text:
    No. 2954
    The State of Louisiana v. Hugh O. Ames.
    Article 911 of the Civil Code, which provides that, when the deceased has loft neither lawful decendants nor lawful ascendants nor collateral relations, the law calls to his inheritance ^either the surviving husband or wife, or his or lior natural children, or tlio State, does •recognize the State as an heir, entitled to inherit, in the absence of all other heirs, therefore tho-Stato, liol being airheir under any circumstances, is not entitled to notice of the probating of a will, as provided in article 933 of the Code of Practice.
    In considering the question of the authenticity of an olographic will, courts will not give effect to the novelty of the testator in the selection of the place of deposit of the paper-containing his last will, nor to the whims and vagaries in the dispositions of the last will and testament/ But, on the contrary, they will look to the evidence tending to establish its genuineness, and if the document produced is shown by the evidence to bo the last will and testament of the deceased, it will be so held, notwithstanding the circumstances surrounding its discovery, and the dispositions thereof may reasonably excite suspicion of its being the veritable act of the testator.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaud, J. Simeon Bolden, Attorney General, and J. W. Thomas, for the State, appellee.

      0. Eoselius and Alf. Ehilips, lor defendant and appellant.
   Taliaferro, J.

This is a suit to annul a judgment confirming- an act of last will and putting in possession the party named therein as universal legatee. The action is brought in the name of the State on the alleged ground that tlio will probated is a forgery, and that the succession, pretended to be bequeathed by it, belongs of right to the-State, in default of there being any one legally entitled to succeed.

Tlio answer is a general denial.

There was judgment in the court below, annulling the order probating the will and ordering its execution as having been rendered contrary to law. The defendant has appealed.

The grounds taken in behalf of the State arc: That the order granted for the registry and execution of the will was rendered ex parte, and; without the notice required by article 935 of the (’ode of Practice; that,' it was rendered on insufficient evidence; that tho document, presented for probate and purporting to be the olographic will of Joseph Field, is spurious and fórged, never having been written or signed by him.

Joseph Field, the alleged testator had been for more than fifty years a resident of this country, and, during the greater part of that time, a citizen of New Orleans, where he died, at an advanced age, on the twenty-second of October, 1862. He had acquired an estate appraised at his decease to over sixty thousand dollars, and he was free from debt. Many years ago he had'a partner in business named Jesse Cowand, with whom he lived on terms of intimacy and friendship during the life of the latter. After the death of Cowand, Field, it seems, lived most of the time with Cowand’s children, of whom there were several daughters married, and two or three sons. Field was never married, and had no known relatives of any description. He appears to have been attached to the children of his old friend and partner, and the evidence makes it pretty clear that ho intended to leave his property among them at his death. This was the belief of the family generally, and the succession he left has proved an apple of discord among them, and given rise to dissentions and improper feelings, which, unhappily, are often engendered under similar circumstances.

At the time of Field’s death, a most diligent search was made for the expected will, but without effect. An administrator was appointed, who had the estate under his charge about two years, when he died, and, during the pendency of proceedings to appoint a successor, an •instrument of writing, the one which is the subject of this litigation, was found and presented for probate as the last will and testament of Joseph Field. The circumstances under which, after a lapse of more than two years, this instrument is said to have been found, are somewhat novel, and, it is contended on the part of the plaintiff, sufficient to stamp it as the offspring of fraud and collusion. It is shown to have been found attached by paste or mucilage to the under side of the tray or till of a common leather trunk which had.been in the possession of the defendant, Ames, ever since the death of Joseph Field. The wife of Ames is, by this strangely discovered will, named the universal legatee of the testator. The act is dated thirteenth October, 1862, during the last illness of Field, who, as we have before seen, died on the twenty-second of that month. It is dated No. 422 Dryades street,” New Orleans.

Amanda M. Cowand, the wife of Ames, was one of the daughters of Jesse Cowand. Subsequently to the probate of the will she died, and by act of last will constituted her husband, the defendant, universal legatee of her estate.

Recurring, now, to the grounds set up on the part of the State for-annulling the will, we take the first — that the order for the probate of the will was ex parte, and rendered without the notice required by article 935 of the Code of Practice.-^ That article provides that, the party praying for the opening- and proof of the will shall cause to be-summoned the number of witnesses possessing the qualities required 'for such proof, and if tho presumptive heirs of the deceased, or any of them, reside in the place, he shall give them notice, in writing, that they may attend, if they think proper, at the opening and proof of the will.” Within the meaiiing^oUthismriichi^it is argued that the State may become tho presumptive heir of a deceased person, and that it .always is the presumptive heir, when more than one year elapses without some one, having a better right, presents himself to claim it. Reference is made to article 91L of the Civil Code, which provides that, “ when the deceased has left neither lawful descendants nor lawful ascendants, nor collateral relatives, the law calls to his inheritance either the surviving husband or wife, or his or her natural children, or the State, in the manner and order hereafter directed.” This article, it is contended, recognizes the State as an irregular heir, and that, more than one year having elapsed without any heir to the estate of Field having- presented himself, the State had become the presumptive heir, .and was entitled to notice of the application for probate of the will. This -doctrine we are not able "to assent to. In no proper sense, we apprehend, can the State be 'styled an heir, when, in the absence of heirs •of every denomination by law capable of succeeding- by inheritance, the property of the deceased owner becomes vested in the public, and is at the disposal of the government. On this point Demolombe says: ■“ Th&fourth law of the Code of Justinian, Be bonis vacantibus declared, JBona vacantia mortuorum tunc ad fiscum jubemus transferid, si nullum .«.» qualibet sanguinis linea vel juris titulo legitimum relinquerit intestatus dhacredem.i’ Such, then, is tho true cause of acquisition to the profit of the State; the State is not in reality an heirjn^a-sucSessbrT'brthe technical sense Of tin's word, for it acquires'by the title of escheat; that is to say, precisely in virtue of a title which supposes, necessarily, that there are no heirs; which caused Bacquet to say that, when a man dies without heirs, the goods left by his death non voeantur bona hereclitarea sed vacantia nominantur. In a word, the State exercises in this matter tho eminent right of sovereignty, in virtue of which it •appropriates all property without a master which is found within its territory.” Yol. 14, pp. 259 and 260.

It is objected that the order establishing- the will was rendered upon insufficient ovidonco. Three witnesses wore sworn. They all testify that they recognized the will to be entirely written, dated and signed by Joseph Field, their knowledge being derived from having often .seen him Write and sign his name. Upon the trial of the case, these witnesses were re-examined, and from the result the counsel on the part of the plaintiff deduce their entine- ignorance of the handwriting of the testator. We do not find that the re-examination of the witnesses warrants -this deduction. Two of the witnesses, the defendant and Aken, upon strict interrogation, say unqualifiedly that they had seen Mm write, and they specify the times and occasions on which they saw him write. Aken represents Field as a man having but few correspondents, and who never wrote except on business or to some of the Cowand family. Ames says substantially the same thing. “I think,” said this witness, “he wrote but seldom. He had but few correspondents; I know of no one in the city he corresponded with. He had some correspondence with the secretary of the Southern Pacific Railroad Company; he was a large stockholder; I saw him write these letters; this was in 1858 and 1859. * * * I never saw him write letters to any other parties; I think his correspondence was verj limited; he wrote three in my presence, which I read; the subject matter of these letters was dictated by me?; I mailed the letters. He wrote two checks between 1858 and 1859.” The other witness, Lie-brook, seems to have been but little regarded by either party in this contest, and the record abounds with proofs of his tergiversations and recklessness. We see nothing in the testimony of the two witnesses, Ames and Aken, that shows they were ignorant of the handwriting of Field. The evidence, however, shows that they could not have seen him often write and sign his name, but it also shows that Field did not often write. In the matter of the succession of Daniel' Clark it was held that “the rules for the opening and proof of testaments, commencing at article 1649 of the Code, do not pronounce the penalty of nullity for their non-observance, and they nowhere say that other cases may not arise in which the strict letter of these rules may not ho inapplicable, and the judge may not receive, in extraordinary eases, other equally satisfactory proof that the requirements of the law have been fulfilled. If a will is valid, the irregular proof on which it may have been admitted to probate, will not he permitted to-affect the rights of the parties under it.” 11 An; 128.

