text:
    No. 13,216.
    The State of Louisiana vs. August Johnson.
    Syllabus.
    1. Assignment of Heroes. — The defendant filed an assignment of errors as required by Article 897, C. P. There was Therein a question presented for the decision of the Supreme Court and which tile court, under repeated decisions, was not at liberty to decline taking into consideration and deciding.
    2. Want op Averment. — In an information for shooting with intent to kill and murder, the offense must be set forth in words ample, in case death had resulted, to cover essential averments of an indictment for murder. 38th Ann., 3S7.
    ON APPEAL from the Twenfy-Eirst Judicial District Court for the Parish of St. Charles. Host, J.

      31. J. Qunvingham, Attorney General, and Robert J. Pertains, District Attorney, for the Plaintiff and Appellee.

      H. N. Gautier for the Defendant and Appellant.
    Submitted on briefs June 12, 1899.
    Opinion handed down June 19, 1899.
   Tho opinion of the court was delivered by

Breaux, J.

The defendant was charged with having shot one Bill Jones with the felonious intent to kill and murder.

He was found guilty.

■ From the verdict of the jury and the sentence of the court condemning- him to suffer imprisonment at hard labor in the penitentiary for two years, he prosecutes this appeal.

Defendant was prosecuted under Section 191 of the Revised Statutes, which reads: “Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to commit murder, under any other circumstances than those mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor or otherwise for not less than one year or more than twenty-one years,” as amended by Statute 43 of 1890.

The information presented, and under which the accused was, by the jury, found guilty, sets forth the offense charged as follows:

“That one August Johnson did shoot one Bill Jones with the felonious intent to kill and murder him (the said Jones).”

The transcript contains no demurrer, motion to quash, motion in arrest or any bill of exception.

It appears that the accused did not have the assistance of counsel in his trial in the District Court.

An assignment of errors was filed on appeal, setting forth that the information is fatally defective, in that it fails to allege that the accused did feloniously and with malice aforethought, shoot and wound with intent, wilfully and with malice aforethought, to murder.

Counsel for accused sets forth in the assignment of errors, as we have just noted, and argues in the brief that the words “malice aforethought” are essential, and that the objection is properly before the court on the assignment of errors.

The State, on the other hand, insists that the defense was presented too late to bo considered, and that the proceedings cannot be reversed now.

1st. It is well settled, under the terms of the law and the authority of repeated decisions, that an appellant may allege an error of law by way of assignment of errors timely filed.

The defense having filed a separate assignment of errors in time, we feel bound to consider the grounds it presents.

In State vs. Forrest, 23rd Ann., 433, an appeal was taken, although no motion to quash the information had been made, and nq bill of exception taken. See also State vs. Henderson, 13 Ann., 490; State vs. O’Connor, 13 Ann., 486.

In State vs. Hanks, 38th Ann., the court decided that either party may refer on appeal to any error apparent on the face of the papers. A number of decisions is cited in support of that view.

A similar conclusion was announced in the case of State vs. Bazile, 38th Ann., 545.

The article of the Code of Practice is in itself plain enough; in addition the effect given to the article by the decision cited supra, leaves no ground for discussion, and, in consequence, nothing remains to be done, save to pass, on the merits of the question presented.

2nd.. We have seen that the information does not contain tlie averment that the deed was committed with malice aforethought. It is well settled where a statute has adopted the Common Law offense and incorporated it into our laws, it is necessary in the indictment or information to make use of the words which technically charge the offense at common law. State vs. McClanahan, 9th Ann., 210.

For this reason doubtless and for the reason that Section 1048 of the Revised Statutes (regarding the form of indictment for murder, the crime the State charges the defendant attempted to commit), requires that in every indictment for murder the State shall set forth that the defendant did feloniously, wilfully and of his malice aforethought, etc.; the court heretofore decided in several eases that the words before mentioned are essential to a valid indictment or information.

If the question were res nova it may be that we would arrive at a different conclusion, for we are not inclined to restrict the scope of the decisions holding that where a crime is statutory, it is not necessary to make use of the words which technically charge the offense at common law. In other words, that it is enough to charge the offense in the statutory words, or words of similar import. State vs. Flint, 33rd Ann., 1288.

We reiterate that opinion is announced in a number of decisions.

But as relates to the case in hand, the decisions to which we before alluded, clearly announce that it is necessary to make use of the words already mentioned.

In State vs. Scott, 36th Ann., 387, the defendant was indicted under the same law under which the accused here is prosecuted. Revised Statutes, Section 791. The indictment expressly charged that the defendant “feloniously did shoot with a dangerous weapon, with intent to commit murder.” The court none the less concluded that the indictment was defective in not charging that the shooting was done wilfully and with malice aforethought.

The case of State vs. Bradford, 33rd Ann., 921, throws light upon the subject, although in that case the sentence was affirmed, as the information contained the essential averments.

The question arose in State vs. Green, 36 Ann., 99, in which the court held, as indicated by the syllabus:

“In an indictment for shooting with intent to commit murder, the intent must be described in terms which would be sufficient, in ease the act had resulted in death, to sustain an indictment for murder.

“The qualification of the intent as ‘felonious’ merely, without the addition of ‘wilfully and of malice aforethought,’ describes only an intent to commit manslaughter and not murder.”

The words needful in denouncing murder are, the court holds in the cited cases supra, also needful in denouncing the attempt to commit murder, in order to distinguish the latter offense from one charging the accused with the intent to kill.

With reference to the crime of murder, we find in 2 Hale Pleas of the Crown, 187: “Although murdravit 'be in the indictment, yet, if it wants the words ex malitia sua praecogitata the party shall have his clergy.”

The omission of the words “with malice aforethought,” are as fatal in information charging the intent to commit murder as it is in an indictment for murder.

“Without the words ‘malice aforethought,’ and the artificial phrase hnurder,’ the indictment will be taken to charge manslaughter only,” 1st Chitty’s Criminal Law, 243; and it follows that without the words “malice aforethought ” the information will be taken to charge intent to kill only. Courts are not at liberty lightly to set aside the requirements in pleadings. The interpretation of a statute becomes of as much importance as the statute itself, and therefore should not be changed unless the reason is irresistible. We could not do otherwise than' notice the fatal objection, under our jurisprudence, to the indictment.

We quote the following, as applying:

“As to the emphatic verdict of the jury, although upon an indictment technically insufficient', it affords the strongest presumption that the person is guilty” — and as in legal contemplation, he has not yet been in jeopardy of life or limb on that account, it becomes our duty .as conservators of the peace, to guard against bis escape from justice, -so far as it is possible for us to do.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided -and reversed. It is further or- • dered, adjudged and decreed, that the judgment against August Johnson upon the information presented, a copy of which is of record on .appeal, be arrested, and that the verdict of the jury be set aside, and •the defendant be remanded in custody, subject to the orders of the District Court of the Parish of St. Gharles.


source: Caselaw Access Project

author: Breaux, J. Watkins, J.

license: Public Domain

text:
    No. 13,160.
    L. M. Valdetero vs. Citizen's Bank of Jennings.
    Syllabus.
    1. Cashier Personally and Bank Responsible. — While the cashier, it is true, does not represent his bank away from its domicil, by continuing the act undertaken while away, after his return, without objection on the part of the directors, if the latter sanction completing the act, it becomes the act of the bank.
    2. Issuing Check. — A check issued by the bank should not be countermanded as to its payment, without cause.
    3. Consideration for an Advance or Money. — A loan promised by a cashier, personally and as cashier, to enable one to go in search of the bank’s president, who is sick in body and mind, and has disappeared, has consideration enough to hold the bank for the promise of its cashier, for which loan the latter issued a check, and, without cause’ shown, stopped payment without proof enough of any cause for stopping it, after the one who went in search had left, and was performing his part of the agreement.
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Read, J.

      Bchiving & Moore, and Fournei & Fournei for the Plaintiff and Appellee.

      Gline & Qline and Pujo & Moss for the Defendant and Appellant.
    Argued and submitted May 3, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused, (reasons assigned), June 29, 1899.
   On the application for rehearing by Watkins, J.

The opinion of tlie court was delivered by

Breaux, J.

Plaintiff sued for damages in the sum of ten thousand dollars, claimed as having grown out of the defendants’ refusal to honor a check drawn by tho former on the Citizens’ Bank of Jennings.

It appears that plaintiff left his home, in Jennings, and repaired to New Orleans, in search of Doctor E. II. Burke. Plaintiff learned while he was in New Orleans that the missing Doctor Burke was in Tampa, Florida. The doctor was a very sick man, both in body and mind. Plaintiff was his friend and the friend of the family. He had been in his employ for many years, and their business relations were close.

The defendant, Hoffman, also concerned about the absence of Dr, Burke, came to New Orleans, and met plantiff. He (Hoffman) was cashier of the Citizens’ Bank of Jennings, and the missing Dr. Burke was its president. Hoffman, particularly, was put out by the disappearance of the president, whom he charged with having taken funds to which lie had no right. After some talk over the situation, the defendant Iloffman, in the presence of Dr. Burke’s wife, who was m New Orleans, and who testified in the case as a witness, induced plaintiff to go to Florida and bring back Dr. Burke. He (Hoffman) promised Yaldetero as an inducement, that he would honor the latter’s check on the Citizens’ Bank for the sum of three hundred dollars in favor of L. N. Brunswig & Co., merchants in New Orleans, whereupon, plaintiff drew his check in favor of Brunswig & Co., and left for Florida. During his absence, the check was not honored, and the defendant cashier, Hoffman, failed to carry out his promise. He returned plaintiff’s check to Brunswig & Co., and directed them to draw a draft on plaintiff for three hundred dollars and forward it to him (Hoffman) at Jennings; that he would then remit for it, by New Orleans exchange. The draft was drawn by Brunswig & Co., and forwarded to the bank. Upon its receipt, the bank issued a check signed by the cashier on the State National Bank of New Orleans, which was mailed to Brunswig & Go., but, before it could be presented and paid, payment was stopped by Hoffman. In explanation of his actions in thus refusing to pay the check, Hoffman wrote to Brunswig '■ & Go., charging plaintiff with having made false representations, and' haring- drawn without authority on the bank at Jennings in which he had no funds.

