correct.

The plaintiff, however, contends that, having made an election under Art. 508, R. O. 0., this demand can be settled by the defendant taking and removing the building; but that very article, in its last paragraph, expressly provides that, if the edifices or works have been made by a third person, evicted and not sentenced to make restitution of fruits, because such person possessed bona fide, the owner shall not have the right to demand the demolition of the work, but shall have his choice, either to reimburse the value of the material and the price of workmanship, or to pay a sum equal to the enhanced value of the soil.

The remaining items, one for $150, paid by the husband out of his -separate funds, to extinguish a mortgage on the wife’s property, another for $100, to pay fees to an attorney, another for a like amount, paid for her account, and another for $30, paid in the same way, and finally one for funeral expenses for $42, are not so well established as to be allowed in full.

The District Judge who heard the numerous witnesses who testified in the case, and the defendant himself, came to the conclusion that he was entitled to recover $578.50 only.

The appeal was taken by the defendant, and the plaintiff, answering, joined in the same, praying for an affirmance of the judgment as far as it benefits her, and its reversal otherwise.

We think that the District Judge has done substantial justice.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,585.
    The State of Louisiana vs. Orter Perique et al.
    An application for a continuance in a criminal case, on account of tlio absence of a witness, unsupported by affidavit, cannot bo considered.
    APPEAL from the Twenty-second District Oonrt, Parish of St. James. Duffel, J.

      Walter H. Rogers, Attorney General, and R. M. McOulloh, District Attorney, for the State, Appellee.

      Robt. G. Dugué for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

The trial of Orter Perique, Jr., and of Yalsin Braud, on the charge of shooting with intent to murder, resulted in the acquittal of Perique and in the conviction of Braud, who prosecutes this appeal from a sentence of eighteen months to the penitentiary.

I.

His first complaint is of the refusal of a continuance of the case on account of the absence of an alleged material witness.

The record shows that the absent witness had been summoned by service made at his domicil; that the motion for continuance was not made in writing, and that it was not supported by an affidavit. It appears further from the bill that, when called by the District Attorney to make the proper affidavit, the accused declined to do so, and his counsel argues here that an affidavit can not be required in such cases, as “it may be against the interest of an accused person to disclose at the beginning of the trial, or before the trial, the facts which he intends to prove by an absent witness.”

In the face of an inflexible rule of criminal jurisprudence requiring such an affidavit as an indispensable condition of a continuance, the argument of counsel has at least the merit of vigorous freshness and of ingenious originality.

But, at this stage of jurisprudence, we can not dare to drift from the safe moorings at which, all the courts which are guided by the rules of common law procedure, have been anchored for several centuries.

With a different rule, it would be a heroic feat for a prosecuting officer to force an accused, the essence of whose defence would be time, to atrial, under any circumstances.

Speaking of the required conditions of a motion for a continuance in such cases, Bishop, in his work on Criminal Procedure, says at Sec. 951:

“ If a witness is absent or sick and not to be procured till a future day or term, he must make affidavit setting forth the name and residence of the witness, the facts which he is expected to prove, their materiality to his case, as, for example, that he can not prove them otherwise, and their relevancy to the issue, why his presence can not now be had, and the reasons to believe it may be had then, together with what will render apparent his own want of laches.”

Every one of the enumerated requisites of the rule has been the subject of some judicial interpretation even in our jurisprudence, in which it has been uniformly enforced as laid down by Bishop.

In the following list of cases, the application for a continuance was-not entertained for the absence of the affidavit: State vs. Romero, 5 An. 25; State vs. Rountree, 32 An. 1144; State vs. Crawford, 41 An. 589.

And in the cases hereinafter enumerated, the motion was overruled on account of the insufficiency of the affidavit: State vs. Clark, 37 An. 128; State vs. Redmond, 37 An. 774; State vs. Landrum, 37 An. 799; State vs. Duffy, 39 An. 419; State vs. Bassinger, 39 An. 918.

Hence we conclude that this ground has no force.

II.

The next complaint is too trivial to require more than a passing-notice.

As the case was tried by the judge, the accused invites our attention to errors committed by the former in summing.up the evidence in the case. The request is couched in the following words:

“ Such being the case we respectfully ask the court to consider whether it was just, arbitrarily to disregard the testimony of nine disinterested witnesses, whose testimony has not been contradicted in a single material particular, who were on the spot at the time of the shooting, and saw it all, and who swore to a clear case of self-defence, and to believe, in preference, the adverse testimony of the four State witnesses, who were directly contradicted by the other-nine.”

But the constitutional restriction of our criminal jurisdiction sternly forbids our invasion of that field of investigation. We can but refer counsel to Art. 81 of the Constitution, which restricts our jurisdiction “ in criminal cases to questions of law.”

The record discloses no error to the prejudice of the appellant.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,646.
    The State of Louisiana vs. Albert Butler.
    Wlien an affidavit for continuance sets forth all the essential requisites as to the names and residence of the witnesses, the character and materiality of their testimony, the exercise of proper diligence, and the ability to procure attendance of the witnesses if the trial be deferred, the refusal by the judge, who signs the bill of exceptions without qualification and without reasons, is error.
    APPEAL from the Twenty-Sixth District Oourt, Parish of Jefferson. Rost, J.

      Walter H. Rogers, Attorney General for the State, Appellee.

      H. N. Gautier for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant was indicted for murder, and appeals from a verdict and sentence for manslaughter.

The error assigned is the refusal of a continuance.

