text:
    No. 8541.
    The Heirs of Jacob Hoover vs. Z. York and E. J. Hoover, Executors. A. G. Ober, Intervenor.
    The heirs of a deceased testator sue to recover his estate from the universal legatees, alleging that the last will of the deceased was null and void for certain causes of nullity which are set forth in the petition.
    Judgment is rendered decreeing the will valid, and the title of the'universal legatees, or of1 '• those holding under them, to the estate sued for, a good one, the latter having been made parties to the suit. ,
    After this decision another suit is instituted by the legal heirs against the executors alone, propounding the same causes of nullity as before, and praying that the order probating ‘ the will be annulled and set aside, and the will declared null and void. The owner of the estate, by title derived from the universal legatees, who was a defendant in the former suit, intervenes in this last suit and resists, the pretensions of the plaintiffs on the same grounds as before.

      Held, that the judgment in the first suit could be pleaded as res adjudicate to the demands of » the plaintiffs in the last or preseut one, ‘and that this plea was properly sustained.
    APPEAL from the Ninth District Court, Parish of Concordia. Sough, J.

      Geo. S. Sawyer for Plaintiffs and Appellants :.. . . ,
    In consequence of the intervention of Ober, tbe case consists of two branches; yet there are, but two questions involved in this appeal, viz; prescription and res judicata.

      1. There is iio'prescription known to the law'which bars an action to avoid the illegal pro* bating of ,a testament; the proceeding binds nobody not a party to the eame. 2 An. p. 743; 13 An. p. 375 ; 4 An. p. 527; 11 Rob. p 196; IRob.p. 116* 6 An.p. 104; 25 An. p. 85,
    2. No prescription bare aa action to avoid a testament on the ground of a “ secret" eubsti* tution or fidd commiseum'; it contravenes a prohibitory law. 0. 0. Arts. 1520, 1491, $ C. -N. Art 119; Provost vs Provost, 13 An. p. 375. “ Quod ab initio uitíosum e&t non potest ■ tractu temporiq convalesced."

    3. No prescription can cure the absolute nullity of a pretended title to property acquired at a bankrupt sale through collusion aud fraud, such as the concealment of personal prop* erty in the hands of this purchaser by the bankrupts in their surrender, the false ac* knowledgtnent of indebtedness by the bankrupts to the interveuor Ober, and the sup* pression of just credits due by him. See answer to Ober’s intervention, Roe. pp. 214, 246 * Bankrupt Law and Pract. in Bankruptcy, 5th ed. by Bump, pp. 442, 444; Kerr on F. aud M., pp. 247, (Sos. 7 et seq.) 284, 442, 444.
    4. , These peremptory exceptions being in the nature of demurrers, must be tried ou the alie* . gations of plaintiffs in their pleadings, unless specially disproved by defendant’s evidence. 9 An. p. 265; 14 La. 421; 12 An. 190 } 13 An. 138, 177, 205; 14 An. 137; 2 Ken. Dig. p. 1169., (No. 2.)
    5. The plea of res judicata cannot be maintained ; the judgment in the former suit was not for the same thing; the demand was not founded on the 'same cause of action. This suit is not between the same parties, nor formed by them against each other in the same cat pacity. C. C. Art. 2286. The two suits did not originate in or before the same courts or court of concurrent juiisdiotíon. C. P. Art. 335, (C. C. 2); 5Rob.p.l5> 2An.p.840j 3 An. p. 531; 24 An p. 331.
    6. Points not raised or passed upon in the former suit are not res judicata in the latter.
    The question raised by Ober’s intervention in this suit, as to the validity of his bankrupt-title, was not at issue by the pleadings in the former »uit. 9 hi. 521 j 5 An. 105; 7 S. 430 * 17 La. 92; 3 Rob. 171; 1 Ken’s Dig. p 764, (Nos. 13, 20); 21 An. 355 ; 22 An. 610 ; 24 An. p. 332, strictly in point.

      F. X). White, J. G. Leach and F. L). Saunders for Defendants and Intervenov, Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion contains the following grounds :

1. That defendant abandoned his first appeal, and could not legally take a second appeal.

2. That the transcript of appeal Was not seasonably filed.

First. The first appeal taken by plaintiffs was made returnable to this Court on the second Monday of February, 1881, the return day fixed for appeals from the Parish of Concordia, where the ease was tried. The transcript was filed at that term of this Court, but dismissed on motion of the appellee, on account of a defective transcript. The appeal was devolutive, and within the year from the date of the original order granting the appeal, the plaintiifs applied for and obtained a second appeal.

It is contended that' the failure of the Appellants to perfect their first appeal and its consequent dismissal, showed an abandonment of the appeal, and should be so construed. We do not think so. Th© abandonment, of an appeal to debar a subsequent appeal must be a voluntary abandonment. It would be a forced construction of the law on the subject to hold that an irregularity in bringing up an appeal, even though it resulted from an error or fault on the part of the appellant, constituted a voluntary abandonment of his appeal, express or constructive. This is negatived by the fact that, upon the dismissal of the appeal, the appellants proceeded to take and prosecute another. The second appeal, being taken within the year prescribed for devolutive appeals, was in time.

Second. The second appeal, the present one, was made returnable on the second Monday of February, 1882. At that term of Court and ■within the legal delays the appellants applied for an extension of time, which was granted, quoting from the order, until the next term of this Court sitting for the trials of appeals from the Parish of Concordia.”

The first day of that term was the 12th of February, 1883. The transcript was filed on the 14th, and we think in time. It was within the term. A fair construction of this word term,” which the extension covered, would be the time within which an appeal so returnable could be filed, and would include the return day and the three subsequent days of grace.

An appeal should not be dismissed unless the right thereto has been clearly forfeited, and in case of doubt, the appellant should have the benefit of it and the appeal maintained.

We have been pointed to no authority that would justify the dismissal of the appeal on either ground urged. The motion to dismiss is therefore overruled.

On the Merits.

This is a suit by the heirs of Jacob Hoover against the defendants, as executors of his last will, to set aside the order probating the same, revoke the letters testamentary issued to them, and to annul said will. As it is important., for its bearing on our conclusions, that the exact character of this action should be known, we quote from the prayer of the petition, that the order or decree admitting the said will to probate be annulled, that the letters testamentary be revoked, and that the will itself be decreed to be null and void, for the reasons and on the grounds alleged by your petitioners.” The suit was instituted in 1873.

There were pleas of res adjudicata and prescription filed by the defendants, which were sustained by the Judge of the first instance and the suit dismissed, and from this judgment the appeal is taken.

The plea of res adjudicada is founded on the following facts and proceedings:

Jacob Hoover died in the Parish of Concordia in 1859, leaving a large estate. The same year, and a short time previous to his death, he made a last will in the nuncupative form by public act, constituting Zebulon York and Elias J. Hoover his universal legatee's, and appointing them testamentary executors. ' The will was. duly probated.

The'same" year'tlie heirs at law of" said 'decedent instituted suit against the universal legatees to annul the will and' recover the'estate.’ In the petition and amended petitions in the ease' many grounds of liullity are set up, unnecessary here'to enumerate. To show what was’ demanded in the suit and ascertain its precise' character, we quote from the prayer of the petition as follows :

“That petitioners be adjudged to be the joint heirs of said Jacob Hoover ; that the said pretended nuncupative will by public act * * be decreed tobe null and void and vesting no title whatever in said York and Hoover,”' etc.

During the pendency of this suit York and' Hoover, the universal legatees, surrendered in bankruptcy ; the plantations devised them by the will were sold' at bankrupt sale, and the assignee in bankruptcy and the purchasers, of the property at the sale, one A. Gr. Ober and* others, were made parties to the suit.

The' suit was finally determined on appeal to this' Court in 1872, being reported in 25 An. 375, wherein all the facts connected with this litigation are given in detail and at length, and to, which we refer as furnishing a fuller statement of all matters connected with this controversy than we deem it necessary now to give.

In that opinion the Court recite tbe grounds of nullity urged against the will, both as relating to the form and the extranepus causes of liullity propounded in the suit, and the Court expressly declares that all .the grcjunds of nullity urged are without force, and finally say,' quoting from the opinion, “ oar conclusion is, that York and Hoover acquired by the will of Jacob Hoover a good title.to all the property left by him,” and by the decree rendered, the title to the property was confirmed in those holding under York anfi Hoover, an.d who had been’, made parties to tbe suit as stated.