Defendants, in answer to plaintiff’s petition, pleaded the general denial, and Iioffman, in the same answer, pleaded that he did not seek to injure the defendant. That at the time that plaintiff alleged that authority was given to him to draw on the Citizens’ Bank, he (plaintiff) and Mrs. Burke, the president’s wife, as well as respondent, Hoffman, were in the city of New Orleans, searching for Dr. Burke, who was largely indebted to the bank, of which he was president, having. without the knowledge of the bank’s cashier, or other officers, drawn from the vaults of the bank and failed to charge himself with the sum of fifteen hundred dollars, and that he (the cashier) had reason to believe that he still had the amount in his possession; and that he was in the City of New Orleans, and that he had determined to liare him arrrested.

Here, at that meeting, ho was informed by the plaintiff that Dr. Burke was not in New Orleans, but in Florida, and plaintiff said he was willing' to go to Tampa, Florida, and bring' him back, but he had no funds, whereupon, defendant Hoffman, avers that he promised to pay the traveling expenses of plaintiff in going in quest of Dr. Burke, which expenses he did not believe, at the time, would exceed one hundred dollars.

He, also, avers, that plaintiff was not authorized by him to draw •on the Citizens’ Bank for any sum other than the sum needful to bring back Dr. Burke; that after the check was presented to tiie bank at Jennings for payment, ho (Hoffman) returned it, and sent a form •of draft to Brunswig- & Co., to be signed; it was drawn in favor of the Citizens’ Bank of Jennings, on plaintiff; that this form was filled in due course of business; that he honored it by issuing a check of his bank on the State National Bank; but before it was presented to the drawee for payment at New Orleans, he learned that two hundred dollars of the amount was to be used to pay an indebtedness of Dr. Burke to L. N. Brunswig & Co., and for that reason, he, at once, dispatched to the bank and to Brunswig & Co., stopping the payment of the draft.

The ownership of a drug store also figures in this case, and gives rise t<? incidental issues of the case.

The question, as relates to the drug store, was, whether defendant, Hoffman, knew or did not know that the store was owned by the -plaintiff.

Dr. Burke fell sick in Florida, and died a few days after.

The chief issue of fact is, whether defendant, Hoffman, promised in the name of the bank, to pay the check, as alleged by plaintiff, and whether he is, also, personally bound.

Plaintiff swore that he informed defendant, Hoffman, that he could not leave for Florida, unless his indebtedness to Brunswig & Co., of two hundred dollars, was taken care of by some one, as it would mature during his absence. He, in addition, said to him, that he would need one hundred dollars for his expenses; making the three hundred dollars, for which he requested a check, which he says defendant promised to honor. He swore positively that he informed defendant Hoffman of his indebtedness to Brunswig & Co., and it was only after he had been thoroughly informed that Hoffmaji promised to cash the check.

The testimony of plaintiff on this point, is corroborated by the wife of Dr. Burke, who was present, and said she heard the conversation.

This was denied by defendant.

The case was tried before a jury, and a verdict of $115.00 was found in favor of the plaintiff.

From the verdict and the judgment of the court, the defendant prosecutes this appeal.

We, in the first place, take up for decision the question relating to Hoffman’s personal liability vel non.

The record discloses that he had a direct interest in the return of Dr. Burke, or, at any rate, he felt that certain interests in which he was concerned, would be subserved by his return. He was particularly anxious regarding his return to Jennings, and quite willing to expend an amount to find out where he was, and make his corning back certain. When informed by plaintiff ns to his whereabouts, he was quite willing to advance to plaintiff the expenses of the trip to Tampa, to enable him to go in search of Dr. Burke.

The defendant does not deny that he promised to make the advances for the trip to Florida, but says that he had no idea that the amount needed would be more than one hundred dollars.

The verbal testimony, other than his own, and the letters, render it certain, we think, that he was to see to the cashing of a draft or check for the sum of three hundred dollars, as alleged by plaintiff.

It is evident, we think, that the defendant changed his mind after his return from New Orleans to Jennings, and for some reason, con-eluded that the return of Dr. Burke was not consideration enough to justify him in paying the loan, of three hundred dollars, promised.

He adhered to his promise to make the advance, sufficiently after his return, to write to Bunswig & Oo., and to change the names on their check, as before stated, and after their answer, to send a check — ■ the payment of which he subsequently stopped.

The first change made as to the form of the check and the order not to pay the last check, as well as defendant’s letters regarding plaintiff, and his want of authority to draw a check as he did, were enough to annoy and cause worry to any business man regarding his credit, and we are decidedly of the opinion that plaintiff had cause to complain.

The agreement between plaintiff and this defendant was complete, and the former was on his way to Florida to perform his part of the agreement. It was entirely too late to recall the promise. So far as the record discloses, the plaintiff complied with his obligation.

At the risk of loss, one who has promised to cash a check under the Urcumstanees here, cannot escape the responsibility by shifting his position, and contending in the face of positive evidence to the contrary, that the amount was to be used for another purpose than that for which most of it had been used. A deliberate charge against one that he has drawn a negotiable instrument without authority, when it is evident that he was fully authorized, gives ground for complaint, and, in such a case, as the one before us for decision, for damages.

Wo have noted the fact that the suit was brought against the defendant, Hoffman, and against the Citizens’ Bank in 'lolidn, The theory upon which the latter was made a party was, that it had acted through Hoffman, its cashier, and that his utterances and acts bound the bank.

Ordinarily, they would not. This cashier was at some distance from the bank’s place of business, and the presumption is, that away from the bank as he was, he was not acting under the supervision, direction and control of the board of directors. The agreement entered into between Hoffman and plaintiff, in the city of New Orleans, of itself would not be binding on the bank, in our judgment. Cashiers, unless authorized, do not take with them from place to place the agency they have at the bank, but this cashier returned to his home in Jennings, and there resumed the functions of cashier, with all its responsibilities. He continued in some respects, at least, to do ¡that which he had hound himself to do, without authority perhaps, while away from the bank.

In. order to meet the payment of the three hundred dollars, and to complete the advances as promised, he, as cashier, sent the hank’s ■check, payment of which lie afterward countermanded. This act was the act of the bank and no one else. The cashier is the directing agent ■of the bank in its actual management. He speaks for the bank, and is usually its executive officer in all things not especially entrusted to the directors. “He is the general manager, and, unless his operations are restricted by the directors, he is, for many’purposes, looked upon by law and ho is treated as if he was the whole body, whom he has power to bind, even by his tortious acts.” Grant on Banking, 518.

It was at the bank’s counter that the cashier issued the cheek. It is reasonable to presume that his act met with the approval of the board of directors, and that proper registry and entries went into their books with their sanction.

All this was done by the cashier, without one word of objection from the directors.

Plaintiff and others concerned had the right'to suppose that they were dealing with the bank that liad made the act of its cashier, while .absent, its own, after his return.

It must be borne in mind that Dr. Burko was the president of the hank, and that' the money advanced was to enable plaintiff to go in search of the president, who was a debtor to the bank, and in whose return the bank also, it may be, had some interest, and for whom .the board of directors must have had some concern.

The loan to plaintiff, or rather, the promised loan, by cashing his ■check, as before stated, was not out of the usual course of business. He was the owner of a drug store in Jennings, and had done some business with the bank. True, his name, for reasons the evidence seeks to explain, did not figure in public as the owner, but it was well known to a few, that he was the real owner, and not Dr. Burke, whose name appeared as the owner. Knowledge of this fact was traced to some of the officers of the bank, who, plaintiff contends, had full knowledge of his ownership. True, this drug store had but little value, yet enough to give a limited standing' to plaintiff as a merchant. It was not extraordinary, under the circumstances, if, as we think, the hank gave its approval to the cashier’s acts, as alleged. N o attempt, as we take it, was made to recall this apxn'oval — defendants joined in one answer — save at tlie last moments before trial, the defendants filed a peremptory exception of no right of action, on the ground, “if the draft was drawn, as averred by plaintiff, then in that event exceptor avers that the said Hoffman was acting beyond the scope of his authority, and was not authorized to bind the bank.”

For the purpose of its trial the averments of fact of plaintiff must be taken as true. Wo think that they do show that defendant was acting within the scope of his authority after his return to his place of duty, and that th'e evidence does not, as relates to the exception, negative the allegations of plaintiff’s petition, but, on the contrary, that his acts, as cashier, conformed with the views of the board.

The jury fixed the damages at one hundred and seventy-five dollars.

They were of the vicinage, probably knew the parties, and are particularly competent to determine the amount of damages in such ease-

The judgment is affirmed.

On Application for Rehearing.

Watkins, J.

Plaintiff prays for judgment against the Citizens’ Rank of Jennings and John H. Hoffman in solido, for the sum of $10,000; the case was tried by a jury, who rendered a verdict in favor ■of the plaintiff and against the defendants for $175.00.

From this judgment, both defendants prosecute an appeal.

In this court the appellee filed an answer and prayed for an increase in the allowance, to the sum of $2,000.00.

An examination of the case led this court to believe that the verdict and judgment were right, and it, accordingly, affirmed the same.

Defendants’ application for rehearing consists in a typewritten brief, in which counsel purport to review the evidence; and a careful examination of same discloses nothing new or additional to the argument originally made.

The application chiefly rests upon the two following questions:

“First: Can a person who is cashier of a bank, transact business in his own name and for himself, without making the bank responsible?”

“Second: Can he do this as an individual through himself, as •cashier, or through the assistant cashier, without making the bank ¡responsible for his personal acts?”