The continuance was applied for upon an affidavit setting forth the absence of three witnesses, averring the materiality of their testimony, setting forth the relevant and material facts he expected to prove by them and that said facts could be proved by no other witnesses; that he had given their names to the clerk and sheriff in ample time to have them summoned; that they resided in the immediate vicinity of the court house, but were temporarily absent in the neighboring parish' of St. James, which absence was not known to him until he came to summon them; that, nevertheless, he had caused summons to issue to the parish of St. James, upon which no return had been made; that their attendance can be secured if a continuance be granted; and that the motion is not made for delay.

An additional ground for continuance was assigned in the affidavit of his counsel that he had been employed, only the instant before, by friends of the accused, and had had no time to prepare the defence, and that he believed, if proper time were allowed, a sufficient defence could be made.

The judge refused a continuance and signed the bill of exceptions without contradicting any statement above recited, or assigning any reasons for his action.

This was patent error. The bill of exceptions, thus signed without qualification, authorizes us to take as true the facts stated in the affidavits, and those facts undoubtedly sustain the application for continuance.

A motion was subsequently made for a new trial on the ground of error in refusing the continuance. In his reasons for refusing a new trial, the judge says: “The court considering that the accused was arraigned at the beginning of the term, and asked for witnesses residing fifty miles from the court house, four days before the trial, and considering further that the witnesses who testified in the case for the accused, gave him an opportunity to make a full defence, and that this motion is made for delay, orders that the motion for a new trial be refused.”

It is questionable whether we should import these reasons into the bill taken to the refusal of the continuance; but, even if we should do so, they are manifestly insufficient. The case is fully covered by our decision in State vs. Egan,*37 An. 368. It is therefore adjudged and decreed that the verdict and sentence be annulled and reversed, and the case be remanded for further proceedings according to law.


text:
    No. 10,564.
    C. C. Sanders, Road Overseer, vs. Joe Levi, Road Hand.
    1. The legislation of the State invests the police juries of parishes with plenary-jurisdiction over public roads, and expressly authorizes them to exact road duty from “ all male ” inhabitants not expressly exempted.
    2. The incorporation into a town of a certain district of the parish under the general town incorporation law does not exempt the inhabitants of such town from road duty, in absence of any provision in any law granting such exemption.
    APPEAL from the Seventh Justice of the Peace, Parish of Natchitoches. Nash, J. P.

      D. O. Scarborough, District Attorney, for Plaintiff and Appellee.

      Cunningham & Tucker and JR. Lyons for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The only question involved in this ease is whether the inhabitants of an incorporated town are liable to public road duty under ordinances of the police jury of the parish in which the town is situated.

We have held that, under the legislation of the State “police juries are clothed with plenary and exclusive power to regulate by ordinances the manner of making and repairing public roads in their respective parishes.” Barrow vs. Hepler, 34 An. 362; St. Landry vs. Stout, 32 An. 1278.

Act 112 of 1880 authorizes police juries to “appoint overseers of highways or roads, who are to summon all male persons from the age of 15 to 50 (except ministers of the gospel and such other persons as are or Shall be exempt) * * to work on the public roads,” and authorizes infliction of penalties for failure’or refusal to work.

Defendant does not deny that he was liable to said)duty up to the year 1888, when, under the general Town Incorporation Act No. 49 of 1882, the inhabitants of a certain portion of the parish organized themselves into an incorporated town called Provencal. He claims that this fact operates an exception of himself and his fellow townsmen from road duty. Why? Nothing in the act authorizing the organization of towns expresses, or even hints at, such an exemption. No one will dispute that the granting or refusing of such exemption was clearly within the legislative power and a matter of legislative option. The Act 112 of 1880 expressed the legislative will authorizing the police jury to require such service from “ all male” inhabitants of the parish, and defendant is such an inhabitant. This act has never been repealed, and the Town Incorporation Act contains nothing inconsistent with it. It is well settled that the property and inhabitants of an incorporated town remain subject to property and license taxation by the police jury of the parish, unless specially exempted by the Legislature. Iberia vs. Chiapella, 30 An. 1143.

The same principle must apply to road duty, which, though not a, tax, is a forced contribution subject to legislative delegation.

The public roads of a parish are matters of concern to all the inhabitants of a parish wherever they reside.

Whatever may be said of the policy or justice of such exactions ■from inhabitants of incorporated towns, we can look only to the law -of the case.

We have carefully examined the various authorities cited by counsel for defendant, but do not find them applicable to this case. The right here recognized conflicts in no manner with the town’s exclusive control of its own streets and highways, nor with any other of its proper municipal privileges.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,609.
    The State ex rel. Landry M. Ducoté vs. A. V. Coco, Judge of Twelfth District Court, Parish of Avoyelles.
    'Tlie writ of certiorari is expressly intended for the purpose of bringing up a record in some pending suit, in some subordinate court, so that a superior, or the supreme court may, upon inspection thereof, determine whether there are or not any illegalities in the proceedings, and whereby they may be rendered absolutely null and void.
    y^PPLICATION for Writ of Certiorari.

      Lemsine & Couvillon and W. Hall for the Relator.
   The opinion of the court was delivered by

Watkins, J.

The relator’s complaint is that in a certain civil suit instituted against him, in a justice court of the parish of Avoyelles, by Amanthe Ducoté, judgment went in favor of the plaintiff, from which he appealed to the respondent’s court, and therein said judgment was affirmed. That he prayed for a new trial without avail, and tendered an exception to the jurisdiction of the court ratione materias, which was overruled. That subsequently, at the suggestion of ■plaintiff’s and appellant’s counsel, the respondent judge amended the •decree rendered by him, notwithstanding she had filed no answer to ■the appeal, and had asked no modification of the judgment appealed :from.