The counsel for the State insist with much earnestness, that on the thirteenth day of October, 1862, the day on which Field was removed from the house of Mrs. Herrick, No. 422 Dryades street, being the day on which the will was dated, the testator was, from his great prostration by disease, physically unable to write and to place the will in the position in which it was said to he found. It seems that Field was removed about nine o'clock A. M.; that he was then greatly enfeebled from diarrhea, which the attending physicians seem to have thought, necessarily fatal to a person of his great age. The wife of one of thephysieians, Mrs. Ball, states in her testimony, that upon a suggestion to that effect by her husband, she said to Mr. Field the day before he was removed: “Yon are very sick, and if you have anything to settle,, yon had better do it.” To which he replied: “I am aware of my condition. I have twice told yon before, I have made my will and all my business is settled. This witness, it appears, visited the testator-several times and assisted in nursing him. Slie states that he was perfectly prostrated from the time he was taken sick; that he was unable to rise from his bed, and that he was so nervous that he could not hold a glass to his mouth to take water or medicine. The morning he was removed, he could not walk or sit up by himself.” In the main, this testimony is sustained by Mrs. Herrick, at whose house he was taken sick. These witnesses both say that Field was removed in a carriage or cab. But this testimony conflicts materially with that of several other witnesses. Ames says that “Field, during the war, was with Mrs. Herrick on Dryades street; he was alone in the house with her; for economy and security it was arranged that she should come and live with us; she removed the furniture first, leaving him there; she came to my house on Saturday; the next fiiorning the negro girl, Caroline, came and said it was a shame that Julia (Mrs. Herrick) had left the old gentleman behind siek. My wife went round to see him. On Sunday evening, I visited him with Dr. Pos't. We ascended the stairs; the door was locked; we knocked ; Mr. Field opened it.” In regard to the removal of Mr. Field the next day, the witness says: “ He (Dr. Post) wont to the house with me to bring Mr. Field round to my house ; Mr. Field was between me and Dr. Post, and walked to my house, a distance of seven squares and a half.” Caroline Stevens, a witness, says: “ I staid with him all the time during his last illness. * ’* * lie was not confined to bed entirely. * * * He war lying down all day Sunday, except when he got up to go out and come back. * * * When Mrs. Herrick went away, he walked up and down stairs by himself. Mr. Field was never so sick in Mrs. Herrick’s house that it was necessary to lift him out of bed. I am certain Mr. Field was walked from Mrs. Herrick’s house to Mr. Ames’; I am certain of this.” In regard to the manner of the removal of Field, the statement of Ames and Caroline Stevens is corroborated by the testimony of Mrs. Leech and Windsor Campbell. Indeed, Mrs. Herrick, in a subsequent part of her testimony, admitted that she knew nothing of the manner in which he was removed; that she knew it only from hearsay. The evidence does not incline us to believe that there was, on the day the will purports to be dated, such a prostration of the bodily powers of Mr. Field as to have rendered it physically impossible for him to write the will or to deposit it where it was found.

In relation to the genuineness of the will, the judgment of experts, persons who were acquainted with the testator, was taken on the trial of the case, in the court below, by a comparison of the signature to the will with genuine signatures of Mr. Fieíd on bank checks introduced in evidence. One of these, a president of a bank, spoke doubtingly on the subject. Ho “ would not have paid checks having the same signature to them as that to the will and envelop. The signature to the will and the envelop seem to be written by a sick person. I knew Mr. Field to be an old man, and it is possible that, in sickness, bis handwriting and signature might have varied much.” The treasurer of the Savings Institution found that “some of the checks, numbers one, two and throe, compared very well, except in the trembling-in the will. The signatures to the cheeks five and thirteen do not compare well with that to the will, nor do they compare to the check number fourteen. I know the cheek number fourteen to be Mr. Field’s handwriting, for I paid it myself. The body of the check was written by me. If at the time when, the signature to the will was written, Mr. Field had been sick, I should sa.y it was signed by the same person who signed check number fourteen.” A book-keeper and clerk in one of the banks of New Orleans said: “ I was acquainted personally but not intimately with the late Joseph Field; Iliad occasion every six months to give him a check for his dividend; I was at the time familiar with the signature of Mr. Field; I recognize the signature on the will, marked A, now presented to mo, to be his, as far as my judgment .goes.” The statements of these three witnesses, taken together, we think, are rather in favor of the genuineness of the will than against it. These men, we may suppose, have no interest or feeling in the matter. The testimony of the defendant and that of Jesse Cowand and A. K. Alton are in support of the genuineness of the instrument. Liebrook’s testimony is equivocal, and entitled to little weight. These are all the witnesses that testified as to the handwrite and signature of the testator.

It is in evidence that the trunk in which the will was found was strictly examined at the decease of the testator, with the view of finding a will, and that it passed into the possession of the defendant and has ever since been kept in Iris house. In it were found, at the time of the inventory, most of the valuable papers of the decedent. It must ho admitted that the history of this will is not free from some degree of romance, and the facts and circumstances connected with it are calculated, not unreasonably, to excite suspicion of its being the veritable act of last will of Joseph Field. But we should bear in mind that examples are not wanting of whims and vagaries displayed by testators, as well in regard to the jfiaces chosen to deposit their wills, as to their contents. There is an air of improbability in the account given of so scrupulous a Search being made for the much desired act, and that, in the identical trunk that contained it, without success; that it escaped the sight of all so intensely occupied in pursuit of it, and that an accident alone led to its discovery more than two years afterwards. Yet it is clear that such an occurrence is not impossible. The important point in such a case is, to determine, if possible, whether the instrument be genuine or spurious. To this end we have examined the evidence with much care. We have had, presented for our inspection, the act itself with letters acknowledged to have been written by Joseph Field, and also the checks proved to have been signed by him. We have compared the handwriting and the signatures, and, after full consideration of the whole, we do not feel justified in pronouncing the act a forgery. We think its validity •established, and that it should be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed; that the defendant be quieted in his ownership and possession of the property acquired by him, as the universal legatee of his late wife, Amanda M. Cowand, ■and which was denied to her, as the universal legatee of Joseph Field, •deceased.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 2170.
    Michael Ayland v. Mrs. Catharine Rice.
    A painter who undertook to have the work of painting a house done, purely as an act of friendship, without any charge on his part, and, when it is completed, furnishes the owner with a memorandum of the cost of materials furnished and labor employed hy him, can not afterward, on the mere refusal of the owner to pay the hill, recover more than the amount so charged in the hill. In this case it was held that the refusal hy the -owner to pay the hill, £rst made out hy the painter, did not create an agreement or obligation to pay additional charges for his own services and supervision of the work which he had undertaken gratuitously.
    APPEAL from the Fourth District Court, parish of Orleans.

      Theard, J. Field t& Shackelford, for plaintiff and appellee.

      Randolph, Singleton d; Jirowne, for defendant and appellant.
    This case-was tried by a jury in the court below.
   Howe, J.

This case comes before this court for the second time. 20 An. 65. The present appeal is taken from a judgment entered upon •a verdict of a jury in favor of plaintiff for the sum of $800.

- The facts seem to be substantially as stated in the brief, of plaintiff’s ■counsel, and as follows:

The defendant, desiring to have one of her houses painted, applied to plaintiff, who, “purely as an act of friendship, undertook to have the work done.” When it was finished, he handed defendant a memorandum of the money he had paid for material and labor, amounting to $1039, not as his charge for the work, but simply to show her what the painting had cost him, without including his own services, “ for which, at that time, he did not intend to charge.” The amount seemed to defendant too large, and a quarrel ensued. The plaintiff then made out a bill for the work, “including in it compensation for his own labor and supervision at the customary prices,” amounting to $1350, upon which the suit was brought; He had received $550 during the progress of tlie work, and it was for the balance of $800 claimed that the verdict was rendered.

It seems to us that the verdict was too large by $320. The undertaking of plaintiff was purely gratuitous. There was no aggregatío menlium between the parties, by which a contract to pay him anything for his own services and supervision was established. If, as he alleges, when he presented the first memorandum of $1030, “ the defendant became angry, and insultingly threw the memorandum back in his-face,” her conduct did not create an agreement to pay $320 more.

It is not necessary to pass upon the bills of exception reserved by defendant to the refusal of the judge to charge the jury as requested. No testimony was excluded, and the whole case is before us on its merits. Mahony v. Rugely, 21 An. 330; Howell v. St. Charles street Railroad Company, 22 An. 603.

It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof to four hundred and eighty dollars; that as thus amended it be affirmed, and that plaintiff pay the costs of appeal.


author: Howell, J.

text:
    No. 3052.
    State ex rel. S. M. Burnett v. H. C. Warmoth et als.
    Tlie act of the General Assembly, approved sixteenth of March, 1870, authorizing the payment of the floating debt of the State by the negotiation, of State bonds at a fixed rate or by funding the warrants of the State in bonds at a fixed rate, which created a hoard of liquidators, with power to sell the bonds, not below a fixed rate, within a given time, did not make it peremptory on said hoard to sell said bonds at that rate if a higher price could be had, nor did it prohibit the sale of the bonds after the limitation had expired, provided they realized the price fixed in the act.
    Therefore the board of liquidators, having left to them a discretion as to whether they would soil the bonds or not and astotbotime of sale, cannot be compelled by mandamus to exchange bonds authorized to be issued by this act for warrants held by the creditors of the State.
    The doctrine heretofore announced by this court is reaffirmed in this case, that a mandamus will never issue to compel a public officer to perform a ministerial act where the law, creating or requiring such duty to be performed by the officer, allows him a discretion either in the manner or the matter of doing it.
    APPEAL from the Eighth District Court, parish of Orleans.

      HtbMe, J. Hays & JSew, for relator, appellaut.

      8. JBelden, Attorney General,, for defendants.
   Howell, J.

The relator has appealed from a judgment refusing a peremptory maudamus against the board of liquidation, composed of the Governor, the Auditor and the Fiscal Agent of the State.

The only question is the interpretation of the third section of “An Act to provide for the payment or funding of the floating debt of the State by the issue and sale or exchange of State bonds,” under which the relator claims the right to exchange a large amount in State warrants for said bonds at the rate fixed in said section.