These tu’o questions may be answered in the negative, for the reasons assigned in the case of Richardson, Receiver vs. Watson, recently decided, 51 Ann., and Seixas vs. Citizens’ Bank, 38 Ann., 484, which is therein referred to.

■ In our opinion, it would he a dangerous doctrine to announce that any transaction carried on by a cashier necessarily resulted in making the bank responsible, whether the officers and directors of the bank were aware of it or not; and it would be still more dangerous to extend the bank’s responsibility to any act of an assistant cashier.

Banks are established for public convenience, and in the interest of the business community, and do business in pursuance of well known and well established rules; and no officer or employee of a bank has any right to deal with its funds, or negotiate transactions m their name, unless in pursuance of those rules, and with full knowledge of all other officers of the bank who are entitled to information.

The cause of action grows out of defendants’ refusal to honor a check drawn by the plaintiff on the defendant bank — defendant, Hoffman, being the cashier of the defendant bank. It appears that one Dr. Burke was president of the bank, and had left home and gone to Florida on account of his being “a very sick man, both in body and mind.”

Tho plaintiff was his friend and a friend of his family, and had been in his employ for many years, and their business relations were intimate. He was very anxious as to the whereabouts and condition of Dr. Burke.

This anxiety resulted in search being made for Dr. Burke. It appears from the evidence, that Hoffman induced the plaintiff to go to Florida and bring back Dr. Burke; and promised him as an inducement, that he would honor the latter’s check on the defendant bank for the sum of $300.00, in favor of L. N. Brunswig & Co.

Thereupon, plaintiff drew the check and left for Florida; but during his absence the check was dishonored, and the cashier, Hoffman, failed to carry out his promise, and returned the cheek to Brunswig & Co., unpaid — directing them to draw a draft on plaintiff for $300.00, and' forward it to him, and that he would remit the exchange.

The draft was drawn, forwarded to the bank, and a check issued by the cashier on the State National Bank of New Orleans, and same-was mailed to Brunswig & Co.

Immediately afterwards, same was countermanded, and payment-stopped by Hoffman.

The latter assigned to Brunswig & Co., his reason for so doing, to be, that plaintiff had made false representations to him, and had drawn on the defendant hank without authority — he having no funds at his credit.

The defense of Hoffman is, that after consenting to give plaintiff a check to aid in bearing his expense to Florida, “he learned that two-hundred dollars of the amount was to be used to pay an indebtedness of Dr. Burke to L. N. Brunswig & Go.,” Dr. Burke being alleged to have overdrawn his account with the bank to the extent of $1500.00. -

The determinative question in the case was, whether “Hoffman, promised in the name of the bank, to pay the check as alleged by plaintiff ?”

We are satisfied from an examination of the record, as well as from-the statement of the case, that both of the defendants had an interest in the return of Dr. Burke, the president of the bank.

It seems that Dr. Burke fell sick in Florida, and died a few daysafterwards.

Our opinion holds, and our present examination of the record confirms the statement, that “the agreement between plaintiff and this defendant was complete, and the former was on his way to Florida-to perform his part of the agreement.”

“It was certainly too late to recall the promise” — the plaintiff having complied fully with his obligation.

Under these circumstances, we think both defendants are liable; and oirr opinion so holds.

In issuing the check of the bank and countermanding the payment of same, Hoffman acted for the bank, and in the interest of the hank, as well as his own.

This entire matter appertains to a transaction of the bank. The interest of the bank was to be subserved by the reátitution of Dr. Burke ,who had largely overdrawn his personal account therewith; and the cashier was evidently seeking to further the interest of .the hank. by making the arrangement he proposed to the plaintiff, and by issuing the check in conformity therewith.

On this state of facts, plaintiff acted in undertaking the search- for the restitution of Dr, Burke, and evidently at some expense; and this provision was evidently intended to place him in funds to discharge the same.

Our opinion says: “The loan to plaintiff, or rather the promised! loan by cashing his check as before stated, was not out of the usual course of business.”

It further says: “It was not extraordinary, under the circumstances, if, as we think, the hank gave its approval to the cashier’s acts as alleged. No attempt, as we take it, was made to recall this approval.”

We have examined the opinion and evidence, and find no reason to ■change our view.

The case being one in damages and tried by a jury of the vicinage, and an application for rehearing made and overruled, and said judgment having been affirmed by this court by the unanimous voice of its judges, it would require a much more extremo case than that which is stated on tho apj)lication for rehearing, to induce this court to render a different decree — the amount allowed being comparatively insignificant in comparison with the amount claimed, and the prominence of the parties to this litigation.

For this reason, the rehearing is refused.


text:
    No. 13,200.
    Jules Petetin vs. His Creditors; ex rel H. and C. Newman vs. Jules Petetin, Syndic, Tutor, etc. Certified from the Court of Appeals, Third Circuit, by the Judges Thereof Applying for Instructions.
    Syllabus.
    1st. Wife a Creditor. — A wile, donee of her husband’s creditor, may by the effects of the donation, become the creditor of her husband.
    2nd. A Sale of Husband to Wife. — The wife had no mortgage, and could havo no preference over her husbands creditors. The sale to her in satisfaction of her claim as a creditor, was not void, bnt voidable.
    .3rd. Prescription. — Being voidable, it was subject to prescription.
    4th. Minor.. — Prescription runs in favor of a minor, though he is not represented by a tutor.
    The rule is that an interruption begins only when brought home to the parties affected by it.
    .5th. Owner’s Title by Prescription. — The time having elapsed, the owners acquired by prescription.

      E. D. EslileMe for Jules Petetin.

      Kenneth Baillio for II. and C. Newmap.
    Submitted May 12th, 1899.
    Opinion handed down May 29th, 1899.
    Rehearing refused June 29th, 1899. (Reasons assigned.)
   The opinion of the court on the application for rehearing was delivered by Watxujs'S, J.

The opinion of the court was delivered by

Breaux, J.

The firm of II. & 0. Newman, who are creditors of Jules Petetin, attack a dation en paiement made by him to his wife, on the following grounds:

1st. That the dation en paiement has no consideration, being a debt of the husband, which the creditor of Jules Petetin donated to his wife, Mrs. Petetin.

2nd. That the subsequent transfer or dation by the husband to his wife, in satisfaction of the debt, was a prohibited preference shown by the husband, who was an insolvent; that the facts are, that on the 3rd day of May, 1895, Ilermina Petetin, maiden sister of Jules Petetin, made a donation inter vivos to Cora Renaud, wife of Jules Petetin, of a debt due by J ules Petetin to her.

It appears, May 13th, 1895, Jules Petetin made a dation en paiement ' to his wife of property he owned, (valued at the amount put down as a consideration for the dation), in satisfaction of the indebtedness held by the wife.

October 25, 1895, Jules Petetin made a cession of his property to his creditors. The usual order was issued accepting the surrender and staying proceedings against the insolvent.

The insolvent acknowledged the amount of his indebtedness to H. and 0. Newman, and carried their claim on his statement of indebtedness.

The insolvent did not carry, on his statement of assets, the real estate transferred to his wife, on May 13, 1895.

A meeting of the insolvent’s creditors was held on December 9th, 1895, at which H. and 0. Newman voted against accepting the cession; against the discharge of the insolvent, and against the appointment of a syndic.

The proceedings were homologated on December 24th, 1885, without opposition.

Jules Petetin, the insolvent, qualified as syndic on December 30th, 1895.

On December 31st, 1895, H. and 0. Newman filed their present suit.

Mrs. Jules Petetin having died and left minor children, issue of her marriage with Jules Petetin, he was appointed tutor ad hoc, to represent them. He qualified as tutor ad hoc on September 19, 1896.

Jules Petetin, personally, and as syndic, accepted service of the petition of IT. and 0. Newman, on the 2nd day of January, 1897.

It is conceded that the dation en paiement was a real contract, in the sense of not being simulated, and that Mrs. Petetin took possession of the property transferred to her, and that after her death, her heirs went into possession.

IT. and 0. Newman claimed to be paid by preference over the other creditors of the insolvent in case of the annulhnent of the dation en paiement.

The record informs us that the trial judge pronounced judgment annulling the dation en paiement. He decided, also, that the property should be restored to the mass of the insolvent's estate for the benefit of all the creditors, but that IT. and C. Newman should be paid by preference from the proceeds of the property.

From the judgment, Jules Petetin, syndic, appealed to the Court of Appeals. ‘The plea óf pvesciption was filed on appeal before the Circuit Court.

The plea of prescription was rejected by the court, the court finding that service of the petition of II. and C. Newman had been accepted on the 2nd day of June, 1896, ánd that the dation was made on the 13th day of May, 1895, within the year. This was manifestly an oversight of the Court of Appeals.

The court found in the second place, that, after cession, no creditor can obtain a preference; that the wife is entitled to recover the amount of -her claim as an ordinary creditor; and it amended the judgment to some extent.

On the application for a rehearing, the court reversed its opinion, and held that the wife and the heirs could interpose prescription. Owing to an error of dates of filing suits, and of acceptance of service, growing out of some oversight in listing the documents submitted on appeal, the court deemed it proper to grant a rehearing.

After the rehearing was granted, the court sent up to this court a statement of facts made by counsel and certified to by the court as correct; and requested our opinion on the following questions:

1st. Was Mrs. Petetin an ordinary creditor, without privilege?

2nd. Had the husband the right to transfer his property to his wife in satisfaction of his debt to a third person, of which the wife became the transferee and donee?

3rd. Can the creditors, H. and 0. Newman, attack the dation for fraud, and if successful, are they entitled to preference ?

4th. What prescription is applicable?

5th. Had H. and 0. Newman the preference over the proceeds of the property, under 0. 0., 1977?