The grounds on which he asks relief at our hands, by way of ■certiorari, are formulated thus:

1. That the respondent, as judge of a court of appeal, was incompetent for want of jurisdiction ratione materise to try that cause, because the justice of the peace, as judge of the court of first instance, .had none, as the action was one to test the right of possession of real property.

2. That he did materially amend the judgment appealed from, notwithstanding the plaintiff neither appealed nor asked any amendment ■of the decree.

3. That he amended and materially enlarged the judgment first rendered by him, and several days after it had been signed and filed, .and a new trial had been refused. .

His prayer is that the record be sent up in order that we may pass upon the alleged illegalities in the proceedings and adjudge same to be absolutely null; and that he be required to proceed according to law.

The respondent returns, and the facts are that suit was brought in a justice court for the possession of a small strip of ground which the plaintiff had leased to the relator, and to compel him to remove therefrom the improvements he had placed thereon during his tenure; that the order granted by the justice was that the defendant show ■cause why he should not clear the obstructions from and vacate the premises; that the defendant appeared and filed an answer, in which he averred that he held and possessed the property under a lease, and prayed to be maintained in possession thereunder; that on these issues judgment was rendered in plaintiff’s favor, requiring the defendant to remove the obstructions complained of, but it failed to award possession to either party; that the defendant alone appealed, and the case was tried de novo on the same issues, by the respondent, and he affirmed the judgment appealed from; that subsequently his tention was called to the fact that the affirmed judgment did not decree possession to the plaintiff of the property leased, and to which she was in law entitled, and he amended the judgment in that respect; that the defendant and appellant made an application for a new trial, and it being overruled, he tendered an exception to the jurisdiction of the respondent’s court ratione materias, on the ground first above assigned. This exception was overruled on the ground that the proceeding under consideration was brought under the landlord and tenant’s act, for the ejectment of a contumacious tenant, and that the magistrate, as a judge of a court of first instance, had apparent jurisdiction; and that as a cause on appeal from a magistrate’s court to a district court is triable therein de novo, the latter had jurisdiction, also.

Without discussing the question of jurisdiction, it will suffice to say, that we can discover no illegalities in the proceedings, remediable by certiorari. As an appellate court, that of respondent had and exercised just the same power as that of the justice of the peace. 41 An. 542. It matters not that the respondent was exercising appellate jurisdiction; it was the same jurisdiction that had been exercised by the court of first instance, only in a different way.

The writ of certiorari is expressly intended for the purpose of ascertaining if any illegalities exist in proceedings, whereby they may be rendered absolutely null and void. State ex rel. Geale vs. Recorder, 30 An. 450; State ex rel. DeBuys vs. Judge, 32 An. 1256.

On the trial of such cause on appeal, it was competent for the respondent to hear all the evidence anew, and to determine the issues anew, by rendering judgment affirming, reversing or amending the decree rendered by the justice of the peace. The respondent affirmed the judgment appealed from; but, upon suggestion subsequently made, that said decree did not award possession of the property to either party, he amended his decree, instanter, and decreed the plaintiff entitled to possession. It is of this amendment that relator makes serious complaint, but it is not well founded. The ordinary rules applicable to appeals returnable to this court are inapplicable to appeals from a magistrate’s court to the District Court; because the latter are triable “in the appellate courts de novo,” and it is “sufficient for the party desiring to take an appeal to declare verbally such intention.” O. P. 1129.

“The parties are at liberty to produce the same witnesses who were examined below, and the court may hear any new testimony.” O. P. 1136.

The law does not seem to contemplate the filing of an answer by an appellee in such case. For it is provided by C. P. 1134, that the justice of the peace “shall issue citation to the appellee, directing him to appear before the appellate court,” simply. Hence, his failure to answer the appeal, or to request an amendment of the judgment, is of no importance; and the respondent was authorized to amend the judgment, inlike manner as he could have been, to amend a decree rendered by him, in a suit tried by him originally.

There is no illegality in the proceedings.

It is therefore ordered and decreed that' the restraining order herein granted be set aside and that the relief prayed for be refused at relator’s cost.


text:
    No. 10,516.
    Succession of Blanche Dumestre.
    1. Notwithstanding- the actual dissolution of a community of acquets and gains by the demise of one of the spouses, it has a. fictitious existence, subsequently, for the purposes of liquidation and payment of community debts.
    2. When the community is dissolved the respective interests of the survivor and of the heirs of the deceased attach eo instanti; and if there be [no community debts their rights of possession and dominion commence, and they, thereafter, hold the property in joint ownership.
    S. When the surviving member of a community subsequently dies, leaving individual debts unpaid, necessitating an administration, it becomes the duty of the administrator of her succession to institute suit for partition of the property held in division by it, and third persons; and the heirs of the pro-deceased partner, dying- without debts, are third persons in that sense.
    APPEAL from the Oivil District Court, Parish of Orleans. Voorhies, J.

      J. Meunier and Ghas, Louque for the Appellee.

      Moise & Oahn contra.
   The opinion of the court was delivered by

Watkins, J.

Alexis Dumestre died in 1884, intestate and without debts, leaving as his survivors Blanche Dumestre, widow in community, and ten children of the marriage, eight of whom were minors.

The widow was confirmed natural tutrix, and an inventory was taken, which showed a total appraisement of over $37,000. Taxes, burial expenses, court costs and other expenses having been disbursed, the widow and tutrix filed an account, showing the separate and respective interests of the spouses and of the children, each one of the latter being entitled to $1525.53.

As surviving widow, she took the necessary proceedings to have the shares of the eight minors in the community property adjudicated to her, and she executed in their favor a special mortgage in lieu of their general mortgage; the interests of the two major hems remaining undisturbed.