Tile first section of the act authorizes and directs the Governor to issue bonds to the amount of three millions of dollars. The second section constitutes the board of liquidation, who are authorized to sell said bonds, iu certain named cities, at not less than seventy-two dollars on the one hundred, the proceeds to be paid into the State treasury to the credit of this fund and to be employed, under the direction of the board of liquidation, exclusively for the payment and redemption of the floating debt of the State, past due interest coupons and past due State bonds, due and adjusted prior to first April, 1870. The third section reads :

“That, if at the expiration of the thirty days from and after the passage of this act, the said board of liquidation shall not have sold the said bonds in accordance with the provisions of the second section of this act, then and in that case, they are hereby authorized and empowered to exchange the aforesaid bonds at the rate of one hundred dollars in bonds for each and every seventy-two dollars of all outstanding evidences of indebtedness against the State of Louisiana, which may have been issued in accordance with law prior to the passage of this act,” (sixteenth March, 1870).

At the expiration of the thirty days one-third of the bonds were unsold.

The question presented is, was it the intention of the Legislature, which is the test, to confer any discretion or impose a positive and absolute duty in regard to the exchange of the bonds ?

If it is clear that the board has no discretion, but must, after the lapse of thirty days, exchange the bonds, whatever may be their value, for the specified evidences of debt, the writ prayed for should be granted; but if there is any reasonable doubt, it should not. See State ex rel. Bonnabel v. Police Jury of Jefferson, decided December 12, 1870.

The duty of the Legislature was to provide for the prompt ¡payment of the floating debt, and its'primary object, in adopting this statute, was to meet this duty and procure the money to pay with, and in fixing a minimum limit upon the sale of the bonds it limited the discretion of the board in that direction, but not their duty as faithful agents, to procure the best price possible, the public credit and public honor being involved. But it also provided, that in case this minimum price should not be obtained within a certain time, the agents should be empowered to exchange the bonds with the creditors at said minimum price or rate. The words used are authorized and empowered.” There are no terms used, however, which restrict the sale of the bonds to thirty days, and it is not a strained construction to say that, after the lapse of that time, the board, as faithful agents, might either sell or exchange, as the public good required.

Suppose, at the time indicated, none of the bonds, from any cause ■whatever, had been sold, does the statute mean that tho creditors,, holding the specified evidences of debt, could obtain nothing for them, except those bonds at the rate mentioned, and the board of liquidation would be compelled to exchange them, although they might, at that particular date, begin to advance and come into demand at a much higher rate ? Was it the intention of the Legislature to give to the creditor the opportunity of speculating upon the public securities or to provide the means of paying and liquidating j ust debts 1

These inquiries, we think, are calculated to raise a reasonable doubt as to discretion or no discretion in the board of liquidation, and while we consider it their duty to discharge the functions of their trust with fidelity and promptitude, yet the case presented does not authorize or compel the writ of mandamus as demanded.

Judgment affirmed.


text:
    No. 3047.
    State v. Vincent Bayonne alias Saragodas and Pedro Abriel.
    In an indictment for murder the accused is charged with killing and murdering one Ambrosio whose first name is unknown. The jury found a verdict of guilty, and the accused pleaded in arrest of judgment, that the indictment was void for uncertainty, in not giving the first name of tho deceased; that tho description by name of the person killed is repugnant, because Ambrosio in I'renoh or Spanish, in Latin Ambrosius, in English Ambrose, are first names. Held — That a description of the deceased by the first or second name is sufficient, if the fact be stated that the other name is not Jaiown; that the indictment is not void because the first name of the person killed is not given.
    A bill of excei>tions was also taken to the ruling of the judge a qt¿o, in reference to the testimony of an accomplice, as follows: The judge charged tho jury that the witness, charged as an accomplice, was as any other witness, but that his credibility was entirely with tho jury; that, if they belioved his testimony, it was competent for them to find a verdict on his testimony alone; but ho advised them not to do so unless this testimony was corroborated; that they were judges of both law and fact.
    Held — That this charge, taken as a whole, was not erroneous; that the State has the undoubted right to make use of the testimony of an accomplice, and be is a competent witness, yet the credibility of his testimony may he subject to suspicion, which the jury, under this charge, were not prohibited from considering.
    APPEAL from tbe First District Court, parish of Orleans.

      Abell, J. 8. Belden, Attorney General, for the State.

      E. K. Washington and D. ilf. G. Hughes, for defendants and appellants.
   Howe, J.

The defendants in this case were found guilty of murder,, and sentenced to suffer the punishment of death, and have appealed.

Two points are made before ns, the first raised upon a motion in arrest of judgment, the second upon a hill of exceptions.

First — It is urged that the indictment charging the prisoners with the murder of “Ambrosio, whose first name is unknown,” is void fortín certainty and duplicity,” in that there is not a sufficiently legal. designation of tlio person alleged to have been killed. It is claimed by counsel that the description of the person killed is “repugnant, because Ambrosio in French or Spanish, in Latin Ambrosius, in English Ambrose, are as palpably first names as George Or John;” and they ask the question in their brief, “would an indictment stand describing a person alleged to have been murdered, merely as one George whose first name is unknown?” AVe presume, from the nature of the case, that the question is seriously asked, and we think it must be answered in the affirmative. AVe are not aware of any rule of law or philology which necessitates a negative reply. AVe lately decided the case of Elias George v. A. G. Tucker. In the Twenty-first Annual there are two cases in which the last name of each plaintiff is James. In the late war two prominent characters were Governor Andrew and General Thomas. In these, and a multitude of other examples which might be cited, what are often used as Christian names are used as. surnames. We do not think, therefore, that the phrase quoted from the indictment, “Ambrosio, whose first name is unknown,” is in itself inconsistent and self-destructive. Nor do we think the description, ‘atally insufficient. It is admitted by appellants’ counsel, on the-authority of Mr. Archbold, that while the name of the deceased person should be stated, if it be known, yet, “if not known, he may be described as a certain person to the jurors unknown.” A fortiori, it would seem plain that where one of the names of the person deceased is known, and the other is not, it will be sufficient to mention the-name that is known and the fact that the other is unknown.

Second — The bill of exceptions relied on was reserved to the charge of the judge in reference to the testimony of an accomplice. The charge, as stated by the judge, was, “that the witness charged as an accomplice was as any witness, but that his credibility was entirely with the jury: that if they believed the witness, it was competent for them to find a verdict on his testimony, but they were advised not-to do so unless his testimony was corroborated; but if they found the evidence given by the accomplice corroborated, it was to be dealt-with as other evidence, and that they were judges of both law and fact.”

AVe do not perceive any error in this charge, taken as a whole. It is frequently necessary for the State to make use of the testimony of an accomplice; and that such a witness is competent, can admit of no doubt. His credibility may be justly subject to suspicion, and of this question of credence the jury must judge under the time honored instruction that, while they may find a verdict of guilty upon this testimony without corroboration, yet they are advised not to. do so.

Judgment affirmed


author: Taliaferro, J.

text:
    No. 2148.
    William P. McLaren & Co. v. J. B. M. Kehler.
    Each State of the American Union, must give the same effect, within its limits, to the judicial decrees of every other State, which such decrees have in the State where they are rendered. Constitution of the United States, Art 4, Sec. 1.
    Therefore a judgment, final and conclusive in the State in which it was rendered, is final and conclusive in this State, and a judgment without effect in the State in which it was rendered, is without effect here.
    The courts of the State in which a judgment of a court of another State is sought to he enforced, have a right to inquire how far the judgment presented may be conclusive in the State in which it was rendered. And in determining this question the courts of this State will require that the whole record of the proceedings be produced under which the judgment was obtained, in order to show how far it maybe conclusive.
    If a judgment of the inferior jurisdiction of another State has been appealed, and the Supreme Court has pronounced a final judgment thereon, and the judgment or demand passed upon is sought to be enforced in this State, the record or proceedings of the Supreme Court, being the final judgment in the cause, is the proper transcript to present to enable the courts of this State to ascertain how far it is conclusive in the Stato where it was rendered.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. R. II. Marr, for plaintiff and appellee.

      JB. Wooldridge, for defendant and appellant.
   Taliaferro, J.

This is a suit to enforce a judgment rendered by the Circuit Court of the Second Judicial Circuit of the State of Wisconsin, sitting for the county of Milwaukee. By that judgment the defendant was condemned to pay the plaintiff the sum of $1445 59 and costs. The defense is, that at the time of the institution of the suit and the issuing of the summons therein, in the county of Milwaukee, State of Wisconsin, the defendant was not a resident of the State of Wisconsin, but was then, and had been long before a resident of the Stato of Louisiana, where he has constantly resided ever since, having established his domicile in the last named State prior to the issuing of the summons and the institution of the said suit. The defendant avers that no summons in that case was ever served upon him; that no appearance in Ms behalf was made by himself or by any person authorized by him. lie denies any indebtedness whatever to the plaintiff, and prays judgment in his favor. The court below rendered judgment in favor of the plaintiff, and the defendant has appealed.