1st. Primarily, we deem it proper to state in answer to the foregoing that, in our view, Jules Petetin was indebted to his wife in the amount of the claim, of which his wife became the donee of one of her husband’s creditors.

This claim was one in commerce. Whatever value it had, the creditor chose to make a donation of it to the wife of the debtor, who was a free agent and able to accept donation to her, even of debts due by the husband.

In our view, she unquestionably was capable of receiving donations made to her, by a creditor of the husband.

There is no other incapacity to receive as a donee than an incapacity resulting from the text of the law.

It cannot be extended so as to embrace cases not clearly within the incapacity declared.

The Code, as relates to donations, contains dispositions on the subject : “All persons may dispose or receive by donation inter vivos or mortis causa, except such as the law declares expressly incapable,” as to the latter; “all persons may buy and sell except those interdicted by law.” C. C. 1470. Ib. 2445.

Regarding the wife, we have not found any text of the law by which she is excluded from receiving in an honorable transaction, a claim for the payment of which the husband is responsible.

There being no prohibitory law upon the subject, it follows that she may become the husband’s creditor, as donee of a claim against him.

In Slatter vs. Tete, 4th Ann., 465, the principle involved on this point, we think, was similar to the principle involved in the case here, in that a claim was transferred to the wife, which was a preexisting' debt of the husband. The court said that it bore neither privilege nor mortgage; that it seemed to be a paradox; that by the transfer of his note to his wife and its delivery to the husband, this debt should bo invested with the real security of a mortgage, to the detriment of other creditors. “A construction which would operate this injustice, we cannot adopt. The abuses to which it would give rise are an insuperable objection to its soundness.”

“The object of the law is to protect married women and not enable them to wrong their husband’s creditors.” The circumstances of the ease were such as to throw upon Airs. Tete the burden of “showing the solvency of her husband,” but it was found that the wife was none the less a creditor, although it was said “the debt bore neither privilege nor mortgage, and the only security the debtor had consisted in the means and the will of his debtor to pay.” (Italics ours). -

Again, in Eager vs. Brown, 14th Ann., 697, the court held:

“When.property of the wife is sold in a foreign State, and the proceeds thereof are received by the husband in that State, the wife has no privilege upon the property of her husband in Louisiana for the same.”

“But the husband was trustee, he is therefore personally liable to the defendant for the proceeds so received by him; but in a contest with creditors, this personal liability to the wife must yield to the right of the creditors of the husband.” (Italics ours).

This, in our view, amply sustains the conclusion that the wife may become the creditor of the husband under a donation as made in this case.

2nd. Wo pass to the next question, viz: Had the husband the right to transfer his property to his wife in satisfaction of a preexisting claim against him, of which the wife became the transferee ?

It' is well settled that the husband and wife are incapable of contracting toward each other, save when the contract is within the enumerated exceptions. 2446 C. C., 1790 C. C.

The exception applying here is contained in the second paragraph of the first article cited. It reads: “When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated,” a sale may be made in satisfaction of the claim.

Ordinarily, the husband having received the price of property sold by his wife, or having received an amount due his wife from any other source, may make a transfer to her in payment.

The husband is then authorized under the terms of the article to reinvest the sum in her name.

But here the husband had not received the amount at all, and it, in consequence, became a matter of some difficulty to determine whether it was still possible to make a transfer in satisfaction of the claim due by him to the wife, donee of one of his creditors.

There are contracts regarding debts not within the power of the husband to make. Bandry-Lacantinerie, Vol. 3 p. 299, mentions the following as one of the number:

“Enfin, le mari ne paurrait pas vendre un immeuble a sa femme, a la charge par cell© ci de payer certaines dettes dont il est tcnu envera des tiers.”

True, in such a case, a valid sale is an impossibility, but here the wife is a creditor in good faith. Why may she not buy from her husband to satisfy her claim? We think she can, just as any other creditor may buy, subject to the law prohibiting sales that would give her an advantage over other creditors.

But we are convinced that the husband who is in a state of insolvency, has no right to make to his wife a dation en paiement that will not come within the grasp of the revocatory action authorized by Art. 1970 ei seq.j of the Civil Code. But the right to bring the action, in our^view, is subject to the prescription of twelve months, applying to-that action.

3rd. This being our view of the issues thus far, t-he plea of prescript tion of one year presents itself for consideration and decision, the question .being: What prescription is applicable, and when did it begin to run against the right of action of‘H. and 0. Newman to annul the action for fraud? The prescription of one year is the prescription in our judgment, and it began from the day of the sale to the wife.

If the dation was an absolute nullity, it does not come within the curative effects of the prescription.

If only a relative nullity, as we take it, the creditors lose any right they may have to have th&'dation decreed null after twelve months.

We have found no decision of the court bearing directly upon this point.

The corresponding articles of the French Code are similar to ours. From Dalloz, p. 141, vol. 43, section 441, we quote: “La nullite resultant de Pinobservation de Part. 1695, (2446 of our Code), n’est pas une nullite radicale; c’est une rescisión pour vice d’ineapaeite, qui ne peut entre 'demande par les ayants droit que pendant le delai de dix ans, aux termes de Part. 1304.”

The nullity was, in our view, a relative nullity, as shown by French commentators on the subject. It was as such subject to the attack of the creditors within twelve months.

We understand that the prescription of ten years only operates as a bar to a revocatory action in France. Fuzier Hermann, vol. 3, p. 244. N. — 20.

While the title was subject to attack during twelve months from its date, we think, after that time, creditors could not -set up the nullity.

The creditors here claim that the suit was brought within twelve months.

This is a question of fact, and it is a fact that the twelve months had qlapsed.

4th. The creditors contend that their suit was timely enough, for the reason that it was brought within twelve months after the syndic had been appointed.

This is not our view of the law. Prescription was not suspended. The minors who succeeded to the interest of their mother, who was the vendee, were the proper parties to the suit, and could have been sued at any time, without regard to whether a syndic had been or had not been appointed.

For reasons assigned, it is, therefore, ordered, adjudged and decreed in this case, that the dation en paiement made by Jules Petetin to his wife on the 13th of May, 1895, is cured by the prescription of twelve months, and that the sale, as relates to creditors, became valid after ■the expiration of that time; and the case is remanded in order that it may be tried in accordance with the views before expressed.

On Application for Eehearing.

Watkins, J.

H. & C. Newman are creditors of Jules Petetin, and brought a revocatory action for the annulment of a dation en pmement made by him to his wife, on the ground that said dation was without consideration, and a prohibited preference by the husband, •who was insolvent.

It appears from the record that Ilermina Petetin, maiden sister of Jules Petetin, made a donation inter vivos to Cora Renaud,, wife of Jules Petetin, on the 3rd of May, 1895, of a debt due by Jules Petetin to her.

That on May 13th, 1895, Jules Petetin made a dation en paiement which is attacked, to his wife, of certain property, in satisfaction of the aforesaid indebtedness.

That on October 25, 1895, Jules Petetin made a cession of his property to his creditors, and acknowledged the debt of H. & C. Newman; but the schedule of assets did not carry the real estate which had been previously transferred to his wife.

Mrs. Jules Petetin, having died, leaving minor children, issue of her marriage with Jules Petetin, he was appointed and qualified tutor, on September 19th, 1896.

The revocatory action of H. & C. Newman having been filed, Jules Petetin, personally, and as syndic, accepted service of the petition of H. & 0. Newman, on the 2nd day of June, 1897 — more than twelve months subsequently to the cession of Jules Petetin.

It is conceded that the dation en paiement was a real contract, in the sense of not being simulated, and that Mrs. Petetin took possession of the property transferred to her, and that after her death, her heirs went into possession.

IT. & 0. Newman claimed to be paid by preference over the creditors of the insolvent from the proceeds of the sale of said property in case of the annulment of the dation en paiement, and the District Court so held; and from that judgment the syndic appealed to the Court of Appeals, in which a plea of prescription was filed and rejected.

In our opinion, we said: “We deem it proper to state in answer to the foregoing, that, in our view, Jules Petetin- ™as indebted to his wife in the amount of the claim, of which his wife became the donee of one of her husband’s creditors.

“This claim was one in commerce. Whatever value it had, the creditor chose to make a donation of it to the wife of the debtor, who was a free agent to accept donations to her, even of debts due by the husband.”

But while holding that it is well settled that the wife of Jules Petetin had legally acquired the claim of his sister against him by the donation, we held that “it is settled that the husband and wife are incapable of contracting toward each other, save when the contract is within the enumerated exceptions to Revised Civil Code 2446 and 1Y90,” and consequently, held that the dation on paiement of Jules Petetin to his wife did not have “a legitimate cause, as the replacing of her dotal or other effects alienated.”

Or, in other words, “ordinarily, the husband having received the price of property sold by his wife, or having received an amount due his wife from any other source, may make a transfer to her in payment of it.

“The husband is then authorized under the terms of the article to reinvest the sum in her name.

“But here, the husband had not received the amount at all, and it, in consequence, became a matter of some difficulty to determine whether it was still possible to make a transfer in satisfaction of the claim due by him to the wife as donee of one of his creditors.

***** * * *

“But .we are convinced that the husband who is in a state of insolvency, has no right to make his wife a dation on paiement that will not come within the grasp of the revocatory action authorized by Article 19^0 et seq. of the Civil Code.”

But, notwithstanding our opinion entertained and announced that theory, we further held that “the revocatory action in such a case is subject to the prescription of twelve months.”

In the application for rehearing, the principal question discussed is, as to whether a contract of sale between husband and wife in any other case than that embraced within one of the exceptions of Revised Civil Code 2446, is or not an absolute nulilty; and the contention of counsel is, that the authorities show that the aforesaid nullity is absolute, and therefore, contend that this case is- not brought within the purview of Revised Civil Code 1994, limiting the revocatory action to one year.

Having examined that question with care, our conclusion is, that the special provisions of the Code applicable to a revocatory action are governed by the prescription of one year, regardless of the character of the nullity in the sale attacked.