In 1887 the widow died, leaving an estate of some $2500, much embarrassed with debts contracted subsequent to her husband’s death. An administrator was appointed, and he brought suit against the two major heirs for a partition by licitation of the property, in which they had inherited from their father two-twentieths interest, the same not being susceptible of division in kind.

A judgment ordering partition was rendered, a sale and adjudication was made, the purchaser declined to accept title, and, being ruled to accept same and comply with the terms of adjudication, he has appealed from that decree.

In this court appellant’s counsel states that “the proposition for the court to decide is, can an administrator of the widow in community sue the two major heirs for a partition of property which formed part of the community?” This proposition is not correct in point of fact, for we take it to be quite plain from the evidence that the property is not community property, but property held in indivisión and joint ownership by the succession of Mrs. Blanche Dumestre and the two major, heirs of Alexis Dumestre. The community was dissolved by the death of the latter in 1884, and the effects which composed the partnership or community of gains, were divided into two equal portions between the wife surviving and the heirs of the deceased. R. C. C. 2406.

In Tugwell vs. Tugwell, 32 An. 848, we said that when the community of acquets and gains is dissolved by the death of the wife, the respective interests of the surviving husband and of the deceased wife attached at the moment of its dissolution to the property of the community, subject to the payment of community debts.

To the same effect is our opinion in Glasscock vs. Clark, 33 An. 584. Also in Bartoli vs. Hugueneaud, 39 An. 411; and in heirs of Murphy vs. Jurey & Gillis, 39 An. 785. Dickson vs. Dickson, 37 An. 915 involves the same principle.

The theory of the law is, that a community of acquets and gains has, after the decease of one of its members, only a fictitious existence, for the purposes of liquidation and settlement of community debts. But, as there were no community debts at the date of the dissolution of the matrimonial partnership by the death of Alexis Dumestre, the respective interests of widow Blanche Dumestre and the heirs of Alexis attached to the community property at once and irrevocably, and, thereafter, it continued to be property held in joint ownership by the widow and heirs — the former having acquired all the interests of the minors. The debts presently due are not those of the Dumestre community, but those of the succession of widow Blanche Dumestre, contracted by her since the death of her husband, and for which the heirs of Alexis Dumestre are not responsible.

Having undertaken the administration of an estate burdened with debt, it was the first duty of the administrator to separate the interests of the joint owners, so that he might reduce to possession the portion belonging to the succession under his control. This he is enjoined by the Code to do, for its injunction is, viz:

“ If the deceased was in community or partnership with anyone who has survived him, the curator of the vacant succession or of absent heirs is bound, immediately after Ms appointment, to sue for a partition, in order that the part which belonged to the deceased in the community or partnership property be ascertained.” O. C. 1185.

This article has no application to the matrimonial community as instituted under the Code; but it rather refers to such property as may be held in joint ownership or indivisión by the deceased and some stranger or third person, and by adverse titles. For it is plain that if Alexis Dumestre were living, the administrator would not be authorized, under that provision of law, to sue Mm for a partition of the common property, because the whole necessarily becomes subjected to administration, by reason of the fictitious existence of the community for the purpose of settlement of community debts. But, Alexis having died without debts and Ms heirs having become seized eo instanti of his estate, they occupy the position of strangers to an administration of the estate of Blanche, for the purpose of the settlement of debts they do not owe, and for which they are in no way bound.

We think the administrator had the authority, and that upon him the law had imposed the duty, to sue for the partition of the property which was held in joint ownership by and between the succession he represente I and the heirs of Alexis Dnmestre, and that the title tendered appellant is good and valid.

Judgment affirmed.


author: McÉnery, J.

text:
    No. 10,584.
    The State ex rel. Charles H. Voorhies et al. vs. W. W. Edwards, Judge of the Twenty-Fifth District Court.
    "Where several pleas are tendered at the same time to an indictment, and they involve separate and distinct issues, they must be tried separately.
    The plea oí aufrefois acquit is a plea in bar, and the defendant may show by matter extrinsic of the record that the indictment is not maintainable. The plea is of a mixed nature, embracing both law and fact, and ordinarily, therefore, requiring a jury, and must be disposed of before the plea of not guilty.
    ^PPLICATION for Prohibition and Certiorari-.

      C. DeBaillon, C. H. Mouton, M. Voorhies,. F. Voorhies and E. G. Voorhies for the Relators.
   The opinion of the court was delivered by

McÉnery, J.

The relators complain of the rulings of the respondent judge on the trial of an [offence charged against them by information for threats, violence and intimidation at the municipal election in the town of Lafayette, on May 6, 1889.

There are several alleged irregularities in the rulings of the respondent judge, but we deem it necessary to notice only one — the refusal of the judge to hear the plea of - autrefois acquit at the proper stage of the proceedings.

There were three indictments presented against the accused by the grand jury at the October session (1889) of the District Court for Lafayette parish.

At the same term of court the District Attorney filed an information charging one of the relators with having made an assault with a dangerous weapon on one Mouton. This grew out of the same transaction, the alleged intimidation, threats and violence at said municipal election.

One of the indictments, State vs. Olivier, for intimidation, threats and violence, was tried, and the defendant acquitted.

The two other indictments were quashed on demurrer, on the ground that there was no law making the acts alleged in the indictment an offence against the State.

After the judgment in these cases the District Attorney, on the last day of the term, filed two other informations against the relators, charging them with the same offence which had been preferred in the quashed indictments.

Relators filed in the three pending informations motions to quash the same, on several grounds, among others, that the accused had already been put in jeopardy for the same offence charged in the information, and that they had been finally discharged upon demurrer.

On the same day, after these motions were filed, the District Attorney filed a fourth information against relators, in the matter of State vs. O. N. Voorhies et als.