The facts, as we find them in the record, seem to be, that suit was brought against the defendant in Milwaukee county, i n the State of Wisconsin, and that the citation was served at the residence of defendant’s father-in-law, in Racine county, by delivering a copy of the citation to the defendant’s wife; this service was made on the fourteenth of August, 18G5. This citation, it seems, was sent to Jenkins, who had long been the attorney at law of the defendant during his residence in Wisconsin. Jenkins was served with a copy of the petition on the twenty-second of September following, and on the eleventh of October obtained an extension of twenty days to answer. During this delay the attorney drew up an answer and mailed it to defendant at New Orleans. Jenkins states that he was informed by defendant that he never received the answer to be verified ; in consequence judgment was rendered against the defendant on the sixteenth of February, 1866. The suit to enforce the judgment in Louisiana was filed on the twenty-second of November, 1866, and judgment rendered on it on the fifteenth of February, 1869. Pending this suit in Louisiana, the defendant commenced an action in Wisconsin, for the purpose of opening the judgment there, in order to enable him to answer and set up the plea of change of domicile and want of ■citation. This proceeding was commenced in Milwaukee in February, 1867. Jenkins, the defendant’s attorney, upon his own affidavit of his ignorance of the defendant’s removal from Wisconsin and that his having appeared for defendant was predicated upon the belief that defendant was only temporarily absent and upon the defendant’s affidavit, obtained an order for opening the judgment to enable the defendant to answer. From this order of the Circuit ' Court the plaintiff appealed to the Supreme Court of Wisconsin, and obtained a reversal of the order. The final decree of that court, reversing the order of the Circuit Court, was returned and filed in the Circuit Court on the’seventeenth of January, 1868.

A duly certified copy of this decree was introduced in evidence on the trial of the case in the court below. Its introduction was objected to by the defendant on the ground that the filing of the record of the Supreme Court of Wisconsin, was a change in the nature of tlie demand. The evidence was properly admitted. The ground taken by .the defendant was, that the judgment sued on was not conclusive upon the defendant; evidence, therefore, to show that it was ■conclusive was fairly admissible.

The first section of the fourth article of the Constitution of the United States directs that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” A compliance with this provision of the supreme law requires that each State shall give the same effect within its own limits to the judicial decrees of every other State, which such decrees have in the States where they are rendered. Then it follows that a judgment, final and conclusive in one State, nurst be so in every other State. A judgment without effect in the State where it is rendered, is without effect in any other State. The courts of the State in which it is sought to enforce a judgment rendered in another State, have the right to inquire how far the judgment presented may bo conclusive in the State in which it was rendered. This doctrine has often been announced by this court. In the case of Hockaday v. Skeggs, 18 An. p. 682, the rule was repeated in these words: It has been settled by frequent decisions of this court, that in order to enable the courts of this State to give effect here to a judgment rendered in another State the whole record of the proceedings under which the judgment was obtained, must be produced in order to show how far it may be conclusive. The transcript must show that the proceedings are clothed with the forms necessary to the validity of a judgment in the State from which it comes. It must also show that the defendant had due notice, or that he actually appeared.”

The defendant aims to show that he had changed his domicile from Wisconsin to Lousiana at a time anterior to the institution of the suit against him in Wisconsin, and that he had no notice of the proceedings.

The testimony of several witnesses was taken under commission and introduced upon the trial. It is to some extent contradictory as to the last place of residence of the defendant in Wisconsin.

But a question of grave import here arises. We have seen that within two months from the date of the filing of the suit in Louisiana to enforce the Wisconsin judgment the defendant repaired to that State and set up the same defense there against the judgment which he used hero. I-Iis own affidavit and that of his attorney were introduced to sustain his pleas of want of domicile and want of citation. The Circuit Court did not vacate the judgment, but rendered this order: “It is ordered that the defendant have leave to file'his answer* on payment of ten dollars costs, and the judgment now entered remain-and abide the event.”- The appeal was taken from the whole order and it was reversed by the Appellate Court in January, 1868, more than one year before the rendition of the judgment against the defendant in the Louisiana court. It appears then that the grounds upon which the defendant depended in the Circuit Court of Wisconsin to set aside the judgment, were reversed by the Supreme Court of that State; the affidavits, we have referred to, were examined and jtassed upon by that court, and it decided that the defendant had received notice in the original proceeding, and was of opinion that he showed no case of surprise, mistake or excusable neglect, and nothing which could appeal to the discretion of the court below. It held that “it was an abuse of discretion to let him in to answer.”

If this judgment is conclusive against the defendant in Wisconsin, it is equally conclusive in Louisiana. The courts of this State are estopped from all inquiry into its correctness, and are precluded from considering the issues raised by the defendant, and which, by the judgment of the Supreme Court of Wisconsin, have become res judicata. We think the position of the defendant’s counsel in regard to the admission in evidence of the transcript of the decree of the Supreme Court of Wisconsin not well taken. The judgment of the Circuit Court, made final on appeal, was merged in that of the appellate tribunal. There-was at the time of the trial of this case in the Fifth District Court but the one judgment for the defendant to combat, and he.liad to oppose it in the character and force it had assumed by his own proceedings. We are of the opinion that the judgment of the lower court should be sustained.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.

Rehearing refused.


author: IIowell, J.

text:
    No. 2245.
    George Stewart v. Jane C. Boyle, wife of J. A. Robinson.
    The husband who joins with and authorizes tho wife to execute a mortgage on her paraphernal property for tho purpose of improving it, can not afterward, when the mortgage is sought to be onforced, sot up by way of defense, that tho property mortgaged was community property, and the wife was without the power or authority to encumber it. Having signed tbo mortgage himself, he can not bo permitted to deny or gainsay his own solemn act.
    In a suit by executory process to foreclose a mortgage executed by tho wife, on her separate property with tho authorization of her husband, tho authorization of the wife by tho lmshand to defend the proceedings is not necessary.
    APPEAL from the District Court, parish of Jefferson.

      Pardee, J. P. 0. Elliott, for idaintiff and appellee.

      PL. King Cutler, for defendants and appellants.
   IIowell, J.

On the twelfth of March, 1867, Mrs. Robinson, specially authorized and assisted by her husband, presented a petition to the judge of the district court for the parish of Jefferson, alleging that she had contracted with the plaintiif, George Stewart, to erect a residence on two certain lots in Carrollton, her separate property, and obtained an order authorizing her to grant a mortgage on her said paraphernal property to secure the payment of the sum of $2,200, amount of the said improvements, according to the act of 1855 on this subject. In pursuance whereof and duly aided and authorized by her said husband, slio appeared with him before a notary public and executed a mortgage on her said property to secure the payment of two notes, one for $1,276 90 and the other for $900, representing the amount she owed the plaintiff, who obtained an order of seizure and sale on the note for $1,276 90, and caused notice to he served on Mrs. Robinson j whereupon the husband and wife, jointly and individually, as alleged by them, enjoined the sale on many grounds, only two of which are urged before us, to wit: That the property mortgaged by the wife was acquired during marriage and belonged to tho community, there being no separation of property between the spouses, and hence the wife was without legal authority to encumber it, and that the wife was not authorized by her husband or the judge to defend the executory proceedings.

First — As the husband authorized and aided Ills wife to represent and mortgage the property in question, as her separate paraphernal property, he is concluded from denying it as to the parties to the act of mortgage, which is signed by him. This is an action not to protect the wife’s property, but that of the community which the husband authorized the wife to treat as her property and encumber it with a debt in order to improve it, and he can not deny his own solemn act.

Second — -There was no necessity for any authorization from the judge to defend the executory process. He had already given her authority to bind herself and execute an act importing a confession of judgment as a former sale, and all that was required was the notice which was served. There is no force in the other grounds for an injunction.

Judgment affirmed. •


author: Howe, J. Lddeling, C. J.,

text:
    No. 2281.
    Adele Gernon et als. v. David C. McCan.
    One who alleges extinguishment of his debt by payment, must prove it.
    Payment of a debt which is to be acquitted in money, may bo made by a third person not interested, C. 0.2160; Rig. 46, 3, 53; but this payment must bo tho deliberate and intentional act of this third person, for payment is not merely the delivery of a sum of money, but the performance of an obligation; an act calling for the exercise of the mil — of consent; without which it has not the characteristics of that mode of extinguishing obligations.
    "When, therefore, it appears as matter of fact, that a third person acted as agent, both for the makers of notes who desired an extension, and for a party who wished to purchaso them as an investment, and consented to the extension; and this agent paid the money, believing that he was purchasing the notos, and tho extension was accordingly made: Held— That the transaction would not be considered a payment, merely because tho person who • received the money imagined that he received it in payment.
    APPEAL from the Second District Court, parish of Orleans.

      Thomas, J. Semines Mott and Hays & Few, for plaintiffs and appellants.

      B. H. Marr, for defendant and appellee.
   Howe, J.

This suit was instituted by heirs of William Mish and Oliver Dubois to annul a judgment obtained against the executors of Dubois and the administratrix pro tempore of Mish by tlio defendant, McCan, on certain mortgage notes. It was contended by the plaintiffs that the notes had been paid and extinguished long before McCan brought his suit. This payment was denied by the defendant, who averred himself to be the owner and holder of the notes in good faith, for value, and before maturity.