Under the title of the Code, “what contracts shall be avoided by persons not parties to them,” it says, that “contracts considered with respect to their operation on property, either purport to transfer ownership, or to give some determinate right upon it.” Rev. Civil Code, 1968.

Consequently, it is of the essence of the revocatory action that the suit must be instituted by a person who is not a party to the contract assailed.

It is further provided, that “from the principle established by the last preceding article, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor is illegal, and ought, as respects such creditor, to bo avoided. This can be done in the mode and under tho circumstances set forth in the following rules.” Revised, Civil Code 1969.

“The law gives to every creditor * * * an action to annul any contract made in fraud of their rights.” R. C. 0. 1970.

“This action can only be exercised when the debtor has not property sufficient to pay the debts of the complaining creditor.” R. C. C. 1971.

Again:

“No contract shall he avoided by this action, but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them.” R. 0. 1978.

From the foregoing we gather that the law gives to persons who are not'parties thereto, a right to institute a revocatory action to annul any contract made in fraud of their rights; but same cannot be instituted for the purpose of revoking a fraudulent contract, if the debtor 'has sufficient property to discharge the debt of the complaining creditors.

“If the contract be purely gratuitous, it shall he presumed to have been made in fraud of creditors, if at the time of making it, the debtor had not over -and above the amount of his debts, more than twice the amount of the property passed by5 such gratuitous contract.” R. 0. 0. 1980.

This positive declaration of the Code clearly shows that even purely gratuitous contracts, those wholly without any consideration, come with the purview of this action.”

“Not only contracts which dispose of property, hut all others which are ma^le in fraud of creditors, and deprive them of their recourse to the property of their debtor, come within the provisions of this section.” R. 0. 0. 3989.

We have enumerated the foregoing provisions of the Code for the purpose of showing that they control the creditors’ right of action to have annulled a contract to which he is not a party, in order to subject the property disposed of to the payment of his claim, and that it is not the particular character of nullity or fraud in the contract, that controls the action.

This is clearly shown by the provisions of the article which prescribe the limit within which the action must be brought, to-wit:

“The action given by this section — ‘what contracts shall be avoided by this action’ — is limited to one year; if brought by a creditor individually, to be counted from the time he has obtained judgment against the debtor; if brought by syndic or other representatives of the creditor collectively, to be counted from the day of their appointment.” R. C. C. 1994.

The provisions of this article are certainly broad enough, and in terms were intended to embrace all contracts which can be avoided by this action.

The instant suit having been brought by way of opposition in the insolvency of Jules Petetin, claim is made that the twelve months should be counted from the day of the syndic’s appointment.

Our conclusion is, that the opposition not having been filed within the twelve months’ limit specified, it came too late, and that the plea of twelve months’ prescription was properly sustained, and that without regard to the character of the nullity in the contract, of which the creditor complains.

In passing upon the plea of prescription, we have only to look to, and deal with the character of the action, and not to the character of the nullity complained of in the act; and finding the action to be revocatory, it must be subjected to the rule of prescription which is applicable thereto.

Rehearing refused.


author: Miller, J. Monroe, J.

text:
    No. 12,996.
    Succession of Thomas J. Foster, Deceased.
    Syllabus.
    The fee of the attorney of the mortgage creditor, fixed in the act of mortgage on-the amount of the debt forms part of the demand. It is part of the amount claimed and inseparable from it in matter of jurisdiction.
    Where the mortgagee is compelled to employ counsel to attend to .the collection of his claim, and counsel render the services incident thereto, such as obtaining the payment of interest and granting extensions in expectation of full payment of the debt, interest and fees; Held, the fee stipulated in the act of mortgage is due.
    On Rehearing.

      On motion to dismiss the appeal. Where a plaintiff claims an amount within the appellate jurisdiction of this court, and the defendant admits his indebtedness for part of such amount, but the District Court rejects the entire demand, and the record fails to disclose any deposit, consignment, or acceptance of the amount admitted to be due, such rejection is error affecting the whole claim and an appeal will lie to this court, notwithstanding that the amount claimed exclusive of the amount admitted to be due is less than two thousand dollars.
    On the Merits.
    1. A stipulation, in an act of mortgage whereby notes are secured, which reads: “In case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or any part thereof, he (the mortgagor) hereby binds himself to pay the fees of the attorney who may be employed for that purpose, which fees are hereby fixed at ten per cent on the amount sued for,” imposes upon the holder of the notes, seeking to recover the fees, the obligation of proving, in ease his right to such recovery is contested, the existence of the conditions contemplated by the stipulation.
    2. It is not to be supposed that the contracting parties in such a case use the word “necessary” without reason or purpose, or that they intend thereby that the attorney’s fees shall be paid where legal proceedings are unnecessary. This court will not, therefore, read that word out of the contract or invert its meaning.
    3. Nor will It be supposed that such parties predicate the right to recover, and the obligation to pay, attorney's fees, solely upon a resort (when necessary) to legal proceedings “for the recovery of the amount,” etc., if they intend that such right and obligation shall arise in case of a resort to legal proceedings for some other purpose than such recovery.

      4. Nor can the court ignore the language, used by the parties, to the effect that the fees to be recovered are “fixed at ten per cent, upon the amount sued . for,” and, in the absence of a “suit,” and of anything, which, by reasonable interpretation, can be called a suit, fix and award the fees upon some other basis.
    ON APPEAL from tbe Twenty-Fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Beattie & Beattie for Plaintiff in Rule, Appellant.

      B. Gaffery & Son and Richardson & Soule for Defendant in Rule, Appellee.

      Argued and submitted January 13, 1899.
    Opinion handed down March 20, 1899.
    Rehearing granted April 17, 1899.
    Opinion handed down on rehearing June 21, 1899.
   'The opinion on rehearing by Monroe, J.

On Motion to Dismiss.

(The original opinion in this case loas prepared by the late Justice Miller, and having been considered by the Court, subsequently, was adopted as the judgment of the Court).

Miller, J.

The appellant, the mortgage creditor of the succession of Thomas J. Foster, sought by rule in the lower court to compel the sale of the property of the succession to pay the debt amounting to two thousand two hundred dollars, and from the judgment against her «on her rule, takes this appeal.

A motion to dismiss the appeal is made 'on the ground that the •amount in dispute is below our jurisdiction. It is urged that the controversy arose with reference to the fee of the attorney of the mortgage creditor, which was fixed by the act at ten per cent, on the amount of the debt. That, in our view, forms part of the demand of the appellant, and it is the amount claimed, not one of the elements, that is the test of our jurisdiction.

The motion to dismiss is denied.

On the Merits.

The record shows the mortgage notes were placed by the mortgage creditor in the hands of her attorney, for collection.

On the application of the attorneys the interest on the notes was paid for two successive years and corresponding extensions were given by the attorneys; at the expiration of this last extension the administrator of the succession offered to pay the principal and interest of the debt, but refused to pay the attorneys’ fees. The attorneys insisted on that payment, as part of their client’s debt. On the rule to sell the property, the court sustained the contention that the mortgage creditor could not demand the attorneys’ fees and refused the order of sale. On this appeal the question is whether the succession of Foster is not liable for the foes claimed as part of the debt secured by the mortgage.

The notes were put in the attorneys’ hands for collection. They rendered the usual services incident to such collections, obtained the payments of interest, and gave the extensions on the expectation of full payment of the debt, interest and fees.

The fee of the attorney stipulated in the act of mortgage, is due when the mortgagee is bound to employ counsel to attend to his claim. Levy vs. Beasly, 41st Ann., 632; Mullen vs. His Creditors, 39th Ann., 399.

The amount due by a succession, the delays given, the agreement arrived at about the claim, the written acknowledgement endorsed on •the claim, rendered the succession responsible for the fee.

The suit was averted by mutual agreement with the parties and the debtor’s acknowledgement of the debt. The acknowledgement, as endorsed on the claim at the time a delay was granted, was, in character, equal to a judgment. Succession of Remore, 29th Ann., 494.

Under the circumstances the proceedings were legal proceedings and fell within the stipulations of the act of mortgage.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed. ■

It is further ordered, adjudged and decreed, that the mortgaged premises described in the petition, be sold to pay and satisfy the amount duo upon three mortgage notes, each for the sum of two thousand two hundred dollars, payable respectively on the twelfth day of March, of the years 1892, 1893 and 1894, and on which the interest has been paid up to March 12th, 1897, and for ten per cent, on the amount of the principal and interest due, and ten per cent, on the amount of the interest due and collected from March 12th, 1894, till paid, as attorneys’ fees.

It is further ordered, adjudged and decreed that the succession pay the costs of both courts.

Ok Rehearing.

Monroe, J.

Thomas J. Foster, now deceased, borrowed $6600.00 from Mrs. Cecelia T. Blake, testamentary executrix of Eugene W. Blake, deceased, and gave, in acknowledgement thereof, his three promissory notes, of $2200.00 each, dated March 12, 1891, and made payable, upon the twelfth days of March, 1892,1893, and 1894, respectively, with interest at the rate of 8% per annum from date until paid. To secure these notes, he executed a first mortgage upon a plantation shown to be worth $25,000.00. The act of mortgage contains the following provision, to-wit:

“In case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or of any part thereof, he, the said Thomas J.' Foster, hereby binds and obligates himself to pay the fees of the attorney who may be employed for that purpose, which fees are hereby fixed at ten per cent, on the amount sued for.”

The present litigation arose out of a difference of opinion between counsel employed by Mrs. Blake and the administrator of the Foster succession as to the liability of the latter for attorneys’ fees under the clause above quoted.