The next year after this decision was rendered the present suit was' instituted, the object and character of which we have stated above;.' We.have.gpne carefully over the pleadings iu both eases, and we find" tbé grounds of nullity against the will asserted therein to be substantially the saíne. These various grounds urged in the first "case are embodied in the original and several amended petitions, and are substantially repeated in the last—the present suit.

This view would seem to support at least one requisite of the plea of res adjudicata urged in bar of the instant suit—that of the same cause of action. It is, however, contended by the plaintiffs’ counsel that such is not the case; that there is not that identity in the cause of action as to make good the plea. That the former suit was a petitory action, and the nullity of the will was only an incidental or collateral issue, whilst the present one is a probate proceeding directed against the executors of the will, and instituted originally in a different court from the other suit, the present one having been brought in the Parish Court and the former in the District Court.

It is obvious that the rights of the parties, or their respective claims to be determined in both suits, were dependent solely upon the validity or invalidity of the will in question. That was the main issue in' both cases. In the first suit by the heirs for the recovery of the estate, the court was not only competent to pass on this question of the validity vel non of the will, but was compelled to do so, in order to determine whether the estate should go to those seeking to recover it or remain in the possession of those holding, possessing and claiming it under the will. This all important issue, this pivotal question, the Court of the highest resort did decide in the former suit. That judgment, whether it commends itself to our approval or not, was the judgment of a competent court having complete jurisdiction over the subject matter determined, and that judgment upon this issue was adverse to the plaintiffs in that case.

It is again urged that the parties to the two suits were not the same. That some of the heirs of Hoover were not parties to or represented in the former suit.

It appears that two of the heirs of Hoover, original parties td the first suit, one as the plaintiff and the other as intervenor, died during its pendency. The testamentary executor of one of them became a party to the proceeding and the attorney for the absent heirs of the other deceased was also joined therein.

It is contended that these original parties were not legally represented by these appearers. We do not find it necessary to determine this point, in view of the plea of prescrix>tion filed herein. If they were legally represented, then their rights were finally adjudicated upon by the judgment rendered. If they were not, then the plea of prescription must hold good as to their claims prosecuted in this suit in the names of their heirs, inasmuch as the prescription of five years, declared by Art. 3542 of the Code against actions for the nullity of testaments, was not interrupted as to them by the former suit. That suit, as stated, commenced in 1859, and the present one in 1873, and more than five years elapsed after the death of these original parties before the institution of the present action.

It is, however, contended that this prescription does not apply to some of the causes of nullity propounded in this suit. It is unde-' niable that it applies to nullities of every kind and description, when urged against parties claiming and holding possession under the will.

The defendants originally in the first suit were York and Hoover, sued as universal legatees. Before the termination of that suit, as will be seen from the statement of facts premising this opinion, they ceased to have an interest in the suit for the reason that they became divested of their ownership of the property in controversy through their surrender in bankruptcy and the bankrupt sale mentioned, and the purchasers at such sale were made defendants in the suit, and became the only real defendants therein, and when the judgment was rendered in the case were the only parties in interest to be affected by the judgment.

The present suit was commenced against York and Hoover, as executors of the will, but the real party in interest resisting the claims and pretensions of the plaintiffs herein is A. G. Ober, the intervenor in the ease, and one of the defendants in the former case, and representing in this all the interests of the real defendants in the former one.

This establishes the identity of the real parties in interest defending the two suits.

The final judgment in the first suit was a judgment in favor of Ober and his co-defendants, owners of the property in controversy, and the judgment of the District Court, now being reviewed on this appeal, was in favor of Ober, the sole owner of the property under transfer from the other purchasers at the bankrupt sale, and co-defendants with him in the former suit.

For these reasons the judgment appealed from is affirmed with costs.

On Application for a Rehearing.

We have reviewed thoroughly all the grounds urged in this application. Those that specially arrested our attention as entitled to the most consideration were the denial of the identity of the parties in the two suits, affecting the plea of res judicata, and that relating to the plea of prescription.

It iras denied in the original argument that the legal representatives of Mrs. Wells and Mrs. Sprewel were parties to the first suit. In passing on this point in our original opinion, we said in substance that it was unnecessary to decide whether they were parties or not ,• that if they were not parties, that their right of action was barred by the prescription of five years before the institution of the present suit.

The counsel questions the correctness of that proposition, alleging that the character of the nullities charged in this suit against the last will of Hoover are not subject to the prescription of five years.

Having satisfied ourselves that the legal representatives of the persons named became parties to the first action, it becomes unnecessary to insist on the correctness of this proposition, and unnecessary to determine it. It is, therefore, withdrawn.

The record clearly shows that after the death of Mrs. Wells, who was a party to the first suit, as intervenor, J. H. Yeazie was appointed curator ad hoe to her heirs, who were absent, and accepted service of papers and pleadings in that capacity, and afterwards joined in an amended petitition in such capacity, drawn up and signed by the same attorney who represents the plaintiffs in the present suit.

The testamentary executor of Mrs. Sprewel, another of the original parties, joined in the proceedings and became, in.,the strictest sense, a party thereto through the instrumentality of the same attorney.

Under these circumstances there is no room to question the fact of the identity of the parties in the two suits.

Rehearing refused.


source: Caselaw Access Project

author: Pocmi, J.

license: Public Domain

text:
    No. 8729.
    Henry F. Ludowig et al. vs. Mrs. Benoit J. Ludowig Weber et als.
    The heirs of a deceased, who had disposed by testament of his share of the community, cannot recover a moneyed judgment agaiüst their mother and tutrix for community property adjudicated to her at the price of appraisement, and for revenue of community property realized during the minority of her children. Her right to receive their shares of the revenue and to administer their property rested exclusively on her tutorship, being deprived, under the terms of the will, of the right of usufruct of their share of the community. Under these circumstances, the only right of action of her children against her is for an account of tutorship.
    Por the revenue which she may realize from the succession property after the age of majority of her children, she is accountable only as a joint owner in possession of the whole property thus held in indivisión.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazaras, J.

      Fred. D. King and Henry 0. Miller for Plaintiffs and Appellants:
    The demand foc^ihe* partition of real property held in community between the mother and her childreapothe father having made a will disposing of his share in the community, carries with it as an incident her accountability for rents and revenues and the settlement of accounts arising from, the joint ownership. King vs. 'Wartelle, 14 An. 750 ; G-osselin vs. Abatt, 3 L. 549; Dickson vs. Dickson, 33 An. 1374; Aitken vs. Ogilvie, 12 An. 354.

      The adjudication of community property to the surviving spouse, under Art. 343 (338) of tbe Civil Code, is a species of salo, by which she became liable for their share of the price of adjudication. Winter vs. K. Y. Warehouse Co., 25 An. 615; Succession of Robinson, 23 An. 17.
    The mother is liable to her children for their portions, under the will of their father, of movable property of the community which she received and used. Dickson vs. Dickson, 33 An. 1374.
    The action of the children against their mother for a partition of the real estate held in common, for their share of the price of adjudication of the common property adjudicated to her, and for their share of the movable property of the community received and used by her, may be united in one demand. C. P. Arts. 251, 148; C. C. Arts. 1304, 1231, 1271, 1272, 1027.
    Such a demand is not barred by the prescription of four years; nor does any prescription run against the action for a partition as long as the real estate is held in common. Chapman vs. Woodward, 16 An. 170; King vs. Wartellc, 14 An. 750; Aitken vs. Ogilvie, 12 An. ► 354; Gosselin vs. Ahatfc, 3 L. 549; 5 ÜST. S. 150; 6 M. 281 and 411; 13 An. 609.

      J. Q. A. Fellows and A. Voorhies for Defendants and Appellees.

      Gibson, Hall & Montgomery for the Under-tutor.
   The opinion of the Court was delivered by

Pocmi, J.