There was judgment for defendant, dismissing the suit, and dissolving the injunction which the plaintiffs had obtained, with $2800 damages, and the plaintiffs have appealed;

The main question for our decision is, whether or not the notes in question were paid, and thus extinguished, as alleged by plaintiffs. There is no question of the validity of these obligations originally. They were given for borrowed money in 1859, and were secured by mortgage on valuable property on St. Charles street. They amounted in the aggregate to §28,000 and were to fall due March 18, 1862. It seems that about a month before their maturity, McClellan, the executor of Dubois, one of the-makers, and the agent of Mish, the other maker, finding that the notes could not be met when duo, sent the witness Yenni to Mr. Kruttschnitt, the agent of William Yogel, the owner of the notes, to negotiate for an extension. The agent agreed to extend, “at current rates,” which seem to have been ten per cent, per annum. McClellan sought to do better than this, and opened negotiations with Moore, a broker, who represented a party named Stone, who had money to invest and was willing to give time for payment at five percent. per annum. In his testimony Moore says:

Dubois and Mish wanted me to have the notes extended; they could not pay them at maturity; I went to the holders of the notes several times to find out about the rate at which they would be willing to extend them; I told the agent of Dubois and Mish that it would be eight per cent, for the extension, and they told me to see if I could not do any better. * * I made arrangements at five per cent, (for) two years; I acted as broker for McClellan; he had a power of attorney to act for them, (the makers), and before the notes were extended he had to bring his power to the notary.

I went to the holders of the notes and told them I had made better terms for Dubois and Mish, and would take the notes up in a few days, which I did, and had them extended before W. L. Poole, notary.

Question. Where did the money come from to take up the notes; whose money was it ?

Answer. It wras money of William Stone.

Q. That was the money you gave to Mr. Kruttschnitt ?

A. Before the notes were negotiated the trade was made with Stone in the-first place, but as he was going to leave, he made the arrangement with Major Hardy.

Q. But in the matter you acted as broker or intermediary of the parties ?

A. Yes, sir.

Q. How was the payment made; how did you get possession of the notes'?

A. I went to Mr. Kruttschnitt’s office and tendered the money. He told me he wished I would go to the bank and have it deposited, as he was not a very good judge of money. He asked me to go with his young man, and then he would know it was all right, if it wras put to his credit in the bank.

Q. And you did go and deposit the money to his credit ¶

A. Yes, sir.

Q. And then he gave you the notes ?

A. Tes, sir.

Q. And you gave the notes to Mr. Stone ?

A. I gave the notes to the party who made the negotiation in the meantime, to Major Henry.

Q. And this renewal was in pursuance of the original agreement under which you took up these notes ?

A. Tes, sir, I had possession of the notes all the time until they were extended.

The witness further says of the notes:

X bought them before the maturity. They wore extended by this act before Poole, and then there was this renewal of the eighteenth March, 1864, for two years.

lie then testifies to the further extension of the notes to March 18, 1867, by the defendant, McCan, who had bought them from witness’s firm for about their face value in lawful money.

The two notarial extensions are in evidence, and memoranda thereof are indorsed on the notes. The last extension is indorsed by a memorandum in the handwriting of a partner of Moore.

We do not understand that there is any dispute respecting the facts thus far stated, or any doubt of the truthfulness of the witness whose testimony we have quoted. •

On the part of plaintiffs, Kruttschnitt, the agent of Vogel, who was holder of the notes in the early part of March, 1862, testified.

Q. Were these notes ever paid to you, if so, when and where?

A. I got the money on the eleventh of March, (1862), I believe, from Mr. Moore; it was Confederate money. The notes were deposited in the Citizens’ Bank.

Q. Had there been any effort made to pay these notes while in the Citizens’ Bank?

A. I should think so from the fact that the person — I believe Mr. Moore or some one else — came to me and said he must withdraw the notes from the bank because the bank could not receive Confederate money without a written authorization.

Q. When the money was paid to you, did you make a sale of the notes to the person who paid the money; did you make a transfer of your rights to him, or did you deliver up the notes as to a person who was paying them?

A. I delivered them as to a person who was paying them.

■Q. Ton never sold the notes at all for Confederate money ?

A. Certainly not.

■Q- Did you want to receive payment in Confederate money ?

A. I took legal advice about receiving Confederate money, and the •opinion was, I could not be forced to receive it, and that if I instituted a law suit, I might recover in gold and silver. He (the lawyer) said: “ That is my advice as a lawyer; now I will give you my advice as a friend” — and that advice was to take Confederate money, because at that time it was very dangerous to refuse to take Confederate money. One of my personal friends was very nearly lynched for refusing to receive it. About a month or so before this I was applied to to renew those notes. There was no rate stipulated, but I told them I would renew the notes at the rates ranging in the market at the date of maturity. I gave my consent to renew the notes, but no rate was agreed on.”

It is not necessary to consider the effect of the use of Confederate money in this case, since the original consideration of the notes was lawful and valuable. 21 An. 513. -The main point relied upon by plaintiffs is that the notes were paid in March, 1882, and thus extinguished, and that they are entitled to the benefit of this fact, although neither they nor their ancestors nor their ancestors’ representatives have ever paid a farthing, and, despite the fact that the executors, agent and administratrix we have named, never made any such plea, but permitted the judgment sought to be annulled to be recovered without defense.

It is true that the payment of a debt which is to be acquitted in money, is permitted to be made by a third person, even one not interested. The right thus to pay is absolute; it may be exercised not only against the will of the creditor, but without the knowledge and •even against the opposition of the debtor; because on the one hand the creditor has no interest and consequently no right to refuse a regular and satisfactory payment, and it is a matter of indifference whence the money comes, and because, on the other hand, it is permitted to every one, by a kind of .“ fraternal .mandate,” to ameliorate the condition of another, even without his knowledge and against his will. Larombiere on Obligations, vol. 3, p. 66. Thus Gaius decided: “ Solvere pro ignorante et invito euique licet, cum sit jure civili constitutum lieere eliam iynorantis invitique meliorem conditionemfacere,” Dig. 46, 3, 53; and this rule of the Roman law has been continued in article 1236 •of the Code Napoleon and in the corresponding article 2130 of the Code of Louisiana.

But it seems equally clear that the payment thus permitted must be the deliberate and intentional act of the third person who makes it; that this provision of law is not meant to entrap the unwary; and that one who, like Stone or Henry, sends his broker to buy negotiable paper, shall not find that paper turning to ashes in his grasp, as by a sort of legal sorcery, simply because the person to whom he gives his money •erroneously imagines that the transaction is a payment, and not a purchase. In the case of Bloodworth v. Jacobs, 2 An. 26, this court said! in regard to payment: “It is not only the delivery of a sum of money, but tbe performance of an obligation. It is an act calling for tbe exercise of tbe will, of consent, without which it has not the characteristics of that mode of extinguishing obligations;” and we are satisfied that there was no such consent in the case at bar. We might even doubt if Kruttsehnitt was justified in forming the opinion of the nature of the transaction, which he expressed in his testimony. He knew the makers required indulgence and extension. He knew that Moore was a broker negotiating for an extension, and that he had made better terms with other parties than he (Kruttsehnitt) would grant. He had no reason to imagine that Moore delivered him the money “in the name and for the discharge of the debtors;” but he was aware that the money came before the maturity of the notes. Should it not have seemed strange to him that debtors who were praying and paying for an indulgence should be discharging the debt before maturity 1 Nor could he have easily imagined that at such a time Moore was a third person, acting in his own name, and volunteering to pay so large a debt from charitable motives, by a “fraternalmandate,” extinguishing the obligation, releasing the mortgage, and trusting for his reward, almost, to the doubtful security of an action ex wquo et bono. It is not unfair to remark that this opinion of Kruttsehnitt had but a small foundation.

The notes in question were given for a consideration of the highest character. The makers were unable to pay them at maturity and sought to obtain an extension, at first from the holder, but ultimately and more advantageously, by an equally common method, a purchase by some one who had mo'ney to invest in such securities and was therefore not only willing but anxious to give further indulgence. The extension was made accordingly.

We must conclude that the plaintiffs, on whom the onus rests, C. C. 2429, have not established payment and extinguishment with reason.able certainty. 16 An. p. 368; 18 An. 245.

It might be urged that if there was no payment for want of consent, neither was there any purchase and transfer for the same reason. But we apprehend that the plaintiffs can not be heard to say this. Tho notes, originally valid and still unpaid, are indorsed in blank and pass from hand to hand. Yogel does not claim them, and the plaintiffs do not contend that the possession and enforcement by McCan deprived them of any defense they might have had against any previous holder.

The amount of damages allowed was clearly proved. The defendant in answering the appeal has asked that they be increased, but we are not prepared to say that they should be. The plaintiffs urge that they ought not to have been allowed at all against the sureties, on tho ground that the act of 1855, providing for a judgment for damages and fees against the sureties of a plaintiff who enjoins the execution of a judgment, applies only where the judgment has been enjoined, on an allegation of compensation, set-off or payment, since the rendition of the judgment. Acts of 1855, p. 324. A different rule, however, seems to have been settled by repeated decisions o± this court. 13 L. 380; 2 An. 822, 874; 4 An. 188 ; 10 An. 419; 11 An. 91, 280, 697; 12 An. 181, 587; 14 An. 737; 15 An 52.

Judgment affirmed.