The maker of the notes died within the year following their execution, and Mr. J. Warren Foster was appointed administrator of his succession. The interest upon all the notes was paid by him regularly, in the years 1892, 1893, 1894 and 1895. That it was so paid in 1892 and 1893 is admitted. As to the years 1894 and 1895, counsel for the administrator assert, most positively, that it was paid when due. In their brief, on rehearing, they say: “Such interest, it is admitted, was paid at maturity.” Upon the other hand, counsel for the plaintiff say in their brief: “We know of no such admission, and it is not a fact.” In this situation, we must rely upon the evidence in the record. It is admitted that, in 1896, the administrator neglected to pay the interest upon the 12th of March, and for several months -afterwards, and it appears that Mrs. Blake placed the notes in the hands of her attorneys in July of that year, at which time the interest, which fell due March 12th, was still unpaid. It is claimed by the administrator, that this was the only interest which was then unpaid. It is admitted that this interest, due March 12th, 1896, was paid July 27, 1896. It is also admitted that the interest which fell due March 12th, 1897, was paid at maturity. The testimony of the administrator given in 1898,. upon the subject of his payment of interest, is as follows, to-wit:

“A. The interest has been paid up to March 12th, ’97.

“Q. Has it been paid regularly at the end of each year ?

“A. Yes, sir, with the exception of once, there was a lapse of two- or three months.

“Q. lias it been the course of your dealing with Mrs. Blake to pay the interest at the end of each year?

“A. Yes, sir.

“Q. On the whole amount of the notes?

“A. Yes, sir.

“Q. On those notes which were due as well as those which were not due?

“Á. Yes, sir.”

His cross-examination upon the point was confined to a single question, to-wit:

“Q. Mr. Foster, I understood Mr. Caft'ery to ask you if you hadn’t paid all the interest due, now did you pay any interest that was not due?”

“A. No, sir, all the interest I paid was due.”

The only testimony given by the counsel for the plaintiff, himself,, upon the subject, is as follows: “Some days before the 22nd of July, 1896, Mrs. Blake handed me the notes now sued on. The interest had not been paid at that time. * * * Mr. Foster proposed to pay the interest up to the 12th of March, 1896, and asked for a continuance of the notes. I insisted upon the indorsement, and Mr. Foster gave a check or a draft, and it was understood that, when it was paid, I was to indorse the interest upon the back of the notes, which I did do. Afterwards, on the twenty-second of February, 1897, I wrote him, and’ he sent me a letter * * * enclosing me a check * * . * for the amount of the interest — and we indorsed that payment • upon the-notes.”

The indorsements upon the notes are as follows, to-wit:

“Interest for the first year, paid, March 12, 1892.

(Signed)

“Cecelia T. Blake.

“Interest paid up to date, March 12th, 1893.

(Signed)

“Cecelia T. Blake.

“Interest paid up to March 12th, 1896. .

“Interest paid up to March 12, ’97, and payment extended one-year; February 27th, 1897.

(Signed)

“Beattie & Beattie.”

This is all that we find upon the point at issue. Under these circumstances, and as Mr. Foster testifies, positively and specifically,. that the interest was paid regularly every year, except one (referring to year 1896), as ho gave this testimony in the presence of the plaintiff’s counsel, who did not question its correctness, either by the cross interrogatories propounded, or in the testimony which he, himself, appears to have given as soon as Foster left the stand, we can find no sufficient reason for not accepting it as true.

We repeat, then, -that the interest was regularly paid in 1892, 1893, 1894 and 1895. Payment of the principal was, however, never asked, or desired, though the last of the notes matured in 1894, for the reason that the holder was satisfied to hold them-as an investment, having bought them originally for that purpose. In March, 1896, as has been stated, the administrator neglected to pay the interest due at that time. Mrs. Blake does not appear to have reminded him of it or to have made any demand, but she put the notes in the hands of Messrs. Beattie & Beattie, her attorneys, who wrote, not to the administrator, but to Dr. Dixie Foster, one of the heirs, as follows:

“Thibodeaux, July 22nd, 1896.”

“Mr. Dixie Foster :

“Dear Sir — There have been placed in our hands for collection three notes, secured by mortgage, and signed by Thomas J. Foster, each of these notes is for $2200. We do not wish to give any trouble about them, and wish to facilitate you as much as we can. We think it best to enter up judgment upon them, but do not, at present, know the exact status of the succession of your father. Will you please let us know what can be done in this matter, and if you be not the proper person to address, let us know to whom we should apply.

Tours truly,

(Signed)

“Beattie & Beattie.”

This letter was addressed to Dr. Foster, at Franklin, and was, by him, handed over to the administrator, J. W. Foster, at once, and the latter replied the next day, saying:

“Tours of the 22nd inst. addressed to my brother was handed me this morning. I will bo over to see you to-morrow, in regard to the matter.

(Signed)

“J. W. Foster.”

lie accordingly went over to Thibodeaux, not the next day, but on July the 27th; and he testifies as follows, as to what,took place;

“I saw Mr. Blake, and asked him wasn’t he satisfied with the interest; he said he was, and to come to Judge Beattie’s office and we ■would see him. We went to Judge Beattie5 s office, and he asked m« to acknowledge the debt, as administrator, and I did so. I then gave him a check or draft, I don’t remember which, in payment of the interest on these notes, with which he was perfectly satisfied, and told me that when itnvas collected, he would credit it on the notes. I then left Thibodeaux. Nothing was said about the principal whatever.”

Concerning the “Hr. Blake” thus spoken of, he says:

“Q. You have dealt with Mr. Bannon Blake, as representative of his mother, in making t-hc payment of this interest?

“A. lie and Judge Smith, I have dealt with altogether.

“Q. And when you dealt directly with the Blakes, you dealt with Bannon Blake, as the representative of his mother?

“A. Yes, sir.

“Q. And, in dealing with him, he acted as the agent of his mother ?

“A. Yes, sir.”

On the 22nd or 24th of February, 1897, Messrs. Beattie & Beattie wrote to the administrator: “The interest on notes belonging to Mrs. Blake is due on the 12th of March. If paid, there will be no trouble about a postponement for another year. Please send us the amount, and we will credit it on the notes, as we hold them for her.”

The administrator replied on the 25th of February: “Your favor of the 24th at hand, and noted. Enclosed find check for five hundred and twenty-eight dollars, in payment of interest on notes, favor of Mrs. Blake, amounting to $6,600.00. Please credit amount of in terest on notos and oblige.”

The interest thus paid was credited by an indorsement on the notes, which reads: “Interest paid to March 12th, 1897, and payment extended one year. Feb. 27, ’97.

(Signed) Beattie & Beattie.”

The following year, February 3, 1898, the administrator wrote to Messrs. Beattie & Beattie, proposing to take up one of the notes, to pay the interest on all of them to March 12, 1898, and suggesting that the two remaining notes be extended one year. Messrs. Beattie & Beattie replied February 7, 1898, agreeing to all that was proposed, with a condition which they thus state: “But our attorney’s fees will have to be paid, as they have been due for some time. We are disposed to be as lenient as possible, and will not exact any more than the amount due on the note to be cancelled,” etc.

There appears to have been some delay between the writing and the receipt of this letter, for the administrator replied by a telegram, ■dated February 14, 1898: “Can you meet me Tuesday morning at your office? Answer;” and on the following day, February ISth, he Went to Thibodeaux and had an interview with Judge Beattie. As that .gentleman insisted upon the attorney’s fees being páid, the administrator tendered payment of the full amount of the principal and interest of all the notes; that is to say, he made a tender which he intended in that way. This tender was refused on the grounds that it was not made in money; that the amount was insufficient to cover the principal and interest which would be due on March 12th; and that such a tender would, in no case, be accepted unless it included the attorney’s fees claimed. The next day, February 16th, the administrator deposited in bank, in Franklin, and ordered it transferred to the bank at Thibodeaux, $7,100.12, and he telegraphed to Messrs. Beattie & Beattie: “Amount due on notes deposited to credit of Mrs. Blake, or yourself, in St. Mary Bank, will be transferred to the Bank of Thibodeaux this evening.” To which Messrs. Beattie & Beattie. replied, by letter, February 16th, that the administrator could deposit his money where he pleased, etc., etc. — and saying — “when the notes held by us become due, we shall take legal steps to collect the amount due on them.”

Thereafter, on February 18th, Messrs. Beattie & Beattie were notified by the Bank of Thibodeaux that it held $7,100.12 subject to their order, or the order of Mrs. Blake, upon the surender of the notes in question; to which they replied, on the same day, denying that any legal tender of payment of the notes had been made; stating that the notes would not fall due until March 12th, and that the amount would be greater than the amount held by the bank, and, saying further: “besides that, the notes bear ten per cent, attorney’s fees clause, and were placed in our hands for collection several years ago, as is well known to Mr. Foster. If he will, or if you will, for him, pay us in full, amount of notes, with interest, to maturity and 10 per cent attorneys’ fees, we will hand you the notes, not otherwise.”.

It is admitted that, about this time, a tender, legal in all respects, was made of the full amount of the principal of the notes, with interest to maturity; that is to say, that actual tender was dispensed with, but it was agreed that it should be considered as having been made. Later on, in April, Mrs. Blake, through her same attorneys, appeared in the District Court, in the succession of Foster, and ruled the administrator to show cause why the property mortgaged should not be sold to satisfy the notes in question with interest, attorneys’ fees, costs, etc. To this rule the administrator answered, in substance, that the notes had been treated as a continuous loan; that the interest had been paid year after year; that no demand for the payment of the principal had been made; that he stood ready to make such payment when called upon; that no legal proceedings for the collection of the .notes was necessary, and, hence, that no attorneys’ fees were due. He also alleged the tender of the payment of the principal and interest, and set up a claim for damages in the way of attorneys’ fees.

The trial of this rule resulted in a judgment rejecting the plaintiff’s entire demand, and the plaintiff has appealed. A motion to dismiss the appeal was, subsequently, filed in this court, and passed on in the original opinion.