The facts of this case are as follows: John Ludowig died on December 30, 1868, leaving the defendant as surviving widow, and four minor heirs, issue of their marriage, to-wit: Henry F., Frederick E,, Gustave A. and William L. Ludowig. He left a will in which he bequeathed his property in equal shares to his wife and children, and made the former his executrix.

The inventory of the community property amounted to $94,359.56, and the debts to $36,592.44. On the recommendation of a family meeting, a stock of goods, forming part of the inventory, was adjudicated at its appraised value, $32,313.32, to the surviving widow, who •had in the meantime been confirmed and qualified as executrix of the succession, and as tutrix of her minor children. She retained possession of all the other property, movable and immovable, depending upon the succession and community.

In January, 1870, the widow contracted a second marriage, and became the wife of her present husband, Anthony Weber, having been previously retained, according to law, in tbe tutorship of her minor children.

Henry Ludowig became of age on October 24, 1872 j Frederick, on tbe 11th of September, 1874, and Gustave was emancipated on December 22, 1879.

They bring this suit against their mother for a partition of the immovable property of the succession, and of such movable property as remains in kind; and for a moneyed judgment against her for their shares of the price of adjudication of the stock of goods adjudicated to her in November, 1869, and for their shares of the revenue derived from the succession property. Eor the purpose of a partition their minor brother is made a party defendant.

By way of exception and in her answer, the defendant urges that plaintiffs’ demand wrongfully cumulates an action for partition with an action for a moneyed judgment, and she denies to have collected the revenues of the property, which have been collected by Weber since her marriage with him ; and she pleads the prescription of four years, if the suit be construed to be for an account of tutorship. The judgment appealed from by plaintiffs ordered the partition as prayed for, and rejected their demand in all other particulars. . .

The action, except the feature of the partition, is avowedly for a moneyed judgment against the defendant for four-tenths of the price of the goods adjudicated to her at the price of appraisement, and of all moneys or revenue realized by her from the residue of the property. Hence, it does not purport to be an action for an account of tutorship.

But under the facts and proceedings disclosed by the record, are the plaintiffs entitled to any other action against their mother for moneys or revenue realized by her during their minority 1

Under the terms of the will, the husband had disposed of his share in the community, one-fifth of which accrued to his wife, and one fifth to each of his four children. Hence, the mother was not entitled to the usufruct of the share of the community which accrued to her children. Forstall vs. Durel, 28 An., not reported. It therefore follows, that during their minority her right to administer their property rested exclusively on her tutorship, and that all acts performed by her in their behalf, as well as moneys received by her for their account, were done and received in her capacity of tutrix.

It is, therefore, clear and safe to conclude that the only account which she owes to her children, for all acts performed by her affecting their property or interests before their becoming of age, is an account of tutorship, and that on this branch of the case they cannot recover in their present form of action. Gilbert vs. Merriam, 2 An. 160, and authorities therein cited.

Now, as the mother had not the usufruct of her children’s share in the community, it follows that, on their becoming of age, each heir became joint and undivided owner with her of all the property derived from the succession, with the right in law of demanding and being placed in possession of their respective shares. As they allowed their mother to remain in possession of all the property, her obligation towards them was that of an ordinary joint owner in possession of the whole property thus held in indivisión. She was not accountable for any revenue received by her not exceeding her share of the property. Balfour vs. Balfour, 33 An. 299; Becnel vs. Becnel, 23 An. 150.

But the record shows that, during that time, that is from the date of her marriage with Weber, she has received no- revenue, all of which has been collected- and appropriated exclusively by said Weber, her husband, and that a suit is now pending between them involving her right to recover said revenues from her husband. '■

Either in reason or in law she cannot be held to return what she has not received. The judgment of the District Judge, supported by a carefully and well prepared opinion, is correct and must not be disturbed.

Judgment affirmed.

Rehearing refused.

Bermudez, C. J., recuses himself, having been of counsel.


author: ' Poché, J.

text:
    No. 8644.
    John Frank vs. F. Hollander.
    A party who undertakes an agency for the sale of mineral waters, for which he binds himself at a stipulated price, is not liable for the payment of a consignment of such goods shipped subject to his order by his principal, in the absence of an order for such consignment from the agent.
    A plea in reconvention must lie established with legal certainty. Hence, a party who receives a consignment of perishable goods, without examination and inspection at the time of delivery, and who discovers two months later the inferior quality or damaged condition of the goods, cannot recover in reconvention the price paid for such goods, by the reason of his failure to learn the damaged condition of the goods when delivered.
    APPEAL from the Civil District Chart for the Parish of Orleans. liightor, J.
    Brawghn, Bucle & Bbikelsjpiel for Plaintiff and Appellee:
    1. The proposition as well as the assent to a contract may be express or implied. R. C. C. 1811; 19 La. 286.
    2. Where merchandise is sold by a sample, the extent of the warranty is limited to the condition of the article sold at the time of the sale. 19 An. 11.
    3. Where the commodity is by its nature subject to change or deterioration, and no fraud or concealment is shown, the buyer must show that the defect or deterioration existed at the date of the sale; or show that it was discovered as early as it was practicable to make an examination. 19 An. 11.
    4. Where it is shown that casks of mineral water cannot be transported without some breakage of the jugs, held: that these circumstances have entered into the contract; and where the actual breakage is not beyond what is usual, the vendee cannot refuse to receive the property and rescind the contract. 1 McGloin, 193.
    5. Where defendant positively refused to accept the consignment, no putting in default was necessary, as the law does not compel a person to do a vain thing. 3 La. 385: 14 An. 401 1 McGloin, 151,193^

      W. S. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

' Poché, J.

The object of plaintiff is to enforce the specific performance of an alleged contract entered into by defendant, according to the terms of the following instrument :•

New Orleans, February 4, 1879.

“ F. Hollander, F.sq., present:

Dear Sir—I beg herewith to transfer to you my agency for the sale of a mineral water known as the Wilhelm Spring Mineral Water, in Kronthal, near Frankfort-on-the Main, Germany, and on the follow-

ing conditions, viz:

Price for case of 50 quarts, marks......................16 23

“ “ 100 pints, “ ......................22 55

to be delivered free of charges to the port of Rotterdam ; insurance to be effected by you. Consular and other incidental expenses to be added on invoice, and I-will draw on you for amount of invoice at date of bill of lading, at thirty days’ sight. Drafts to be paid in U. S. currency, at the current rate of exchange for marks on the day of maturity. Your agency will extend to the States of Louisiana, Mississippi, Alabama, Texas and Arkansas; and I furthermore bind myself not to appoint any other agent or sub-agent for the sale of this mineral water in the herein mentioned States, you binding yourself to order no less than two thousand cases of said mineral water per year. These conditions to be in full force for one year from date: Either party must give the other ninety days’ notice prior to expiration of year, of any changes in the within conditions, otherwise this agreement remains in full force and effect.

Awaiting your acceptance of the within agreement, I remain,

“Yours, respectfully,

“John Frank.”

As it appears that the instrument was not signed by Hollander, plaintiff avers that the former verbally accepted the contract thus tendered, and partially executed the same by ordering, receiving and paying for two consignments of five hundred cases each of the mineral water in question.

It is then charged that, in violation of his contract, and in utter disregard of his order for a third consignment of five hundred cases of water-, the defendant refused to receive and pay for such consignment, which amounts, with charges, to $2,253.28, for which sum judgment is asked against him, and was granted by the lower court. Defendant denies the execution of the contract as charged by plaintiff, and avers that he accepted the agency tendered to him by plaintiff under some of the conditions enumerated in the instrument above transcribed, but denies that he bound himself to order and receive at least two thousand cases of the water per year, and he denies to have ordered the said third consignment, for which he disclaims any liability or responsibility.

Averring that the water of the second consignment was of a very inferior quality, entirely different from the water of the first consignment, or from the sample on which he had stipulated with plaintiff j that said second consignment consisted of water absolutely unmerchantable, which was in a great measure returned to him for that reason by his customers, defendant pleads in reconvention the amount which he had disbursed on account of said second consignment.

After a careful analysis of the evidence, which is very conflicting, we are satisfied that the defense is fully sustained on the following points:

1. That the defendant- did not bind himself under all the stipulations of the written contract tendered to-him by plaintiff, and that he positively declined the engagement to order and dispose of at least two thousand cases of water per year, and that in other respects he accepted a verbal contract containing all the other stipulations enumerated in the above mentioned written instrument.