On the next day relators filed a motion to quash this information, embodying the same grounds in the other motions.

Disregarding the motion of the relators, the court fixed the case on Thursday of the same week for trial.

The court refused to hear evidence on the motion, in which was contained, among other matters, the plea of autrefois acquit.

The motion contained several pleas, and, although tendered together, involved separate and distinct issues.

In his opinion for overruling the motion the District Judge says:

“ While defendants were not allowed to offer evidence on this motion, yet conceding all the facts set forth to be admitted, does it constitute grounds for quashing? As former indictment does not put defendant in jeopardy, the principle of one in jeopardy does not apply, and on general principles I conclude that such former indictment and the quashing thereof does not constitute a bar to the prosecution.”

This was gratuitous and irrelevant. The plea of autrefois acquit is a plea in bar, and the defendant may show by matter extrinsic of the record that the indictment is not maintainable. Bishop Or. Procedure, 742.

The plea is of a mixed nature, embracing both law and facts, and ordinarily, therefore, requiring a trial by jury. Id., No. 816. -

The evidence to sustain it is the record, and it is conclusive of what it recites. The identity of the parties and the offence is established by parol testimony. Id., No. 816.

The judgment of the court on overruling the motion is as follows:

“ The motion to quash is for the above reasons overruled, reserving to defendants the right to try the special plea of autrefois acquit and the matter in abatement under the second ground.”

The minutes of the court show, however, that no opportunity was, afforded relators to try this plea at the proper stage of the proceedings. At the very moment the order in this case was served on the respondent judge, the trial was progressing on the plea of not guilty.

The relators, after the filing of their special plea, were arraigned and plead not guilty.

In his work on Criminal Procedure Mr. Bishop says:

“ Where the special plea and not guilty are pleaded together, the better practice is not to try them together, but to submit the former' to the jury first. Still some American courts appear to allow it when accompanied by the instruction to the jury to pass on the former first, and disregard the latter if they find on the former for the defendant. But even then a verdict of guilty with no response to the special plea will be erroneous.” 812.

The plea ought to have been submitted to the jury before the plea of not guilty was tried. Wharton Or. Law, 568.

Although the plea was tendered with other pleas, it involved a distinct issue, and should have been tried separately. Bishop Grim. Pro., 752.

It is therefore ordered and decreed that the ruling of the District Judge wherein he declined to allow the relators to adduce evidence in support of their motion to quash in so far as it sets up the plea of autrefois acquit and the subsequent rulings in said case be annulled,, and it is now ordered that he be directed to hear said motion anew, and to try said plea and admit said evidence, and farther, to proceed therein according to law, and that the restraining order herein be made peremptory until he shall have retried and determined said motion to quash.


author: McEnery, J.

text:
    No. 10,579.
    The State of Louisiana vs. S. S. Cornig et al.
    When the forfeiture of an appearance bond has been set aside the accused stands-before the court as though no such proceeding had taken place, and it was his duty, in complying with the conditions of the bond, to appear from day to day, until the charge against him was legally disposed of.

      The ccrart had the undcrabtea right to fix a day for the trial, and in default of the appearance of the accused to enter a judgment forfeiting the bond.
    When the surety on the bond moved to set aside a forfeiture of the bond, and the District Attorney afterward files 'a like motion, and the judgment of forfeiture is set aside, the surety has no cause to complain, as all that he asked was granted by the order setting aside the forfeiture.
    The recorders in the city of New Orleans are fully authorized, as committing magistrates, to take and acknowledge bonds where the punishment is hard labor.
    The forfeiture of a bond in a criminal ease, for the appearance of the accused, is a criminal proceeding, and is to be tested alone on a question of jurisdiction by the character of the crime charged against the accused.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Harry L. Edwards for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The defendant was accused of the crime of embezzlement, and gave bond, with one Nicholas Arthur as surety, to appear before the Criminal District Court of the parish of Orleans, to answer said charge.

The bond is in the usual form, and was properly taken and acknowledged before the judge of the First Recorder’s Court for the City of New Orleans.

In the Criminal District Court an information was filed against the defendant for said charge. He appeared and plead-not guilty. He faded to appear for trial, and a judgment was recorded against him and his surety forfeiting the bond.

The surety filed a motion to set aside the judgment of forfeiture on several grounds. The District Attorney, after the filing of the defendant’s motion, also asked that the judgment of forfeiture be set aside. On this motion the judge set aside the judgment of forfeiture.

The ease was then fixed for trial, and the defendant failing to appear a second judgment of forfeiture was rendered. In this latter proceeding the District Attorney offered and filed in evidence the bond, which he had neglected to do in the former forfeiture.

This is an appeal from this second judgment, forfeiting the bond.

The defence is, first, that there could be no second forfeiture of the bond; second, that the defendant surety had filed a motion to set •aside the forfeiture, which was by the judge taken under advisement and undisposed of when the second judgment of forfeiture was rendered, and therefore no proceeding could be had in the case until that was disposed of; third, that the recorders of the city of New Orleans are without authority to take bonds in cases in which the penalty is death or hard labor; fourth, that the bond was not ^authentic, and proof was required of its execution; fifth, that the Criminal District Court of the parish of Orleans had no civil jurisdiction, and can render no moneyed judgment.

1. The judgment setting aside the first forfeiture placed matters in the same condition in which they were before the judgment had been rendered, and the accused was before the court with the crime charged against him, to which he was bound to answer in person from day to day until disposed of, according to the conditions of his appearance bond. It was competent for the court to render any •order in the caso and to fix the same for trial. . The fact therefore of the bond once having been forfeited is no objection after it has been set aside for another judgment of like character to be entered in the case.