Rehearing refused.

Lddeling, C. J.,

Dissenting. 1 regret the necessity which forces me to dissent from the views of the court iu this case. And as the point of difference between us is as to whether or not there was a payment of the notes which are the subject of this litigation, I propose to recapitulate all the evidence on that point.

Mr. John Kruttschnitt, a witness for the plaintiff, having stated that he held the notes in question as the agent of Mr. Yogel, answered as follows: • ;

Question. Wore these notes ever paid to you, and if so, when and where ?

Answer. I got the money on the eleventh of March.

Q. From whom?

A. I believe from Mr. Moore.

Q. What sort of money was it?

A. It was Confederate money.

Q. That is, Confederate treasury notes, called Confederate money?

A. Yes, sir.

Q. Was there any effort made to pay these notes before; where were they?

A. The notes were deposited in the Citizens’ Bank?

Q. Had there been any effort made to pay these notes while in the Citizens’ Bank?

A. . I should think so from the fact that the person, I believe Mr. Moore, or some one else, came to me and said he must withdraw the notes from the bank, because the bank could not receive Confederate money without a written authorization.

■ Q. When the money was paid to you, did you make a sale of the notes to the person who paid the money; did you make a transfer of your rights to him, or did you deliver up the notes as to a person who was paying them ?

A. I deli\ ercd them as to a person who was paying them.

Q. You never sold the notos at all for Confederate money?

A. Certainly not.

Q. Did you want to receive payment in Confederate money?

A. I took legal advice about receiving Confederate money, and the opinion was, I could not be forced to receive it, and that if I instituted a suit, I might recover in gold and silver. He said, that is my advice as a lawyer; now I will give you my advice as a friend,” and that advice was to take Confederate money, because at that time it was very dangerous to refuse to take Confederate money. One of my personal friends was very nearly lynched for refusing to receive it.

Q. When was this payment of Confederate money made to you?

A. On the eleventh March, 1862.

Q. Had you'been applied to to renew those notes?

A. About a month or so before this I was applied to to renew those notes; there was no rate stipulated, but I told him I would renew the notes at the rates ranging in the market at the date of maturity. I gave my consent to renew the notes, but no rate was agreed upon.

Gross-examined — Q. When Mr. Moore called to see you aboui paying you the money, where were the notes ?

A. At the Citizens’ Bank for collection.

Q. Were they in a box at the Citizens’ Bank?

A. No, sir, they were for collection.

Q. Did not Mr. Moore, after going to the bank, come back and tell you that they could not get the notes, that they were in a box, and did you not send to the bank and get them out?

A. Whether Mr. Moore was at the bank or not, I don’t know, but wüen the gentleman came to my office, requesting me to take the notes out of the bank, because the bank would not receive Confederate money without an authorization to do so, then I sent to the bank and took them out.

Q. Was the money paid you for these notes handed to you personally or deposited at the bank?

A. It was handed to me personally at my office.

Q.' What did you do with the money ?

A. Deposited it in bank.

Q. Did you carry it personally to the bank and deposit it?

A. No, sir ; one of my clerks did.

Q. Then Mr. Moore gave you the money at your office, and you gave Mr. Moore the notes at your office, anil one of your clerks took the money and put it in the Citizens’ Bank; that is the history of the transaction ?

A- Yes, Sir.

Q. You are .certain you are not mistaken as to what occurred in that respect?

A. I think not.

Being shown the bank book of Mr. Vogel with the Citizens’Bank, witness states that on the eleventh March, 1862, there appears an entry in the book of a deposit of cash of $28,000.

-Q. Did you check out that money?

A. Yes, sir; not this very same day, howeves Q. But you checked it out and used it?

A. Yes, sir.

Q. Are you aware of the fact that Mr. Moore was at that time and had been, for some time previously, a broker in the city of New Orleans?

A. I believe I recollect he was a broker, although I believe he was not doing a general broker’s business.

Q. Well, you knew him as a broker, didn’t you?

A. I believe I did know him as a broker, but perhaps it is only that I know him as a broker now that makes me believe he was a broker then?

Robert Moore sworn and examined for the defendant answered as follows: ___

Q. Do you know anything about the four notes in controversy?

A. Yes, sir.

Q. What connection had you with these notes at any time, or what was the first connection you had with these notes ?

A. Dubois and Mish wanted me to have the notes extended; they could not pay them at maturity.

Q. What did you do in the matter?

A. I went to the holders of the notes several times to find out about the rate at which they would bo willing to extend them. I told the agents of Dubois and Mish that it would be eight per cent, for the extension, and they told me to see if I could not do any better.

Q. Which of the agents of Dubois and Mish did you deal with in that matter?

A, John J. C. McLellan.

Q. What subsequent arrangement did you make ?

A: .1 made an arrangement at five per cent

Q. For what length of time ?

A. Two years.

' Q. In what capacity did you act in that matter ?

A. I acted as broker for John McLellan.

Q. Do you know whether McLellan professed at that time to be the representative of Dubois and Mish, and, if so, in what capacity was he their representative ?

A. lie had a power of attorney to act for them, and before the notes were extended he had to bring his power to the notary. [

Q. What did you do afterwards? ;

■ A. I went to the holders of the notes and told them I had made , better terms for Dubois and Mish, and would take up the notes in a few days before they matured, which I did, and had them extended I before W. L. Poole, notary.

Q. Is tills document, marked B. C., a copy of the act by which the notes were extended?

A. It is, sir.

Q. Where did the money come from to take up these notes; whose money was it ?

A. It was money of William Stone.

Q. Was that the money you gave to Mr. Kruttschnitt?

A. Before the notes were negotiated the trade was made with Stone in the first place, but as he was going to leave he made the arrangement with Major Henry.

Q. But in the matter you acted as broker or intermediary for the parties ?

A. Yes, sir.

Q. How was the payment made; how did you get possession of the notes ?

A. I went to Mr. Kruttsclmitt’s office and tendered the money; he told me he wished I would go to the bank and have it deposited, as he was not a very good judge of money; he asked me to go with Ms young man and then he would know it was all right, if it was put to his credit in the bank.

Q. And did you go and deposit the money to his credit?

A. Yes, sir.

Q. And then he gave you the note ?

A. Yes, sir.

Q. And you gave the note to Mr. Stone?

A. I gave the note to the party who made the negotiation in the meantime, to Major Henry.

Q. And this renewal was in pursuance of the original agreement under which you took up these notes ?

A. Yes, sir; I had possession of the notes all the time, until the^ were extended.

Q. Was there any subsequent renewal of these notes ?

A. Yes, sir.

Q. What subsequent renewal was there .'

A. I bought them before their maturity; they were extended by this act before Poole, and then there was this renewal of the eighteenth March, 1864, for two years.

Q. Whore were these renewals made across the face of the notes"

A. They wer© made at the notary’s.

Q. When wer® they made; at the time they bear date ?

A. Yes, sir.

Q. How came Mr. McCan to become possessed of these notes ?

A. I sold them to him; he paid me in United States treasury 'notes. * * * I paid gold for the notes to Major Henry. * * *' Cross-examined — Q. Who is William Stone 9

A. He is a person who was with Mr. Tilton at the time.

Q. Where is he now 9

A At the North — at least, I believe he is dead; he has been dead four months.

Q. Who is Major Henry ?

A. He has a shoe house on Common street.

Q. What is the name of the firm 9

A. John Henry & Co.

Q. When did Stone part with the notes ?

A. He parted with the notes the very same time, made the profit on the notes at once, because Stone was not a man of any means.

Q. Were you interested in that yourself 9 Didn’t you advance the Confederate money 9

A. No, sir, I did not ?

Q. So the notes went into the hands of Major Henry the moment you got possession of them 9

A. Yes, sir. * * * * * * » *

Q. Was not Confederate money exceedingly abundant here in March and April, 18C2

A. It was.

Q. Everybody was seeking to get rid of it by way of investment ?

A. Yes, sir, and other currency j it was all on a par j we did not believe in currency much.

Q. These Confederate notes, did you have them at the office of Kruttschnitt when you tendered them 1

A. Yes, sir.

Q. You say you went to deposit the notes in the bank ?

A. He would not take them; he said he wanted them credited to him m the bank and then he knew they were all right. * * *

Q. How comes it that, if these notes were the property of Major Henry, the moment the transaction was closed, we find, on the twenty-first March, 1862, a notarial act by which the extension appears to be made between Stone (who seems to be a man of straw) and McClellan, agent of Dubois & Mish 9 Why didn’t Henry intervene in that act ?

A. Stone made his profit on the notes.

Q. That is true, but why was it that on the twenty-first of March, 1862, the extension appears to be in the name of Stone, and not in this name of Henry ?

A. It doesn’t make any difference about the extension ; the transaction was about three weeks in making; Henry wanted an investment and I said to him: “There is an investment about to be completed that you can place your money in.”

Q. When you went to Kruttschnitt, did you tell him you came to buy the notes from him. ? ■

A. He know I went there to have them extended and said the rate was eight per cent.; I went there twice to see him.

Q. At the instance of McClellan ?

A. Yes, sir. * * * * * * *

I can not resist the conviction that Moore, the agent of McClellan, the agent of the makers of the notes, first wont to Kruttschnitt to make terms about extending the notes, and that, subsequently, he wont to him as one authorized to take up the notes for the makers and “tendered payment” thereof; that Kruttschnitt, under a dread of public opinion and of the consequence of outraging- it by refusing to receive Confederate money in payment of a debt, received the money tendered as a payment and gave up the notes.