2. That he did not order the third consignment, but that, on the contrary, he gave special directions to plaintiff’s agent in this city not to make any consignment after the second, until further orders from him. Hence, we conclude, that'he is not and cannot be held liable for said consignment, and that the lower court erred in holding him to the same.

The fact that the water was not consigned directly to defendant, but that it was shipped to plaintiff’s agent and commercial partner in this city, and the additional fact that the water was stored in the name and at the cost of the house of John Frank & Co., composed of plaintiff and of his said partner, followed by the very significant fact that plaintiff’s said agent and partner took out of the lot some twenty cases of water of the last consignment, after he had stored, the same, and disposed of them by sale and otherwise, are circumstances which point directly to the correctness of defendant’s position in 1ns defense.

On the plea in reconvention we gather the following facts from the record:

The second consignment was received, and accepted by the defendant in August, 1879, and the water, was not examined or tested by him at the time of delivery. He began using that water two months later, when several cases were found to be of inferior quality or deteriorated. The evidence shows that all these mineral waters are very much affected by heat and other climatic influences.

Hence, we are not positively informed by the evidence whether the inferior quality of the water, at the time that it was delivered to defendant’s customers, must be attributed to defective packing or original inferior water, or to natural causes of time and climatic influences. The weight of evidence supports the latter theory, in which case defendant would not be entitled to relief. But be that as it may, on his reconventional demand it was incumbent on defendant to make out his case with legal certainty, and in default of an examination of the goods at the time of delivery, he has completely lost his opportunity to substantiate his charge, that the water was unmerchantable when delivered to him and received by him.

Hence, his reconventional demand cannot be sustained.

The judgment of the lower court is, therefore, affirmed in so far as it rejects defendant’s reconventional demand; and it is reversed in all other respects. It is, therefore, ordered that plaintiff’s' demand be rejected and his action dismissed at his costs in both Courts.

Rehearing refused.


author: Poché, J.

text:
    No. 8492.
    Widow B. Avegno et al. vs. Schmidt & Ziegler.
    In. a sal© of property confiscated under the Act of Congress of July 17, 1862, all that could b© sold was a right to the property seized, terminating with the life of the person for whose offense it had been seized.
    Such proceedings and sale do not affect the rights of mortgage in favor of third persons on the property which goes to the government or to the purchaser aim onere.

    A mortgagee under an act containing the pact “ de non alienando ” can proceed against the mortgagor, as though the latter had never been divested of his title.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Albert Voorhiee for the Plaintiffs and Appellees:
    1. The effect of decree of confiscation is to divest alL interest of the confiscate©; and from, that moment the life estate is vested in the government and the ownership in the presumptive heirs of confiscatee. 92 XT. S. 202; 95 TJ. S. 711, 713; 102 XT. S. 132; see Pasteur’s case (unreported) XT. S. S. C. In which case, held: that the fee simple vests in the presumptive heir of confiscatee from the date of judgment of condemnation.
    2. The pact de non alienando is a mere private contractual stipulation, binding on the obligor, but not paramount to laws of public order or policy, which regulate the forced expropriation of property, nor to those which regulate the administration of justice, including the forced sales of property.
    3. The rights of mortgage creditor are not affected or impaired by decree of condemnation; but he cannot disregard or ignore the divestiture of his debtor’s rights by decree of condemnation, and the vested right of the government and. of the presumptive heirs.

      •4. The judgment of the Federal District Court, rejecting^ntervenor's claim on its merits, is res judicata against him in any other proceeding: having voluntarily subjected himself to the jurisdiction, he cannot complain. And, besides, this Court has the necessary jurisdiction to distribute the proceeds of sale of property which it condemns and causes to be sold. Act of Congress of 1862, Secs. 7, 8, 14; see Waples vs. Hays, IT. S. S. C.,Hov. 6, 1882; 5 Morrison's Trans. 81.
    5. One cannot charge the absolute nullity of a proceeding, and, in the same breath, assert it» validity and legal efficiency.
    6. The amnesty proclamation had no retroactive effect. See Proclamation of Amnesty, 1868.
    1 Miller <& Mnney for Defendants and Appellants:
    The jurisdiction to condemn under the Act of Congress of 17th July, 1862, to suppress insurrection, punish treason, confiscate property of rebels, etc., depends on actual and continuous seizure'and possession by the marshal of the property sought to he condemned; the failure to seize originally defeats the jurisdiction, and failure to maintain the seizure is equally fatal. Hence, if there was no such actual and continuous seizure and possession, the decree is void and can he invoked for no purpose. See 5th and 7th Sections, Art. 17, July, 1862, 12th Statute, p. 589; Conkling's Treatise, p. 233; The Joseph Segunda, 10th Wheaton, p. 312; Hudson vs. Gues.tier, 4th Crunch, p. 294.
    The absence of any jurisdiction to condemn under the act, owing to the fact that no seizure is made, may he shown collaterally whenever such a decree, void for want of jurisdiction, is set up. Bose vs. Himely, 4th Cr. 241; Thompson Vs. Whitman, 18 Wall. 466, and authorities there cited.
    Even if tli e property has been seized and condemned under the Act of 1862, and the owner is afterwards pardoned, so that the condemnation proceeding is stopped and never consummated by a sale, the proceeding thus frustrated must he deemed to have been wholly ineffective to change the relation of the owner of the property.
    But condemnation, with or without sale, under said Act of 1862, affects only the life estate of ■ the owner of the property; it -follows that no such decree, whether followed by a sale or not, can cut off the rights of creditors holding mortgages on the property; their right to seize and sell for satisfaction of the mortgage debt will be unimpaired, and subsist in full force the same as if no such condemnation had ever taken place. Sec. 12, U» S. Statutes at Large, p. 589; Joint ^Resolution, Ib. p. 627; Bigelow vs. Forrest, 9 Wall. 347; Day vs. Hicou, 17 An. 718; same case, 18 Wall. 156. . .
    Hor will a judgment dismissing the intervention of a mortgage creditor in a proceeding under the Act of 1862 at all prejudice his right to seize and sell the property under his mortgage; the legal effect of such judgment is simply, that Court has no jurisdiction to deal with the mortgage, but leaves it precisely as it stood before the proceeding. Hence, such judgment of dismissal constitutes not the slightest impediment to the suit of the mortgage creditor to seize and sell the mortgaged property for satisfaction of his debt See authorities cited above. Claims of Marcuard et a)s.r 20 Wall. 114; Ex parte Lange, 38 Wall. 177.
    It results, too, that the suit to seize and sell the property for the satisfaction of the mortgage is lawfully conducted against the mortgaged debtor as it would have heen-if the confiscation proceedings had never been begun, especially as the pardon of the debtor prevented the consummation of the proceedings. See Code of Practice, Art. 736.