2. The judge in setting aside the judgment of forfeiture first entered, granted all that the surety asked and prayed for in his motion, and he therefore has no reason to complain. State vs. Ford (not yet reported).

After the order setting aside the forfeiture had been rendered, there was no motion to this effect pending in the case. It had been disposed of by the judgment. The reasons alleged in this motion by the defendant surety were all to the same effect and purpose, that the judgment of forfeiture should be overruled.

In granting the same relief, sought by the surety, on the motion of the District Attorney, because the judge adopted some of the grounds and omitted others, as his reason for setting aside the judgment does not leave the omitted reasons of the defendant’s counsel as a standing undecided motion.

3. The recorder was fully authorized to take and acknowledge the bond. Act No. 269 of 1859, approved March 17, 1859; Art. 136, Constitution of 1879.

4. The bond was in proper form and duly authenticated by the ■ recorder before whom it was taken. It made full proof of itself. State vs. Lewis, 7 An. 511.

5. Art. 130 of the Constitution of 1879, in defining the jurisdiction of the Criminal District Court for the parish of Orleans, says that it shall have general criminal jurisdiction only.

There is no limitation to its criminal jurisdiction. The forfeiture of the appearance bond and the judgment and execution thereon were proceedings springing directly from a criminal prosecution and were necessarily of the character of criminal jurisdiction.

The forfeiture of a bond in a criminal case for the appearance of the accused is not a civil but a criminal procedure, to be tested alone on a question of jurisdiction by the character of the crime charged against the accused. 7 An. 276; State vs. Williams, 37 An. 200; State vs. Sam. Burns, 38 An. 363.

Judgment affirmed.

Rehearing refused.


author: Bermudez, C. J. Bermudez, O. J.

text:
    No. 10,445.
    E. Reusch & Co. vs. Keenan & Slawson et als.
    Suretyship evidenced in writing must be enforced, in the absence of documentary proof or equivalent oral testimony destructive of the contract.
    Charges that the surety was induced by fraudulent representations to obligate himself, must be established by irresistible affirmative proof, implicating the creditor, to upturn the otherwise unequivocal and absolute agreement.
    Proceeds of a judicial sale must be applied to the payment of mortgage claims according* to their respective ranks, to be ascertained by the dates of registry.
    A surety has the right .to compel the creditor to credit his claim with amounts which he has received but improperly imputed.
    Judgment amended by reducing it to $1175, and thus amended, affirmed.
    The failure of the owner of a note secured by vendor’s privilege on certain lots to aver and enforce it, expressly amounts to a waiver of the same in an action brought by him on the same note, secured by a different acton the same and other lots, where he alleges only the second act, and has all the lots sold in globo. In such a case it is impossible to discriminate what portion of the proceeds of sale could accrue to the note, secured by vendor’s privilege on part of the lots.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      W. 8. Benedict and H. C. Cage for Plaintiffs and Appellees.

      Harry II. Hall for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to recover a judgment-against Keenan & Slawson, as drawers of a mortgage note of §8100, with interest and attorney’s fees, and against Patrick Egan, as surety,, for same amount.

The plaintiffs also seek to have annulled certain conveyances of real estate made by Egan, with a view to place the same beyond the reach of his creditors, to several parties who were made defendants.

From a judgment in favor of plaintiffs, less a credit of $550, all the defendants, save Keenan & Slawson, have appealed.

The defence of Egan is, that he was induced by fraudulent representations, made by.one of the plaintiffs, to become surety on the note, and that, if he fail in establishing this, the note ought to have been credited so as to be reduced to $1175.26.

The other defendants were condemned on interrogatories on facts and articles which, remaining unanswered, were taken pro ooUfessis, but practically they do not defend themselves, their fate being linked with Egan’s.

There can be no doubt that Egan bound himself as surety on the note of $8100 sued on, but the conflicting proof adduced by him to show that he consented so to be, on fraudulent representations of one of the plaintiffs, was not deemed sufficient by the District Judge to relieve him.

In such cases the best proof should be a written instrument, and in default, evidence of equal import and efficacy, to say the least.

It may be that Egan was induced, as he says he was; but as he bound himself so must he remain, unless he shows unequivocally, that he never was so, under circumstances which bind the party seeking to hold him liable.

The only serious question in the case relates to the credit claimed by Egan.

The record shows that on June 14, 1884, Keenan & Slawson issued to the plaintiffs four notes, two for $3000 each, one for $4000, and another for $8100, payable at different dates and secured by mortgage on ten certain improved lots of ground in New Orleans, the first three notes at the time, and the last note subsequently, endorsed by Patrick Egan as surety; the act of mortgage, dated June 14, 1884, being recorded in the mortgage office on June 16 following.

The two notes of $3000 each were subsequently paid.

In August, 1887, proceedings via exeeutiva were brought for the use of plaintiffs by Benedict on two notes of Keenan & Slawson, one for $3250 and another for $1390, claimed by him to be secured by mortgage on the same ten lots by act dated June 14, 1884, the same being recorded in the mortgage office three days later, i. e., on the 17th.

The lots were seized and sold, realizing $15,000, which were distributed as follows:

City and State taxes - - - - $ 2,388 55

A vendor’s note, in capital, interest, etc. - 1,170 55

Another like note - ------ 1,096 55

The notes sued on, $3250 and $1300 and interest - - 5,755 07

The $4000 held by plaintiffs was credited with the difference 4,589 29

$15,000 00

There is no dispute by Egan of the propriety of the payment of the taxes and of the vendor’s notes, amountingjtogether to $4655.65; but he contends that the balance of the price of adjudication, $10,344.35, ought not to have been distributed as it was. He insists that this amount should have been prorated between the two notes of $4000 and $8100 held by Reuseh & Oo., not a particle thereof to accrue to Benedict, as holder of the two notes of $3250 and $1390 sued on by him, for the reason that the mortgage by which these two notes were secured, was inferior in rank to that by which the other notes of $4000 and $8100 were secured; and that, had this been done, this last note would have been reduced by $6924.74.