I do not deem it necessary to refer particularly to the contradictions, equivocations and evasions in the testimony of the witness, Moore; they are palpable. But even his testimony shows that the notes wero “taken up ” by him as'the agent of McClellan. He says he went to Kruttschnitt’s office to see him about making- terms for McClellan for the extension of the terms of payment of the notes ; that Kruttschnitt consented to extend the time ; that he returned, after some delay, to the holder of the notes and told him he had made better terms for Dubois & Mish and would take up the notes in a short time, and shortly afterwards he again went to Kruttschnitt’s office and “ tendered the money ” and received the notes. But if there wore any conflict between the testimony of this witness and that of Kruttschnitt, I think the latter witness’s testimony entitled to greater weight, for his liability is the same, whether the money were received in extinguishment of the obligation or as the price of a transfer, and his answers are direct, apparently truthful, more consistent with the conduct of rational business men and consequently more probably true.

It is certain Kruttschnitt did not sell the notes or transfer his rights to Moore or any one else; he thought he was delivering up the notes, as extinguished by the payment made by Moore. He certainly never dreamed of a sale for Confederate money at a time when that currency was abundant and everybody desired to get rid of it, for it was just before the capture of the city by the Federal forces. It is clear if Moore made the payment for McClellan, the agent of Dubois & Mish, the obligation was extinguished, with all its accessories. O. C. 2130; 5 R. 204; 7 N. S. 602; 11 R. 346; 10 An. 732; 11 An. 708; 13 An. 56.

If he paid it in his own name or in the name of Stone or Henry, is the consequence materially different, so far as the notes are concerned?

Article 2130 of the Civil Code declares that “the obligation may be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he acts in his own name, he bo not subrogated to the rights of the creditor.” There was no subrogation at the time of payment. An agreement to subrogate before payment or an actual subrogation after payment will not suffice. 11 An. 294, Willson v. Gardiner; 15 An. 400, Sewall v. Howard; C. C. 2156, 2157. The case of Holland v. Pierce resembles this case in many respects. That was a case by an indorsee against an indorser of a promissory note. It was drawn by ‘John F. Miller and made payable to the defendant; he indorsed it to the plaintiff, by whom it was transferred to the house of Hyde & Leeds, and by them it was discounted at the office of discount and deposit of the United States Bank.

“ The day it became due, at the hour the bank was closing, the plaintiff called and, giving the teller the amount of the note, received it from him. In the evening he handed it over to a notary public, who demanded payment from the maker, which was refused, and the note was accordingly protested. The explanation of this transaction, wliich the respective patties have made, differs very widely. * * * Which of these statements be true, it concerns not the court to inquire, as the legal rights of the parties must be settled on other considerations. * * * The inquiry by which this question is to be decided needs only be directed to one single fact — was the not&paid or-was it purchased ? If the latter, the holder had the same right as the person from whom he received it, and could, of course, on default of the maker to pay, have it dishonored. If the former, there could be no protest for non-payment, for the note was already paid. On this head the evidence is very satisfactory. The cashier of the bank tells us that the note here sued on had been discounted by the bank and was their property, that it has never sold it or disposed of any notes that have been discounted there, and that the note could not have been got out of the bank but by payment of it. Another officer of the bank swears it was paid and taken up by the plaintiff about three o’clock of the day on which it fell due.

“It results clearly from this testimony that the appellee did not purchase this note from the bank; that it was not negotiated to him, but delivered to him ,on his paying the amount. The payment, therefore, inured to the maker, and no matter from what motive it was made, the note could not afterwards be protested, for it was already honored and discharged.” 2 N. S. 500.

The judgment based upon notes which had been paid and extinguished should be annulled. Beauchamp v. McMieker, 7 N. S. 607; C. P. 607.


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    No. 2947.
    The State v. John S. Vandergraff.
    Xlie voluntary declarations of tlie accused, made "before the committing magistrate on a preliminary examination, and certified to "by him in the presence of two witnesses, in conformity with section 1010 of the Revised Statutes of 1870, cau not he offered in evidence or used on the trial before the jury by the accused. Declarations so taken are intended cnly to perpetuate for the use of the State such confessions as the accused may choose to make,
    APPEAL from the First District Court for the parish of Orleans.

      Abell, J. Simeon Belden, Attorney General, for the State.

      Given Campbell and JE. Morell, for defendant and appellant.
   Howe, J.

The defendant, having been found guilty of manslaughter, was sentenced to imprisonment at hard labor and has appealed.

The only point urged before us arises upon a bill of exceptions reserved to the refusal of tbe judge below to admit tbe voluntary declaration of tbe accused, made in accordance with the Statute before a committing magistrate, as testimony for tbe defense.

Tbe declaration in question, considered in tbo light of familiar rules of evidence, is certainly a singular document to be offered by tie defendant in a criminal cause.

In the first pi lace, it is made by the party in whose favor it is offered; in the second place, it is not made under the sanction of an oath; in the third place, it is made, in such a way as to deprive the State of any opportunity of cross-examination; in the fourth place, the State can not impeach the credibility of him who makes it.

The Statute, under which this paper was offered by the defendant, R. S. 1870, § 1010, provides, that it shall he the duty of the committing magistrate to receive the voluntary declaration of the person accused and the answers which, without promise or threat, he shall make to the questions which the examining magistrate shall put to him, and cause them to be reduced to writing and signed by the prisoner in his presence and that of two witnesses, or if he can not sign, to mention that circumstance and to certify the declaration with his signature and that of two witnesses, which declaration, thus certified and signed, shall be evidence” before tbe grand and petit juries.

It is contended by tlie appellant that tbe phrase “shall be evidence” means that the declaration shall be evidence for the prisoner as well as the State; but we can not assent to tills interpretation, which is not a necessary one, and is calculated to make the Statute repugnant to well established principles of criminal jurisprudence.

Referring again to the fundamental rules of evidence alluded to above, considering that tbo declaration is to be purely voluntary, without promise of reward or threat of punishment, and so witnessed and certified as to make it legally certain that it was thus made by tbe accused, and observing that it is permitted to be used as evidence before the grand jury, whose proceedings aré secret and ex parte, and before whom the prisoner is not permitted to be heard, we must conclude that the object of the Statute is simply to perpetuate for the use of the State such confessions or admissions as the accused may choose to make, in such way that they may be proved without calling the witnesses before whom they were made; thus substituting a convenient and permanent record of a confession for uncertain oral testimony in regard thereto ; that the phrase “ shall be evidence” does not necessarily imply, as understood, the words “for the prisoner;” and in fine that the Legislature, whose intent we are seeking, never intended by this provision to nullify the reasonable rules that a party shall not manufacture evidence in his own favor; that testimony shall be delivered under the sanction of an oath; and that the opposite party shall have the right to prove by cross-examination and impeach by evidence of bad character.

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


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    No. 2600.
    Sarah E. Doyal, wife, etc. v. Henry R. Doyal and others.
    Though the personal obligation of universal legatee, to pay a particular legacy is jomu, vneir hypothecary obligation is solidary.
    The legal mortgage in favor of particular legatees on the property of the succession, withheld by the universal legatees, must be recorded as against third persons, 22 An. 391, but it need, not be recorded -as against the universal légateos themselves. They are not “ third persons,” but “contracting-parties,” by quasi contract, resulting from their acceptance of a succession or universal legacy, subject to the payment of a particular legacy. C. C. (1825) 2314-15-16.
    Tliis legal mortgage In favor of particular legatees is a right distinct from the privilege resulting from tlie separation of patrimony; and therefore the article 3242 of the Code of 1825, which requires the privilege to be recorded within three months from the opening of the succession, does not apply to this mortgage, which may exist without record as long as the obligation to which it Is accessory. '
    APPEAL from the District Court, parish of Ascension.

      Bcauvcvis, J. Johnson & Denis, for plaintiff and appellee.

      JElmoi'e & King, for defendants and appellants.
   Howe, J.

The plaintiff instituted tins action against tlie defendants, the universal legatees of Henry Doyal, deceased, to recover a particular legacy of $10,000 bequeathed to her by the will of the latter. The court below gave judgement in her favor against the four defendants, respectively, each for the virile portion, $2500, with mortgage for the whole amount of $10,000 upon the immovables of the succession bequeathed to the defendants and withheld by them.

The defendants appealed. They admit the portion of the decree which gives tlie personal judgment to he correct, but complain of that part which recognizes the mortgage for the whole claim of plaintiff.

The appellee, in her answer, claims an amendment of the judgment m her favor, so that she may recover from one of the defendants, Henry R. Doyal, the full amount of the legacy, on the ground that, by the terms of the will, he is bound to discharge the same in full.

We do not think that, by the terms of the will, Henry R. Doyal is bound for any more tiran his virile share of one-fourth. The evident intention of the whole instrument was to make a perfect equality between the four children, defendants herein, and to have this particular legacy discharged out of the first crop of the Mount Houmasplantation, to be sure, if practicable ; but otherwise, and under other circumstances, like those which have since occurred, by the succession at large. We do not think, therefore, that the court erred in giving-the personal judgment against II. R. Doyal for one-fourtli only of the claim, being an amount “in proportion to the part that falls to him in the succession. C. C. [1626].