On Motion to Dismiss.

From the foregoing statement of the pleading and evidence, it appears that, notwithstanding the admission that the succession owed the principal and interest of the notes sued on, the entire demand of the plaintiff in rule was rejected. This, we have no doubt, was an error into which our brother of the District Court was led by the manner in which the case was presented — probably by statements and admissions of counsel to the effect that the amount of the principal and interest of the notes was at the command of plaintiff in the rule, and that the only point of dispute was as to the attorneys’ fees. As the record is presented to us, however, we have no sufficient evidence that such an amount is at the plaintiff’s command. It is true that it was tendered to the plaintiff at some time prior to the trial, but that tender was not repeated at the trial, and non consiat that the defendant in rule will repeat it if there is a final judgment, on the rule, rejecting plaintiff’s demand for the sale of the property. The consignment, or/deposit in bank, is not even set up, nor is a tender made, in the answer to the rule to sell, and whether the money, deposited in bank to the order of plaintiff, or her attorneys, was allowed to remain there, we have no means of knowing. It is fair to suppose that if the defendant in rule expected to derive any benefit from the fact, and the continuance, of the deposit, it would have been set up as a defense, and evidence would have been offered to show that the money had really been consigned and was still in bank subject to the order of the holder of the notes. In the absence of such averment and proof, she has been thrown out of court, with nothing that ¿seems to bo at all certain, although her claim is admitted, as to the principal and interest, and entitles her to either payment or judgment. The authorities to which we have been referred, upon the subject of jurisdiction, are inapplicable to such a condition. If, say, $7,000.00, representing the principal and interest of the notes sued on, had been tendered in court, upon the trial of the rule, and had been accepted by the plaintiff, there would have been nothing left in dispute except the attorney’s fees. The authorities sustain that proposition, and some of them go a little farther. But there was no such amount tendered or accepted, and the plaintiff has neither money nor judgment — whereas she is certainly entitled to one or the other. A brief resume of the authorities, to which we have been referred, will show their inappplicability:

Zacherie vs. Lyons, Administrator, 22 Ann., 218.

Defendant was sued for $1,449.59. He admitted owing, and he deposited in court $1,QJ/.1.00, which the plaintiff withdrew. Held: That the amount in dispute, after such withdrawal, was less than $500.00.

Girardey vs. City, 26th Ann., 291.

Defendant was sued for $1000.00 and admitted an indebtedness of $725. There was judgment for the whole amount claimed and the defendant appealed. Held that there was only $275 left in dispute.

Stubbs vs. McGuire, 33 Ann., 1069.

Execution was issued on a judgment for $1,029.84, and certain property was seized. The seizure was enjoined on the ground that the writ should have been credited with $[96.95, which had been paid, and upon other grounds, unnecessary to mention. The payment of the $496.95 was admitted, and it was held that the only amount left in dispute was the difference between the amount with which it was thus admitted that the writ should have been credited, and the amount for which the writ had issued.

Even in Denegre vs. Moran, 35th Ann., 346, we infer that the plaintiff had judgment for at least the amount admitted to be due, whilst in Blache vs. Aleix, 15th Ann., 50, an admission, coupled with a deposit in court, which was not withdrawn, and where there was no partial judgment entered, it was held, did not curtail the claim of its original proportions. “That,” the court said, “was only aecom-plished by the final judgment,” which was the subject of the appeal sought to be dismissed.

Our ruling heretofore made, upon the motion to dismiss, will, therefore, remain undisturbed. ■

On the Merits.

I.

The contracting parties were at liberty to agree that attorney’s fees should be paid in the particular case for which, as a matter of fact, provision has been made, or they might have agreed that they should be paid where the contingency was more imminent, or more remoré. Thus, instead of agreeing that the maker of the notes should pay such’ fees “in case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or any part thereof — which fees are hereby fixed at ten per cent, on the amount sued for,” as their contract reads, they might have imposed such liability on the maker of the notes, in the event of their non-payment at maturity — with, or without, previous demand and refusal or neglect to pay; or, in the event that the mortgaged property should realize a sufficient amount over and above the amount of the notes and interest; or, they might have been entirely silent upon the subject. In other words, there was a wide field into which they wore at liberty to enter, and there make their choice among many conditions; and all languages, living and dead, might have been utilized for the expression of the consensus at which they arrived. A's such a provision would, however, in any case, be regarded as in the nature of a stipulation for a penalty, the burden would rest upon the party seeking to enforce it to establish clearly, and affirmatively, the existence of the conditions required for such enforcement. And, for the purpose of determining what those conditions were, a court of justice would, necessarily, presume that the language used was selected intelligently hy the contracting parties, in order to define the conditions agreed upon, and differentiate them-from other conditions which might have been agreed upon.

If the litigants before this court had, themselves, left the word ‘necessary” out of their contract, and had merely agreed that the fees' should be paid “in case of resort to legal proceedings,” the probabilities are that, even in that case, the mortgagee would not have been allowed to recover upon the basis of “legal proceedings,” wholly unnecessary, or based upon a necessity entirely of her own making.. The word “necessary” was not, however, left out by the parties themselves, but may, under the circumstances, be regarded as having been used, ex abundante cauiila, and in order to emphasize the idea conveyed by it. We are not, then, at liberty to eliminate it; and to hold that the maker of the notes should be made liable in case of legal proceedings whether “necessary” or not.

Pretermitting, then, the consideration of the question, whether there were any legal proceedings of the character otherwise contemplated by the contract, the first inquiry is; were any legal proceedings necessary ?

The evidence shows that the notes for $6,600.00, bearing interest at the rate of eight per cent, per annum, were secured by first mortgage upon property worth $26,000.00, and that the holder had taken them .originally as an investment, and was willing to hold them as such. And, it must be admitted, that a better investment could hardly be found.

The first note fell due on March 12th, 1892, and upon that day the interest for the year, upon all the notes, was duly paid, but it does not appear that anything was said about the payment of the principal of the note which was then due. The second note fell due March 12th, 1893, and upon that day the interest for the year upon all the notes was paid, but there was no demand for the payment of the principal •of the two notes which were then due: The third note fell due March 12th, 1894, and the interest upon all the notes was paid, but, though they were all now due, there was still no evidence of a desire on the part of the holder that they should be paid. She was content to hold them as an investment, and receive her annual income in the way of interest. The same condition existed, when, in 1895, the interest was again paid. When the 12th of March, 1896, came around, the administrator appears to have forgotten, or to have neglected, to pay the annual interest. It is not alleged, or shown, that the holder of the notes reminded him of his failure, or made any demand upon him, but, somewhat later, she placed the notes in the hands of Messrs. Beattie & Beattie, her attorneys, not that she wanted them paid, if they were still safe as an investment, but, no doubt, because the interest due March. 12th, 1896, had not been paid, and she probably wanted the matter inquired into, and steps taken, if necessary, to .protect hesr rights. Messrs. Beattie & Beattie addressed a communication, not to the administrator, but to bis brother. It, however, reached the administrator without delay — and be responded without delay — first, by letter, and then by going to Thibodeaux, in order to comply with the only request which was made, to-wit: “Will you please let us know what can be done in the matter ?”

The whole evidence in the record, taken together, justifies the belief that be went prepared to say to the holder of the notes, or to her attorneys, “I am ready, on behalf of the succession of Thomas J. Foster, to pay the interest now due, or past due, on the notes held by .you, with the understanding that the notes are to be extended, or to run on as they have been allowed to do for the past several years; or, if you insist upon, or desire it, I will pay them, principal and interest.” As it happened, be first met the son and personal representative of the bolder of the notes, who had, before that, acted as her agent in the matter of receiving the interest and extending the time of payment, and was at once told by him that his mother would, as usual, be satisfied with the payment of the interest. They then went, together, to the office of Messrs. Beattie & Beattie, and but one additional suggestion appears to have been made by those gentlemen, i. e., that the administrator should indorse an acknowledgment of the debt upon the backs of the notes, which was done without hesitation. The interest was then paid and it was understood, tacitly or otherwise, that 'the notes should be allowed to run on another year, from March, 12th, 1896. Mr. Foster says that nothing whatever was said about the payment of the notes. Judge Beattie says that it was agreed that they were extended. It is immaterial as to this. No demand or request, as to the payment of the notes was made, and no condition was suggested as a consideration for extending the time of payment, except the payment of the interest then due and the acknowledgment, by the administrator, of the validity of the debt. Now, certainly, there had been nothing which could be called a legal proceeding up to the time that the administrator met Mr. Blake and understood from Mm that Mrs. Blaise wanted only the interest. The letter written by Messrs. Beattie & Beattie, wMch brought the administrator to Thibodeaux, had not been written to him, or to anyone representing the succession and was not, therefore, a demand upon him, or upon the succession. He came, then, before a demand of any kind was made upon him, for the purpose of doing whatever the holder of the notes required, or wanted, with reference to them, in order, as we think, that the heirs of Thomas J. Foster might be saved the annoyance and expense of legal proceedings.

He did all that was asked, or wanted; that is, he paid the past due interest, acknowledged the notes, and with the understanding, tacit or expressed, that the time of payment had been extended, as usual, he went back home in the belief that he had accomplished the object of his mission. No demand for the payment of the notes was made, and nothing was said about attorney’s fees. If, then, it be true that the obtention of the administrator’s acknowledgment, an acknowledgment given, as we think, for the purpose of avoiding legal proceedings, and in the belief that no legal proceedings would be taken, was regarded by the plaintiff’s counsel as being, in itself, a legal proceeding, we think that it would have been only fair that the administrator should have been so informed before he signed it; since he had voluntarily gone from Franklin to Thibodeaux to make a settlement such as would relieve the holder of the notes of the necessity of resorting to such proceedings. The following year, in February, 1897, Messrs. Beattie & Beattie wrote to the administrator reminding him that the annual interest would fall due on March 12th, and, so far from demanding payment of the principal of the notes, volunteered to extend them for another year upon payment of such interest.