      Leovy & KruttseJmitt for Morgan Estate, Warrantor:
    1. Under the Confiscation Act of Congress of July, 1862, the property sought to be confiscated must be seized prior to proceedings to condemn before a libel can be filed. It is absolutely necessary to confer jurisdiction on the court. Pelham vs. Bose, 9 Wall. 106; Miller vs. U. S., 11 Wall. 294; 11 Wall. 344 ; Pike vs. Hossel, 94 U. S. 712.
    2. There must also he a seizure and keeping of possession after the filing of the libel. To constitute a valid seizure, the marshal must have “the actual, visible possession and control of tlie thing seized, and must exclude the possession and dominion of the owner.” The Segunda, 10 Wheaton, 312; Conkling’s IT. S. Courts, (4th Ed.) p. 457. And where the jurisdiction of the court depends upon the seizure, the possession must be continuously maintained during the pendency of this proceeding. Ibid; and Adler vs. Roth, 11 Rep. 524.
    3. The court had no jurisdiction further than to seize and sell the confiscatee’s interest in the property. And the judgment is to have only this effect, though the language go further. Bigelow vs. Forrest, 9 Wall. 350; Day vs. Micou, 18 Wall. 160; Ex parte Lange, 18 Wall. 177; Marcuard Claims, 20 Wall. 115; Act of Congress, 17th duly, 12 Statutes at Large, p. 591.
    4. Appeal was suspended. Yeafcon vs. TT. S., 5 Cranch, 281. 1st Blatchf. C. C. R. p. 1.
    5. All rights were restored by the President’s proclamation. The pardon arrested and disposed of the confiscation proceedings. In this case the property had not been sold when the pardon was proclaimed, which was on the 25th December, 1868. The case was then pending in the TT. S. Circuit Court on a suspensive appeal. Even had there been no ■ appeal, and the property had been sold, and the proceeds in the custody of the court,. Avegno would have been entitled to the proceeds as an effect of the pardon. Carlisle vs. The TJ. S., 16 Wall. 147; Osborn vs. The IT. S., 91 IT. S. S. C. 474; Knot© vs. The TT. S., 95 TT. S. S. C. 152.
    6. The debtor is the proper and only party against whom proceedings can be instituted. This was the course pursued iu the Micou case, 26 An.,720; 18 Wall. 160. In this case, when suit was instituted, Avegno was the actual debtor, he was in possession, and an appeal had suspended judgment against him. But had there been judgment agaiust him, ' ‘ execution and sale, Morgan could -have proceeded as if no sale had taken place. 18 .Wall.-160.
    An act of mortgage containing the pact da non alienando authorizes the mortgagee to foreclose, by proceeding contradictorily with the mortgagor alone, whether the alienation has 1 been voluntary or by process of law. It is an agreement binding on the heirs, and they cannot contest it. 13 An. 241; 11 An. 383; 8 An. 58; 4 An. 324; 3 An. 268; 2 An. 453 ; 10R.54; 9R.283; 6 R. 58; 4R.389 ; 2R.378; 19 L. 491; 15 L. 267; Id. 571; 14 L. 133; . 13L.315; 1L.39; 2H.S.32.
    Ho question of public policy intervened, as alleged by plaintiff, because confiscation proceedings are directed against the owners of the property, and not against, the mortgage creditors. Their rights are expressly reserved.
   The opinion of the Court was delivered by

Poché, J.

A statement of the salient facts which have given rise to this controversy is necessary to a proper understanding of the issues involved therein.

On the 20th of January, 1865, proceedings were instituted under the Act of Congress of July 17th, 1862, known as the Confiscation Act,” for the condemnation of seven lots of ground in this City, as the property of Bernard Avegno.

On the 13th of April of the same year, Charles Morgan, a citizen of New York, holding notes of Avegno amounting together to $36,400, secured by mortgage on four of the lots in question, filed an intervention in the proceedings for confiscation, for the purpose of preventing the condemnation, or in the alternative for the recognition and enforcement of his mortgage rights.

On July 14th judgment was rendered, condemning the seven lots, ordering the sale thereof, decreeing that Morgan’s mortgage could “ not be acknowledged,” and dismissing his intervention.

On August 1st Morgan’s motion for a new trial was overruled, whereupon he took a suspensive appeal to the Circuit Court, where it was dismissed in March, 1872; from the latter judgment he took an appeal to the Supreme Court of the United States, when the judgment was affirmed.

In the meantime the three lots not affected by Morgan’s mortgage were sold by the marshal, but the record shows no further proceedings against the four lots subject to Morgan’s mortgage.

The appeal taken by him was apparently construed by all parties concerned to have had the effect of suspending the judgment of condemnation in so far as it affected the four lots in question.

In June, 1867, Morgan instituted suit on his notes and mortgage against Bernard Avegno, who accepted service of the petition. In-execution of the judgment rendered in that suit in the U. S. Circuit Court, the four lots in question, which were found in the possession of Avegno, were seized by the marshal and were adjudicated to Charles Morgan in December, 1868, for $50,000. In March, 1869, Morgan sold the lots to Schmidt & Ziegler.

This suit is brought by the children and heirs of Bernard Avegno, who died in 1872. They claim the property under the reversion in favor of Avegno’s heirs, under the effect of the condemnation of his property under the Confiscation Act, and they prosecute this appeal from an adverse judgment.

The defendants and the succession of Morgan, called in warranty, maintain the legality of Morgan’s proceedings in execution of his mortgage, even if the confiscation proceedings had been regular and final, and had legally divested Avegno of his titles to the property, and they charge nullity in the confiscation proceedings, finally alleging that all proceedings for confiscation then pending were abrogated by the proclamation of j)ardon issued by the President of the United States in December, 1868.

The view which we have taken of this case entirely eliminates from discussion the numerous, vexed and complicated questions of the legality of the confiscation proceedings, as well as of the nature and effect of the appeal taken by Morgan from the judgment of condemnation, in which his intervention was dismissed.

A correct interpretation of the Act of Congress of July 17, 1862, entitled “An Act to suppress insurrection, to punish treason ahd rebellion, to seize and confiscate the property of rebels and for other purposes,” as explained by a resolution adopted by that body on the same day, explanatory of said Confiscation Act, irresistibly leads to the conclusion that “ all that can be sold by virtue of a decree of condemnation and order of sale under the Act was a right to the property seized, terminating with the life of the person for whose offense it had been seized.” Bigelow vs. Forrest, 9 Wall. 339.

Hence, it was held in that case that although the claimant, under his father, was himself liable to confiscation under the Act as an officer of the confederate army, such circumstances were no' bar to Mb' recovery.

As a corollary from the main proposition, it follows logically that the rights of other parties in the condemned property could not in the least be affected by the confiscation proceedings against the offender, and that a sale made under such proceedings could not impair rights of mortgage in favor of third persons on the condemned property. In the. case of Day vs. Micou, 18 Wall. 160, this question was directly involved in the controversy, and the Supreme Court of the United States unequivocally adopted this interpretation, and speaking of mortgage rights “ bona fide” acquired by third persons on the offender’s property previously to his offense, the Court said : “ Their interests did not pass to the purchaser at the sale, and they remain unaffected by the decree of condemnation and the sale thereunder.”

In the case of Waples vs. Hays, Morrison’s Transcript, vol. 5, No. 2, speaking of the rights of the mortgagee, the Court said : “As his lien was not condemned, his rights under it would have been superior to the title acquired by Waples.”

After a careful examination and a patient study of the jurisprudence as established by the decisions of the Supreme Court of the United States, we reach the conclusion that a sale of immovable property under confiscation proceedings, in accordance with the Act of Congress, has no more the effect of impairing the rights of mortgage of third persons than an expropriation by private act, or judicial process would under our laws.

Hence, it follows that, admitting the perfect legality and binding force and effect of the confiscation proceedings against Bernard Avegno, and that he had thereby been completely divested of title to the fee, as fully as could have been accomplished by a sheriff’s sale under our practice, the mortgage rights of Morgan were not in the least affected, by this divestiture of title, and continued to attach to the property, either in the hands of the United States or of the purchaser under the proceedings, or in the indefinite ownership of the fee vested, under the Act, in the presumptive heirs of Avegno.

While plaintiffs’ counsel.strenuously contends'that the judgment of the District- Court in the confiscation proceedings, disposing of Morgan’s intervention, was a judgment on the merits and final, we do not understand him'to argue therefrom that in such a case Morgan’s mortgage was extinguished or destroyed by that judgment. The argument' would be too bold indeed, the proceeding being in rent, from the very nature of which Avegno was not a party thereto.

It is patent that, under such a state of pleadings, no judgment could have been rendered so as to be binding on the mortgagor, and hence, for want of proper parties, the mortgagee himself could not have been bound .by such a judgment.

Granting that the judgment rendered under the pleadings was intended by the Judge to be on the merits and final, it must be construed as determining nothing more than the issue involved under the pleadings as they were then composed.