In this he is undoubtedly correct. The act securing the Benedict notes was recorded on the 17th of June, 1884; while that securing the notes of Reuseh & Co., one for $4000 and another for $8100, was recorded on June 16, 1884, one day previously.

The proceeds of sale ought to have been applied to the payment of the mortgage claims, according to their respective rank, to be ascertained by the dates of registry.

Egan has a right to compel plaintiffs to properly credit the note sued on.

Deducting, therefore, from the $8100 note sued on the amount with which it should have been credited, the balance due on it would be $1175.26 only.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing it to eleven hundred and seventy-five dollars and twenty-sis cents ($1175.26), with interest as allowed, with 5 per cent, attorney’s fees thereon and costs, and that thus amended said judgment be affirmed at plaintiffs’ costs.

On Application for Rehearing.

Bermudez, O. J.

While it is avowed that the note for $1390 ought not have participated in the distribution of the proceeds of sale, it is pressed that the court erred in not allowing to the note of $3250 its share of the same.

This pretension is based on the averment that the payment Of this note was secured by vendor’s privilege and special mortgage, on June 14, 1884, on five of the ten lots, and that the act was recorded on June 16, 1884.

This act is not in the transcript. The certificate of mortgage, to which reference is made, does not identify the note and supply the omission to establish either of those two things.

When suit, via exeautiva, was brought, to enforce payment of this note and of the $1390 note, no allusion whatever was made to the vendor’s privilege and to the mortgage on the five lots.

The two notes were sued on as two simple ordinary mortgage notes, secured on the ten lots, and the act of mortgage, showing the fact, was attached to the petition, ending with a certificate from the Recorder of Mortgages, showing its registry, not on the 16th, but on the 17th of June, 1884.

If this note was secured, as is now urged, the fact ought to have been alleged and proved and prayer made that the privilege' be enforced against the five lots, by selling them separately, but nothing of the hind was done. No averment was made, and the ten lots were sold in block, in globo.

Surely, if the owners of the note had the rights presently claimed, things have been put by them in such a condition that it is impossible to discriminate what portions of the proceeds should accrue to them.

They have no right to complain.

Rehearing refused.


text:
    No. 10,551.
    Wickham & Pendleton vs. W. T. Nalty, Interventions of J. J. Nalty et al.
    In an attachment proceeding, in which a third opponent claims the ownership of a specific item of property, the value of such property is the test of jurisdiction in case of an appeal involving the contested claim of such opponent.
    In a similar proceeding, if a third opponent claims a privilege on the proceeds of the property attached, the value of that property, and not the amount claimed therein under a prior lien or privilege, is the proper test of the appellate jurisdiction.
    A party claiming a privilege for salaries due him as overseer can not recover under proof that he was merely a laborer.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Steele & Dagg for Plaintiffs and Appellants.

      Luee & Lemle for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Poché, J.

This complicated litigation began by an attachment, sued out against defendant’s property, subsequently followed by a second attachment of other property, consisting mainly of a stock of' goods in a country store, of cotton, and of mules and horses.

Numerous third oppositions were then filed by other parties, some' of whom claimed the ownership of some specific items of the property which had been seized, and others claimed. preference of payment over the attaching creditors for amounts due to them respectively.

1. Mrs. Bridget Nalty claimed the ownership of some mules which, had been attached as belonging to the defendant.

2. J. J. Nalty claimed the ownership of some cotton, and of the contents of the store, of a lot of cotton, and of farming implements,, all of which had been attached as the property of the defendant.

3. Thomas Lynch claimed a privilege for unpaid salary due to him. as a clerk in the defendant’s store.

4. Fred Claiborne claimed a privilege for unpaid balance due him on his salary as overseer.

Several other third oppositions were filed, but, as they are not involved in the present appeal, they need not be mentioned or described in this opinion.

The judgment below was as follows:

1. In favor of third opponent Bridget Nalty, recognizing her as the owner of the mules which she claimed.

2. In favor of third opponent J. J. Nalty, for all the property which he claimed.

.3. In favor of Thomas Lynch, allowing him the privilege which he claimed on certain goods recognized as the property of the defend•ant.

4. In favor of Fred. Claiborne, enforcing his privilege on hay and corn decided to belong to the defendant.

In other respects the judgment went against the defendant, fixing his indebtedness to plaintiffs at the sum of $2370.84, and sustaining the attachments sued out against his property.

Plaintiffs have appealed, and the defendant moves for an amendment of the judgment, so as to reject plaintiffs’ demand. J. J. Nalty, one of the third opponents, prays by way of annulment for ■damages for the wrongful attachment of his property.

The other third opponents move to dismiss the appeal in so far as it affects them respectively on the ground that the respective amounts involved as to them are not equal to the lower limit of our jurisdiction.

1. As to the motion of Mrs. B. Nalty, it is admitted on the part of •appellants that the aggregate value of the mules which she claims is .less than $2000; hence it follows that this court has no jurisdiction •over that part of the contestation which affects her claim.

It is settled in our jurisprudence that the value of the property ■seized, the ownership of which is claimed by a third opponent, is the test of jurisdiction on appeal. Meyer, Weiss & Co. vs. Logan, 33 An. 1055; Schleider vs. Martinez, 38 An. 847. We must therefore decline jurisdiction of that branch of the case.