To this the administrator replied, fifteen days before the interest fell due, enclosing a check for the same, and accepting the offer to extend the time of payment of the principal; nothing was said about attorney’s fees. The next year, in February, 1898, the administrator wrote proposing that he should pay one of the notes, principal and interest, and should pay the interest upon the other two, and that these latter should be extended for another year, and the question of attorney’s fees was mentioned, for the first time, in the answer to this letter. Messrs. Beattie & Beattie wrote that they, for their client, would agree to all that was suggested, provided their fees, of ten per cent, on the amount of the note to be paid, was included in the payment. To this the administrator replied, by telegraph, that he would, at once, go to Thibodeaux to see the writers of this letter. He did go to Thibodeaux without delay, and when he found that Messrs. Beattie & Beattie insisted upon their demand for fees, he tendered the full amount of the principal of all the notes, with interest to March 12th, 1898. He also deposited the amount in the bank in Thibodeaux, subject to the order of the holder of the notes, or her attorney, and had the latter duly notified of the deposit. Both tender and deposit were declined, and a rule was taken to sell the property to pay the notes, with interest, attorney’s fees, and costs.

The question then recurs; where was the necessity for any legal proceeding at all?

The burden of proof rests upon the plaintiff. From the evidence adduced, it does not appear that there was any necessity for the obtention of the administrator’s acknowledgment in July, 1896. The notes had been extended from year to year, by tacit or express agreement. There was no demand then made for their payment, and, as a matter of fact, it may be said that the holder did not want them paid, but was perfectly willing to extend them on payment of interest. Beyond this, the evidence justifies the belief that if there had been any intimation that payment was expected or desired, the administrator would have done, at that time, what he did later, when called upon to pay $220.00 of attorneys’ fees; i. e., he would have made a tender of the whole amount of the debt. If, then, the obtention of the acknowledgment should be regarded as a legal proceeding within the meaning of the contract, it was still lacking in the essential that it was not “necessary;” for, the payment, which was not wanted, could, if wanted, have 'been obtained without it.

The filing of the rule to sell, after the whole amount due had been tendered and refused, was a necessity of the plaintiff’s own making, and, whatever may be her rights in the premises, was not a necessary legal proceeding within the meaning of the attorney’s fee clause in the contract, which means a necessity resulting from some default on the part of the maker of the notes, or arising from conditions for which, as between him and the holder, he is responsible. Our conclusion upon this branch of the subject, which did not particularly attfaeT. attention upon the former hearing, then, is; that the strong language used in the contract precludes the idea of a resort to legal proceedings, such as would entitle the holder of the notes to attorney’s fees, except in case of necessity; that the burden rests upon the plaintiff, seeking to recover, upon the ground'that she has resorted to legal proceedings, to show that there was a necessity for so doing; that such necessity could be shown only by evidence that, at least, a reasonable effort had been made to obtain payment in some other way, or that any such effort would have been impracticable or useless; and that, as it not only appears that the debtor was unaware that the plaintiff wanted the debt paid, but had reason to believe that she did not, and, as a matter of fact, that she did not want it paid, and never made any request to that effect, but consented that the time of payment should be extended, it can not be said that a resort to legal proceedings for the recovery of the debt, or any part of it, is shown to have been necessary.

II.

Still assuming, for the purposes of the argument, that the obtention of the administrator’s acknowledgment was a legal proceeding',, it was not, under the circumstances of the case as presented, a legal proceeding resorted to for the recovery of the debt. The purpose which the plaintiff had in view was not the recovery of the debt, but the obtention of additional assurance of the security of her investment. It might, with as much propriety, be said that the act of mortgage and confession of judgment in favor of the holder of the notes was a legal proceeding resorted to her by her (at the time of their receipt) for the recovery of the amount represented by such notes. But it is plain that tho confession of judgment and the act of mortgage were not resorted to for the recovery of the debt, for there was no debt due when they were executed. They were resorted to at that time for the purpose of securing a loan which the plaintiff was desirous, or willing, to make, as an investment of her money. If, when the loan fell due, it was not paid, she might then resort to the confession of judgment and mortgage to enforce its payment. And so, it may be said, with regard to the acknowledgment of the administrator. It may, or it might, at some time, be resorted to, as a basis of recovery, but at the time it was obtained, it was rather, as we think, intended to j)lace upon a surer footing a debt which the plaintiff was not seeking to recover, but to extend, or renew, as an investment.

III.

Still further considering the acknowledgment obtained by the-plaintiff’s attorneys, and with a view to determining whether its obtention was a “legal proceeding” within the meaning of the contract sued on, our attention is attracted to the concluding language in the provision bearing upon the subject. To quote that provision again r The maker of the notes is to pay attorney fees “in case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes or any part thereof, which fees are hereby fixed at ten per cent, of the amount sued for.”

It can not be claimed that any suit was brought, before the filing of the rule to sell; and that rule was filed, not because of any difficulty in recovering “the amount of said notes, or any part thereof,” but because of a refusal to pay ten per cent as attorney’s fees, when, by the terms of the contract, the amount of those fees was to be determined by the amount sued for. Plainly, if no suit was brought, there was no way of fixing the amount of the fees. And if it was unnecessary to bring the suit for the recovery of “the amount of said notes or any part thereof,” there was no warrant for bringing it at all.

IY.

The rule eventually taken by the plaintiff for the sale of the mortgaged property, must be considered in connection with the fact that it is distinctly admitted that, before it was taken, the administrator had made a legal tender of the full amount of the debt, the attorney’s fees not being included.

In Simonds vs. Sheriff, et als., 46 Ann., 473, the language of the act of mortgage, upon the subject of attorney’s fees, was identical with that used in the present case. The holder of the notes, however, instituted suit, via. executive!., for the recovery of the debt, and the mortgagor enjoined. There was no question but that the proceeding had been resorted to for the recovery of the debt; there was no doubt that it was a suit, and, hence, established the basis contemplated by the contract for the fixing of fees. The evidence did not establish that the holder' of the notes had taken and held them as an investment, and that the maker was led to understand that the payment of the principal would be extended upon the payment, annually, of the interest. The debtor made no legal tender of payment before the bringing of the suit; and this court said, in reference to said debtor:

“At the same time, we think it clear that he was not liable or “responsible for these fees previous to the institution of legal pro- “ ceedings, and that he could have discharged himself from their pay- “ ment by making a seasonable legal tender, in conformity to the pro- visions of Article 407, Code of Practice.”

In the instant case, the debtor made the “seasonable legal tender,” ¿referred to, of the principal and interest of the notes, at a time when, for the reasons which have been given, the attorney’s fees constituted no part of the debt.

In Ziegler vs. His Creditors, 49 A., 144, the syllabus reads: “At tomeys’ fees stipulated in a mortgage, to he paid in ease of non- “ payment of the debt at maturity, are due when' the mortgagee is “bound to employ counsel to collect the mortgage, and such counsel

represent him in the succession proceedings.” In the opinion, it is said (p. 158); “The judgment of the Civil District Court, allowing “Mrs. M. F. Smith attorney’s fees is correct. Her claim was not paid “ as it should have been, and the result of its non-payment was to “ bring about a condition of affairs which made the employment of u counsel necessary for the protection of the creditor’s rights.”

"We have been unable to find, in the opinion upon the rehearing, the 'expression of views to which plaintiff’s counsel refer in their brief.

Plaintiff can not, therefore, be considered as entitled to the attorney’s fees by reason of the taking of the rule.

V.

The remaining question is — what are the plaintiff’s righls, aside from the question of attorney’s fees ?

The first attempt to make a tender of payment was abortive. This was followed by the deposit in bank. After the deposit, the admis•sion was made that the administrator would he considered as having made a full legal tender; this being- done to save the trouble of obtaining money, and observing formalities. Whether the money deposited in bank had been allowed to remain there and continued to remain there up to the date of, and after, this admission, and whether it is there now, or in the possession of the defendant, does not appear. To have relieved the succession of further risk and expense, the administrator should have either alleged in his answer to the rule, and ¡proved, that the money was still deposited in hank subject to the •plaiiitiff’s order, or else, he should have renewed his tender, as a defense to the rule, and should have followed it up by depositing the money, cither in court or in bank, for the plaintiff to take if she «hose.

As the matter stands, whilst tho tendel-, as made, rendered legal proceedings unnecessary, it did not discharge the debt, and whilst the refusal of the plaintiff to accept the tender deprived her of the right to attorney fees, it did not operate to prevent her from demanding payment of the notes and mortgage.

The argument of counsel, taken in connection with the judgment of the court a qua, leads us to believe that it was an understood thing that the plaintiff could, at any time, get the amount of the notes and interest, if she had been willing to accept the same, and that the whole purpose of the litigation has been to determine the question of her right to recover attorney’s fees. That question has now been settled, so far as concerns the present status, and any delay on the part of the defendant in placing- the amount of the principal and interest of the notes within the reach and control of the holder would make necessary legal proceedings such as would entitle her, the holder, to the attorney’s fees which are now denied.

It is therefore ordered, adjudged and decreed that the Judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the plaintiff in rule directing the defendant, J. Warren Foster, administrator, to cause the lands described in said rule, to be advertised and sold, according to law, to satisfy the plaintiff’s claim, amounting to $6600.00, with interest thereon at tire rate of 8% per annum from March 12th, 1897, until paid, and 10% upon the aggregate amount of said principal and interest as attorney’s fees, together with the costs of these proceedings in both courts, provided, however, that if, before this judgment, becomes executory, the succession of Thomas J. Foster shall tender to said plaintiff, and consign, in the event of refusal to accept the tender, the full amount of the said $0600.00, interest, and costs, then and in that event, such tender and consignment shall be held to discharge said succession of all further liability in the premises.