The issue presented by Morgan’s intervention was twofold: 1st, the right of condemnation-; 2d, his-mortgage rights under-the proposed sale. On the first issue the decree was that the property should be condemned and subsequently sold. On the second issue the decree' was that Morgan’s mortgage could not be acknowledged,- meaning,evidently, not acknowledged as prayed for Under the pleadings, but nothing more. 1 ' '

We cannot do the injury to the Judge of that court to suppose that he intended by his judgment to pass upon and dispose of issues which were not submitted to him, and whieh were manifestly beyond' his’ jurisdiction. -• ' - 1

Should, however, the necessities of -this case require it, we would have no hesitation in. declaring that, in our opinion, the-'judgment" rendered was merely one of dismissal and was not intended to affect the merits of Morgan’s claim. It decreed that his mortgage could not be acknowledged in the proceedings then pending, and -dismissed his intervention. . -

Morgan’s rights having been unaffected by the confiscation proceedings,- and- his act of mortgage containing the clause or pact “ de non alienmido,'l:l he was authorized to proceed in foreclosing his' mortgage against Avegno, his mortgagor, in the same manner as though no divestiture of the latter’s title and ownership had ever occurred.

This rule is elementary in our ■ practice, and at this stage of our jurisprudence need not be supported by authority.

Avegno’s title' was either divested by the co’nfiscation proceedings, or it was not.

If it was, then under plaintiffs’ theory the life estate which had not been- sold was in • the government, but subject to bona fide mortgages, and under the pact “ de non alienando,” subject, with the fee as vested in the presumptive heirs, to seizur^by proceeding against the mortgagor. . , . ,

If it was not divested, then his possession of the property from 1866, as shown by the record, was the possession of the owner, and he was legally dispossessed and expropriated by the marshal’s' seizure and by his sale in execution of Morgan’s judgment.

We conclude that our learned brother of the District Bench has done justice to the parties.

Judgment affirmed.

Behearing refuséd.

Bermudez, C. J., recuses himself, having been of co.unsel.


author: Bermudez, C. J.

text:
    No. 8747.

    Succession of Jacob Hawkins.
    The capacity of a tutrix cam]ot he attacked collaterally; neither, can that of an under-tutor.
    Where proceedings are carried on for the Bale of minors’ property,'in ;the.name of a tntrix, hy an attorney-at-law of undisputed authority, and they appear substantially regular and were conducted contradictorily with the under-tutor, a-decree of sale from1 a ¡competent court is protection to the purchaser. , 1 ,. ..
    The law does not require that proof be made to the Judge before he grant^; the order for a family meeting, that tbeie exists a necessity or propriety for the sale. Tjhe members of •• the meeting area specially' constituted tribunal to pass primarily on shell'issue'. Property of minors can be sold when it is unproductive and onerous, for ifrffi then advahta- , geous that it should be disposed of. - .
    Payment of the price to a specially authorized agent of the tutrix is payment to her and concludes the minors. '
    APPEAL from the Civil District Court for tjie Parish of Orleans. Tissot, J. ' ' '

      Henry P. Hart for Plaintiff and Appellant:
    1. The absence contemplated by Article 46, C. C., vrhich resqlts.in the forfeiture of domicile, is an absence without intention to return. This Article jnust lie construed with C. C. 42, 42;’- 1 Kent, 77, 346, (12th ed.); '2 Ibid.’ 431, notii (b) ; Acts 2855, p’. 331; &3 An. 911; 30 An. 498; 7 An. 408; 13 D. 298; 2 An. 950; 15 An. 638. , . <■
    2. Under-tutor is competent to represent tutor, under power of attorney in latter's temporary absence; “ competency is the rule—incapacity the exception—and the exception must be drawn from the law itself.” Ko law declares him incompetent and the trust does not necessarily conflict with, ox its acceptance vacate the office of under-tutor. Dennen’s Digest, 853; C. C. 25, 275 et seq.; Ibf314j- 10 An. 648; JR.’S 3828; -Acts 1847, p. 115; 1 Wait, Actions and Defenses, 214; 9 An. 355. .
    3» When a family meeting duly assembled advises a sale of a minor’s property, and its reasons for so doing are stated in the process, the order homologating the deliberations and decreeing a sale is properly rendered; in this case proof aliunde is offered, which es* tablishes its correctness. Vacant and inaccessible ground belonging to a succession, which brings no revenue to and is a burden upon the minors’ estate, may legally be sold, if such sale be found advantageous to them. C. C. 339; G. C. 280, 291, 339, 340; 16 An. 422; 11 R. 509 ; 2 R. 418.
    JBT. E. Upton, and J. Tl. Spearing for Defendant and Appellee :
    1. There cau be no valid or legal alienation of the property of minors unless all the formalities of law are strictly complied with.
    2. The petition for a family meeting, to advise and deliberate upon the expediency of a sale of minors’ property, should be died by one qualified to act, and within the jurisdiction of the court. The under-tutor should be present at the family meeting, and either oppose or approve their deliberations. 10 L. 319; R. C. G- 276; 4 L. 383 ; 2 An. 941; 23 An. 167.
    3. In every succession where there are minors there must be a tutor and an under-tutor. If one could act as agent and representative of the other, there would be no necessity for these two distinct and separate offices under the law. The same person cannot be both buyer and seller. 11 M. 299 ; 4 ST. S. 267; 8 N. S. 165; 9 L. 355, 48; 14 L. Ill; 15 L. 394; 18 L. 351; 19 L. 431; 4R.205; 6R.320 ; 2An.782 ; 3 An. 533, 582.
    4. The utmost good faith required of an agent cannot take position where the principal’s interest and his own necessarily clash. 13 An. 18; 2 An. 299; 5 L. 340.
    5. The under-tutor cannot act in the dual capacity of agent and attorney in fact of the tutrix and as under-tutor, there being a clash of interests.
    6. A voluntary absence of two years from the State forfeits a domicile within the State. R. C. C. 46; 32 An. 681, 687; 9 An. 167.
    7. A tutor temporarily absent from the State must in all acts of tutorship be represented by his or her agent. R. G. C. 314.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding to compel a purchaser to comply with the terms'of an adjudication of succession property made to him, under proceedings conducted in the name of the tutrix of the minor children of the deceased.

The defense is, that the title tendered is not good and, therefore, not such as the adjudicatee is bound to accept. In support of that defense it is substantially charged, that at the time of the proceedings there was no tutrix, the widow having lost that official capacity by a voluntary absence of more than two years from the State ; that the mother, if tutrix, had no right to delegate her powers to the undertntor, who, by the mere acceptance thereof, became functus officio ; that there is no legal order of sale because there'was no necessity shown for the sale and there was no under-tutor present at the family meeting.

Averring that he should therefore be relieved from the adjudication and that the five hundred dollars deposited by him as part of the price should be returned, the defendant prays that the demand be rejected and that the succession be ordered to restore and refund to him the sum thus deposited.

I.

The capacity of the tutrix cannot be attacked collaterally. If she has b'eén’ guilty of an act for which she should be removed from the tutorship of her minor children, proceedings should be’ instituted and carried bn contradictorily with her. Until this result has been accomplished, her letters of tutorship are full protection to third parties dealing with her in her official capacity.

II.

It is unnecessary to determine whether or not the tutrix could or not have delegated her powers to the under-tutor. The proceedings for the sale were not conducted in the latter’s name, as her agent, but in her own name, by an attorney whose authority is undisputed. The under-tutor is not the one who is to receive the price of sale, for the tutrix had, about the time of adjudication, appointed another person specially to execute the necessary act of sale of the property in question. Payment of the price to that agent will bind her, and conclude the minors, whose interest she represents in the property. Neither is it necessary to state whether the acceptance of those powers by the under-tutor vacated his trust. This can be determined only on a proper issue, regularly presented. The capacity of the ■ under-tutor can, no more than that of the tutrix, be attacked collaterally. As to third parties he continues ostensibly such, until a vacancy occurs, or is provoked and declared.

III.

It was not necessary to prove to the Judge, before the granting of' the order for a family meeting, that there existed a necessity for the sale of the property. The petition contains sufficient averments, which were sworn to by the under-tutor. It is to be presumed that what evidence was necessary or useful to establish the propriety of the sale was produced before the members of the family meeting, who are the tribunal constituted to pass primarily upon such issues. The law directs that, in such cases, the reasons which have induced their conclusions be stated in the prods verbal of their deliberations. It sometimes happens, however, that such motives are not explicitly assigned and that the conclusions are briefly stated and simply concurred in by the under-tutor. This is irregular; but the presumption is, that the decision is based on the reasons set forth in the petition for the meeting, as is the case in the present instance. The circumstance that the property yielded no revenue’, and thus was a burden to the minors, was ample to justify the statement that it would be advantageous to dispose of it.