But a different rule applies to the motions made by third opponents Lynch and Claiborne, whose respective claims amount each to much less than $2000.

They do not set up ownership to any specific item of the property .attached, but they merely seek to enforce a ranking privilege on the proceeds of some of the property seized. Hence their cases involve a claim to a portion of a fund held by the sheriff for distribution, and in such cases the jurisdiction of the court is to be tested by the value of all the property attached, which will furnish the fund to be distributed, and if that exceeds $2000, as is shown here, our jurisdiction attaches, without reference to the amount therein claimed. Walsh vs. Corinne, 36 An. 199; Renshaw vs. Stafford, 34 An. 1138.

We therefore conclude that the motion of these opponents can not prevail.

It is therefore ordered that the motion to dismiss the appeal, in so far as the interests or claims of Thomas Lynch and of Fred Claiborne are therein_affected, be denied, and it is ordered that, in so far .a? it refers to the claim of third opponent Mrs. Bridget Nalty, the appeal herein taken be dismissed at appellants’ costs.

On the Merits.

1. The claim of J. J. Nalty, as the owner of a country store, and of other property hereinabove described, is resisted by appellants, on the ground that the opponent’s purchase of a certain store from his brother, the defendant herein, was a mere simulation, intended to screen said property from the pursuit of the creditors of the defendant, who had been notoriously insolvent for more than a year previous to the pretended transfer to this opponent, and that the business which the latter had carried on since the simulated transfer, and the property thereby acquired, were in truth and in reality the business and the property of their debtor, W. T. Nalty.

They rely on the evidence of a respite obtained from his creditors by the defendant, who had included in his schedule or statement the very store now claimed by his brother, the opponent, who was then notoriously impecunious, with no resources or income but his salary of $25 a month, as clerk in a country store, and absolutely without the means to purchase and carry on a store.

There is a great deal of testimony in the record tending to show that the whole transaction was somewhat suspicious and to justify the course pursued by the attaching creditors in this case.

But there is proof in the record to the effect that opponent’s mother, who is shown to have had means in ready cash and valuable property in Natchez, Mississippi, had loaned opponent the funds used in the purchase of the store, and in the purchase of goods to renew the stock therein, which had dwindled down to almost nothing at the date of his purchase; and that she had also loaned to him the mules, which she owned, for the cultivation of some lands which he had rented and which he cultivated in cotton and corn during the year 1888, from which he had produced the cotton and corn seized herein by appellants.

These facts are positively stated in their testimony by opponent, and by his mother, and their evidence is in part corroborated by disinterested witnesses.

That evidence is not directly contradicted in the record, and is assailed by appellants merely on the ground of its improbability, and on the strength of some conflicting circumstances. But it can not be discredited by the court on any other hypothesis but that of wilful perjury on the part of the witnesses who gave it.

Now the District Judge, who heard and saw those witnesses testify, who is doubtless personally acquainted with them, and who therefore had a much better opportunity of testing their veracity than we have, believed them and gave effect to their testimony. Hence we find no warrant to justify us in concluding and holding otherwise. As the opponent was in possession of the property, and in full control of the store and of its business, as shown by numerous bills and statements of merchants with whom he dealt, either in the consignment of cotton or in the purchase of goods, the burden of proof was on appellants, and they have failed to make out their ease.

On the question of damages claimed by this opponent on account of the wrongful attachment, we And that the District Judge entirely ignored that feature of the case, which must be construed as a rejection of the demand. Owing to the circumstances surrounding these • transactions, as hereinabove detailed, we are satisfied that appellants were not prompted by malice, and, as the record contains no testimony of the actual damages suffered by this opponent, we conclude with the District Judge that no damages should be allowed in the premises.

2. The claim of Thomas Lynch is fully sustained in the record, and it was therefore properly allowed, both in the amount sued for and as to the privilege claimed.

3. The claim of Ered. Claiborne is not sustained by the record, which shows that he was not employed as an overseer, but merely as a laborer in common with others, of whom he was the foreman. But he did not superintend or oversee the labor, the working animals and the general operations of the plantation, an,d hence he was not an overseer, within the scope and meaning of the textual provisions of the Code. Art. 3218.

The argument of his counsel that his wages as a laborer are also secured by a privilege on the crop, and that he should now recover in that capacity is not sound. He must stand or fall by his pleadings.

He is in the legal attitude occupied by the third opponents in the case of Scannell & Lafaye vs. Beauvais, 36 An. 217, who had originally claimed a privilege on a sugar house and on the acre of land upon which it stood, but who made out a claim to a privilege on machinery alone. The opponent here may be answered in the language of the court in that case:

“They ignored and abandoned the privilege the had, and set up and attempted to enforce a privilege they had not, and the penalty they suffer is the loss of what they might have secured, for they are now remediless.” See also, Shakspeare & Co. vs. Ware, 38 An. 570.

We find no error in that part of the judgment which recognizes and enforces the moneyed claim of appellants against the defendant and sustains the attachment on so much of the property seized as was found to be his.

The contention of his counsel, to the effect that, under his contract of respite with his creditors, defendant had become simply their agent, and that as such he was not liable to the remedy of attachment, can hardly be serious.

Carried to its full length, the argument might have subjected him to a prosecution for embezzlement.

It is therefore ordered, adjudged and decreed that the portion of the judgment of which the court has retained jurisdiction be amended by rejecting the privilege therein allowed to third opponent Fred. Claiborne, and that his claim for a privilege be rejected; and that in all other respects said judgment be affirmed, at the cost of appellants, save the costs incurred by the opposition of Fred. Claiborne, which costs in both courts are to be taxed to said Claiborne.