Nor do we think the court erred in decreeing the mortgage for the whole amount of $10,000 upon the immovables of the succession withheld by the defendants. The mortgage is established by the article already cited, which declares that the heirs of the testator, or the debtors of a legacy, shall be personally bound to discharge it, each in proportion to the part that falls to him in the succession; and that they shall be bound by mortgage/o?- ihe xohole to the amount of the value of the immovable property of the succession withheld by them. It is matter of legal history that this mortgage was established in the Roman law by the Code of Justinian, Law 1, Oommunia de Lcgaiis, etc.; that the question whether the hypothecary obligation could be any more extensive than the personal, was a subject of dispute among jurists iu France, Bacquet and Renusson maintaining- the affirmative, and Potheir the negative; that the Code Napoleon adopted the views of the former in iis article 1017; and that the Legislature of Louisiana have done the same in the similar article above quoted. Delvincourt,. vol. 2, p. 3G4, n. 3.

But it is contended by the appellants that the mortgage was not recorded at the time of the rendition of the judgment (May, 1863); that it had never in any way been recorded within three months from the opening’ of the succession, and that it had therefore boon lost, and they refer to the case of Ogle v. King, 22 An. 391, and to art. [3242] of the Civil Code. The case of Ogle v. King involved a contest between a particular legatee and a third person, a conventional mortgage of the heirs, and we held that the legal mortgage, established by article [1626], must be recorded as against this third person. But' the defendants in this case are not third persons. They are the contracting- parties themselves, by quasi contract, resulting from then-acceptance of a succession or universal legacy, subject to the payment of a particular legacy, and the mortgage, as to them, required no recording. C. C. [3314-15-1G]. The article [3242], which is mainly relied on, declares that creditors and legatees who demand a partition of the patrimony of the deceased, preserve their privilege as against the heirs or representatives of the deceased on the immovables of the succession only by recording the evidences of their claims against the succession within three months after it is opened, and that before the expiration of this time no mortgage can be enforced [established] against the property, nor any alienation be made by the heirs or representatives of the deceased to the injury of the creditors of the succession. It is urged that the mortgage of plaintiff has been lost because it was not inscribed within the three months.

But we apprehend that there is a wide difference in purpose and effect between the legal mortgage of article [1626] and the privilege of article [3242]. We have not been referred to any decisions of this court upon the question, but the French commentators on the corresponding articles, 1017 and 2111, C. N., recognize the distinction.

Duranton says: “ Legatees have, according to article 1017, a mortgage on the immovables of a succession ; and, besides, a privilege in virtue of article 2111. This mortgage is entirely independent of the effect of the separation of patrimony.” Yol. 19, 289.

Demolombe, commenting on article 1017, declares that it provides three actions — personal, real and hypothecary — and adds: “It will bo recollected that legatees have, besides, a fourth security in the right which belongs to them to demand a separation of patrimony.” Proceeding to notice the historical origin of this legal mortgage, he discusses its status in the French Code, combats the idea that it no longer exists, and that it is supplanted or impaired by the privilege mentioned in article 2111, and concludes: “The legal mortgage exists, then, still under óur Code for the benefit of legatees at the same time with the right which belongs to them to demand a separation of patrimony: * * * each has its peculiar advantages.” Vol. 21, pp. 266, 273.

Again, under the head of successions, vol. 17, No. 217, the same writer says: “Very different opinions have been expressed on the simultaneous existence in our Code of the legal mortgage of legatees in virtue of article 1017 and of the privilege of separation of patrimony in virtue of articles 2111 and 2113. One opinion, and a prominent one, has pretended that this mortgagors not a right distinct from that of tlie separation of patrimony, and that the hypothecary security of article 1017 has been swallowed up entirely in the theory of the separation of patrimony of articles 2111 and 2113. * * * * But we believe that the legal mortgage of legatees has lost nothing, and the separation of patrimon3>- has gained nothing, for the simple reason that there has been no fusion between them, and that they have not ceased to form two distinct rights.” Comp. Merlin, Rep. v. Separation, etc.; Troplong des Hypoth., vol. 2, No. 432, Ms; Toullier, vol. 7, No. 240.

“ The legatees have at once, in our view, a legal mortgage in virtue of article 1017, and the privilege of separation of patrimony in virtue of articles 2111 and 2113. Each, of these rights is sometimes more and sometimes less advantageous than the other. Thus, the separation of patrimony has over the legal mortgage this double advantage, that it assures a right of preference, not only on the immovables, but also on the movables; and that it secures a right of preference on the immovables with retroactive effect when the inscription is made within six [in Louisiana, three] months from the opening of tlie succession; while the legal mortgage, on the other hand, has this double advantage over the separation of patrimony, that it can be exercised even when the legatee has accepted the heir as a debtor, and that it enjoys the prerogative of indivisibility.”

We conclude that the action of separation of patrimony and the resulting privilege established by observing tlie formalities of article [3242], intended, as they were, to give the creditor or legatee of the deceased a right of preference on his property as against the creditors or vendees of the heirs, have no reference to the case at bar, and that the judgment ought not to be disturbed.

Judgment affirmed.


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    No. 2910

    Succession of Conrad Foster—Application of Claimants of the Estate for Account of Administration and to be put in possession.
    If a cause has been regularly set down on the docket for trial, and tlie plaintiff does not appear, either in person or by attorney, to plead Ms cause, tlie defendant may require that judgment of nonsuit be rendered against such, plaintiff with costs. C. 3?. 536.
    In such judgment the words 11 as of nonsuit” are not essential.
    APPEAL from the Second District Court, parish of Orleans.

      JDuvignaud, J. McQloin & Kleinpeter, for plaintiff and appellant.

      If. Commandeur, ior defendant and appellee.
   Taliaferro, J.

D. H. Voss and John D. Voss, alleging that they are the sole heirs of their late brother, J. Conrad Voss, deceased, who was generally called and known by the name of J. Conrad Foster, who died in the parish of Jefferson, Louisiana, in September, 1865, intestate, leaving no heirs in the ascending or descending line, institute this action against Anna Maria Ossing, late widow' of Conrad Foster and her present husband G-ogreve, to compel the filing of an aicount by Mrs. Gogreve of ber administration of tlie estate of Foster and to be put in possession thereof as his only heirs. The answer is a general denial. The defendant excepts that the attorneys who instituted the suit, were not authorized by the alleged claimants to bring this action. She avers that she is the sole heir of her late husband Conrad Foster, and as such, after having duly administered on his estate, I was put in possession of the same. She avers that, should the plaintiffs be recognized as heirs, she would still be entitled to the usufruct of the estate during her life. She prays that the plaintiffs’ pretensions be rejected and their suit dismissed.

It appears from the record that suit was originally brought by the plaintiffs against the defendant on the same cause of action in the district court of the Second Judicial District, but was discontinued by the plaintiffs and the present suit commenced in the Parish Court of Jefferson on the ninth of December, 1868. The case was fixed for trial on the twenty-ninth of April, 1869. In May following, the defendant, by counsel, filed an exception and motion to dismiss on the ground that upon discontinuing their suit in the district court, they had not paid the costs before bringing the present suit. The case was continued to the twenty-first of May, when the following order, dismissing the suit, was rendered: “This case, continued to this day, was called up. Plaintiffs not present, and not represented by their counsel, McGloin & Kleinpeter; present, N. Commandeur of counsel for defendant; and, on motion of N. Commandeur, of counsel for defendants, Mr. and Mrs. G-ogrevc, it is ordered that this suit be dismissed at plaintiffs’1 costs.”

A motion for a new trial was filed, the trial of which, it seems, was. fixed on the sixth of October. No action, it seems, was ever taken in regard to it. On the twenty-third of December the plaintiffs again brought suit against the defendant on the same cause of action, their petition being the same as in the second suit which was dismissed. The defendants again excepted as in the previous case, and, besides,, set up the plea of lis pendens. This exception was not tried, and no further action was taken in regard to it, so far as shown by the records.. On the thirteenth of June, 1870, the plaintiffs took this appeal from the judgment by which their second, suit was dismissed on the twenty-first of May, 1869.

The plaintiffs contend that if defendant was entitled to a judgment, against them, it was only a judgment of nonsuit, whereas the judgment, not expressing that it was so rendered, may be taken to imply a rejection of their demand, which might be fatal to their claims. We regard the judgment complained of as a judgment of nonsuit. Under the pleadings, the court could have rendered no other judgment. The action of the court was clearly predicated upon the provisions of article 536 of the Code of Practice, which directs that “if, after the cause has been set down on the docket for trial, the plaintiff does not appear, either in person or by attorney, to plead his cause, on the day fixed for trial, the defendant-may require that judgment of nonsuit b.c rendered against such plaintiff with costs.” It was not essential that the words, “ as of nonsuit,” should have been added.

It is therfore ordered, adjudged and decreed, that the judgment of the district court bo affirmed with costs. See the case Phillipe Allinet v. his Creditors, 15 An. 130.