The attestation of the under-tutor to the prods verbal is in due form and made by one who continues in that official capacity, until displaced in some way or other.

In such cases a purchaser is protected by the decree of the court, if it have jurisdiction, where the prescribed formalities appear to have been substantially fulfilled.

IV.

The demand of the adjudicatee for the return of the amount deposited is inconsistent, and cannot be reconciled with his previous position. If it be true that the succession, which is solvent and under no administration for the purpose of a liquidation, be unrepresented, for the reason that the mother of the minors has ceased to be their tutrix, how can the adjudicatee ask that the unrepresented succession be ordered to return the sum which was deposited as part of the price of sale.

The title tendered is not alleged to be vulnerable in other respects. The objections urged are insufficient.

It is, therefore, ordered and decreed that the judgment appealed from be reversed -r and it is now ordered, adjudged and decreed that the rule herein taken on the 3d of November, 1882, be made absolute, and accordingly, that Frank M. Norman, the defendant therein, be condemned to comply with the adjudication made to him of the property in question, and pay the remainder of the price of adjudication, namely, seven hundred dollars, with costs of suit in both Courts.

Rehearing refused.


author: Manning, J.

text:
    No. 8611.
    Joseph Maille vs. Laurent Lacassagne.
    la a suit for damages because of a criminal prosecution, where the only witness for the plaintiff is himself, who admits there has been no loss of his business, exhibits an insignificant expenditure, and displays insensibility, a verdict for a small sum will be considered sufficiently punitory of the defendant.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      F. I). Chrétien and A. VoorMes for Plaintiff and Appellee.

      W. S. Benedict and J. L. Tisaol for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is a lawyer, the defendant a grocer. The suit is for twenty thousand dollars as damages for a malicious prosecution. A jury gave four hundred and fifty dollars. ,

The plaintiff had in charge the collection of sundry accounts of one Desea, which were sold, and of which the defendant became the purchaser. Maille continued collecting them, and in settling with the defendant wanted to retain a larger commission than Laeassagne was willing to allow. This disagreement prevented a settlement, and as Maille did not pay over, Laeassagne made affidavit that he had obtained money on false pretences. . The charge was dismissed, as it ought to have been, but unfortunately the Recorder could not then and there punish Laeassagne for his folly.

The plaintiff is the only witness for himself. He has been practising law since November, 1880 or 1881. The date is very recent, and yet his knowledge of so interesting an event is so misty that he does not fix the year with precision. He has not lost any business in consesequence of the defendant’s charge against him, and his outlay as stated in a bill of particulars has been $2.60 for newspapers, $9.75 for ear fare and extra clerk hire, and $1.50 for mail matter and telegram, and even these items are reduced upon his cross-examination to 80 cents for newspapers, 10 cents for car fare, 12 cents for postage, and 30 cents for a telegram. The whole affair is so puerile that it seems unaccountable that the counsel on each side should have wasted over twenty pages of printed brief upon it.

If the defendant had been malignant as well as irascible, or if the plaintiff had suffered in purse, reputation, or wounded feeling, the matter would have presented a different aspect. As to the last item for reparation, the plaintiff, answering his counsel’s question whether he underwent any pain, suffering, and anxiety, said he was u still undergoing a great many pains.”

If we should interfere with the verdict at all we should reduce its amount, but the defendant will probably be taught by it that the institution of criminal proceedings is not the proper mode of redressing a civil injury.

Judgment affirmed.


author: Manning, J. Todd, J.

text:
    No. 8661.
    Bernard Klotz vs. Charles Macready and Nicholas Burke, Executors.
    Grammatical or clerical errors do not vitiate proceeding», if there be'no ambiguity or'uncertainty.
    It is not needful that interlocutory judgments be signed by the Judge,,and they may be appealed from wlien they may cause irreparable injury.
    It is in time if the blank of the appeal bond where the amount is to be inserted is filled before the return day and before the appeal is brought up.
    The petition of appeal recited the name of the suit and the judgment rendered in it, from which the appeal was taken, and the citation was addressed to the appellee without adding the title “liquidator,” which had been conferred on him by the judgment, held, the citation was sufficient.
    Articles 1138 etseq. of the Civil Code, entitling the survivor of .a commercial' partnership to be appointed liquidator of the partnership by the court where the succession is opened, do not apply to testamentary successions.
    Where the executors of the last will of the deceased oppose such appointment on just and reasonable grounds, the court is not justified in making tbe appointment.
    In no caso has the surviving partner a right to such appointment where, by tbe partnership contract, it is provided that such survivor shall have a certain terra to wind up tbe business, and it is shown that during that time, though in possession of all the assets of the partnership, with full powers of administration, he has taken no step towards a liquidation of the concern.
    APPEAL from the Civil District Court for tbe Parish of Orleans. Tissot, J.

      A. J. Murphy and W. S. Benedict for Plaintiff and Appellee :
    2. The surviving partner is entitled to the appointment of liquidator of tbe affairs of the late partnership, unless he is shown to be incompetent or dishonest. Story on Partnership, See. 344.
    2. It is the duty of a liquidator or administrator to dispose, at the earliest practicable moment, of such portion» of the property committed to his charge a» may be perishable or expensive to keep. C. C. 2162, 1163.
    3. When a settlement and liquidation of the affairs of the partnership, and the respective rights of the partners cannot he arrived at, except by a sale of the property of the partnership, it is proper that the court, at tbe instance of the liquidator, should direct a sale of such property. 3 K. 48 •, 6 Ah. 484.

      T. Gilmore & Sons and J. Ad. Hosier for Defendants and Appellants:
    1. Where the articles of partnership specify a time for the “winding up” of the business after the death of a partner, the liquidation should be completed within that time.
    2. Where the surviving partner has done nothing towards the liquidation within the time allowed by tho articles for tbe “ winding up,”1 and has rendered no account to the representatives of the deceased, he should not be heard to urge his claim to the liquidation.

      Z. Where hi» administration show» that the debts of the partnership have increased within the time allowed for the “ winding up,” and that the surviving partner has drawn from the funds of the partnership in cash more than his interest in the partnership, his claim to be liquidator should be rejected.
    * 4. There is no right of survivorship other than as established by Articles 1138-9 of the Civil Code for vacant succession». Where the heir» are present, and capable of accepting, the surviving partner is not entitled to the exclusive liquidation. C. C. 1143; McKeown vs. McGuire, 15 An. 637.
    5. The surviving partner who continues the business with the partnership property stands in the relation of trustee to the heirs of the deceased, and must account for the profits made in the new business. Kent Marg. 64; Parsons on Part. 443; Story on Part. §§ 329, 341, 343, 3441 Brown vs. Detastet, Jacob’s Bug. Ch. B. 284; Ogden vs, Astor, 4 Sandf. 311.
    6. Where the surviving partner has been appointed liquidator, he is bound to dispose of the partnership property for the common benefit ‘•‘in the ordinary course of trade,’’and cannot sell it at public auction without notice to the representatives of the deceased. C. C. 1138.
    7. The real estate belongs to the partners, not as partnership property, but pro indiviso. C. C. Art. 2880, § 4; Hennen's Digest, p. 1089, Bo. 3.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

There are four grounds of the motion to dismiss:

J. ' That in the petition of appeal complaint is made of three judgments rendered in the case, while the prayer is for an appeal from u said judgment,” -without specifying which one of the three is meant.

The appellants did not specify which one was meant, because they meant all. The petition of appeal really sets out in substance the three judgments in detail, and their several dates are given. The omission of the letter s is clerical, or at most a grammatical error. Mala grammatlca non vitiat chariam is a very useful maxim.

2. That one of these judgments, appointing the plaintiff liquidator, was not signed by the Judge.

The suit is for the settlement of a partnership. The order appointing Klotz liquidator is interlocutory. That is the first of the three judgments complained of. The other two were rendered afterwards in the course of the proceedings. That judgment evidently was not tiie final one, and did not require the Judge’s signature. Code Prac. Art. 566.

3. That the blank in the appeal bond for its amount was not filled when it was filed, nor until after it had been copied in the transcript.

Tiie bond was annexed to the petition for appeal, ready for the blank to be filled when the Judge should fix the sum. It was filled before the return day, in the presence of the clerk, and with the assent of the surety. It appears in the transcript complete. The blank w'as filled in time. Had it not been filled until after the appeal was lodged here, it might have been too late. Percy vs. Millaudon, 6 La. 586.

4. That the order of sale (one of the judgments appealed from) was made at the instance of Klotz as liquidator, and be lias not been made a party to the appeal in that capacity.

Klotz was cited to answer the petition of appeal, and that petition recited that the defendants were aggrieved by the three judgments rendered in the suit, giving the name and number of it, and particularizing the judgments, The petition and the citation were served together. Tt is impossible to be in doubt as to what he was to answer. His suit is in his individual capacity. The judgment that makes him liquidator is one of those contested.

The motion is refused.

On the Merits.

Todd, J.

There are two transcripts in this case, which bring up appeals from four orders or interlocutory judgments. These are :

1. Order appointing plaintiff liquidator of the late partnership of Margaret Haughery & Co.

2. Order rendered on petition of liquidator, directing a sale of the merchandise and other movable property of partnership.

3. Order dismissing rule taken by defendants to set aside order of sale.

4. Order rendered on petition of liquidator for sale of immovables, machinery, fixtures, and debts due the firm.

The facts pertinent to the controversy are substantially and briefly these:

On the 29th of June, 1878, a partnership was entered into between Margaret Haughery and Bernard Klotz, the plaintiff, to carry on a bakery business in this City. The partnership was to continue for a period of ten years from the 1st of July, 1878, unless sooner dissolved.

It was provided in the articles thereof, quoting, that “ in case of the death of either partner prior to the date last mentioned, it was agreed that the business should be conducted by the survivor for his or her benefit, and for that of the legal represehtatives of such deceased partner, for a period of six months from such decease, so as to wind up the concern without any detriment thereto; and thereafter, the survivor should make and render a true, just and final account of all things relating to the business, and a true adjustment and division of the stock and profits thereof.”

Margaret died on the 9th of February, 1882, and the six months stipulated in the contract, as above set forth, expired on the 9th of August same year, during which time the plaintiff and surviving partner continued in charge of the business} and at the end of that time the defendants, as executors of the last will of deceased, demanded an account as provided in the partnership articles, when this suit was brought by plaintiff to procure his appointment as liquidator, and for a settlement of the partnership affairs.

The defendants, by exception and answer, opposed the appointment of plaintiff as liquidator, denying bis legal right to such appointment,, alleging that the partnership contract provided six months for such liquidation, which term had expired and had not been employed for that purpose by the plaintiff, but instead thereof, had been used by him to .conduct the business, not towards a liquidation, but as if the partnership had not terminated by the death of Margaret; and charging acts of maladministration in the partnership affairs on the part of plaintiff, both before and after her death, which it is unnecessary here to recite specifically.

Article 1138 et seq., C. C., with reference to the appointment of liquidators, where a member of a commercial partnership dies, we find in the chapter of the Code, relating to the administration of vacant and intestate successions, and from a perusal of these Articles it is very evident that they have no reference to testamentary successions. Thus, we find that it is provided by Article 1133, that the surviving partner “ shall have a right to require that this portion (portion of deceased) shall remain with his own to be disposed of for the common profit in the ordinary course of trade.” Yet the next Article substantially declares that such right is granted on the condition that the succession of the deceased partner is vacant, or all his heirs are absent and not represented.

And Article 1143, as if to make more clear the intent of the law, provides expressly that this right will not be granted if any one of .the heirs of the deceased is present and opposes it, and accepts the succession purely and simply.

In the case of McKowen vs. McGuire, 15 An. 637, where the executor of a deceased partner in a commercial business opposed the appointment of the survivor as liquidator of the partnership, it was held “ that the right of a surviving partner under Articles 1131, 1132 and 1136, C. C., (now 1138, 1139 and 1140,) to administer the partnership effects and dispose of the same in the ordinary course of trade, is not an absolute right, but depends on the consent of the heir, present or represented in the State, capable of accepting the succession purely and simply.’’

In fact, this view of the law on this point seems to be concurred in by the counsel for the plaintiff, for they say in their brief, that “ plaintiff’s claim to be appointed liquidator of the partnership of Margaret Haughery & Co. is not based upon an express provision of our law; ” but they urge his appointment substantially on the ground that the interest he has in the settlement and liquidation of the affairs of the partnership entitles him to it.

This is a question, which, in our view, is not to be determined by considerations of expediency, but by the positive provisions of the law and the jurisprudence relating thereto.

Here we find in a testamentary succession a surviving partner of a commercial partnership, claiming to be appointed liquidator thereof, and his application opposed by the executor of the estate of the deceased partner j under this state of facts, where is the authority for his appointment ? We are pointed to none; on the contrary, the law cited in opposition thereto, and its construction warranting such opposition, is virtually acquiesced in by counsel urging the claim. In the absence of such authority and in the face of the opposition thereto, and the law favoring such opposition, we can find no warraut for the appointment in question.

Independent of the Articles of the Code on the subject, there is another consideration that leads us to the same conclusion; ' It iff'th'e contract of partnership itself, which became a law unto the' parties' thereto. We have given an extract from that contract,' fróííi which it will be seep, that provision was made therein for the lfqúidatibu of the concern by the surviving partner and the term fixed for such liquidation ; for we so construe the clause above quoted, though such construction is opposed to that given by the Judge, who, in his written opinion, construes it to mean that the business, for six months after the death of one of the partners, was to be continued in the same manner as if no such death had occurred. The language of the contract evidently points to a liquidation by the survivor within the time therein prescribed. What else can reasonably be inferred from the expressions, “ that the business should bo conducted * * * for a period of six months from such decease, so as to wind up the concern without any detriment thereto,'1'1 and that the survivor “ should malee and render a true, just and final account of all things relating to the business, and a true adjustment and division of the stoele and profits thereof ?”

Under that contract the plaintiff had six months to wind up ” the concern. That time expired and no liquidation had been effected, and so far as the evidence discloses, no effort had been made by him within the prescribed time in that direction or to that end. The plaintiff presents, therefore, no legal or equitable right to enter upon another term of liquidation under an appointment of the court, in the face of the opposition thereto by the executors, an opposition not captious, but supported by good and sufficient reasons; and plaintiff’s appointment as liquidator, under the facts and circumstances shown by the record, was not justified and must be set aside.

Itfollows, as a corollary from this conclusion, that not having been legally appointed liquidator of the partnership affairs and totally without legal authority to act as such, the efforts of .the plaintiff to sell out the property of the partnership, if authorized under any circumstances, were unwarranted in this instance, and the rulings or orders of the Judge a quo, sustaining such pretensions, were erroneous.

It is, therefore, .ordered, adj udged and decreed that the several orders or interlocutory decrees appealed from be annulled, avoided and reversed, and the applications for the same be rejected, and that plaintiff and appellee pay the costs of this appeal.

Rehearing refused.


author: Todd, J.

text:
    No. 8736.
    Charles H. Lawrence et al. vs. The Police Jury of Parish of Jefferson, Right Bank.
    In a suit to recover a lot of laud by purchasers from one who had donated the land to the defendant, on the grounds:
    That the act had not been accepted by the proper party; that the conditions of the donation had not been complied with, and the act had not been properly recorded, held;
    That the donee was the Police Jury of the Parish of Jefferson, Right Bank; that the formal acceptance of the President of this body and the taking possession of the property and its continuous use by the donee, was a complete acceptance; that the building of a jail for the confinement of prisoners arrested in the parish fulfilled the condition of the the act, which was that the property should be used for parish purposes 5 that the omission to register the renunciation of the wife of the donor accompanying the donation did not invalidate the registry of the donation.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Halm, J.

      Chas. 8. Mee and A. H. Billings for Plaintiffs and Appellees :
    1. The Parish of Jefferson having two Police Juries, the Police Jury for the Right Bankwas without lawful authority to accept a donation of immovables made to the parish. O. C. 1549, 1540; Acts of 1858, p. 103 ; O. C. 1537.
    2. The seat of justice for the Parish of Jefferson having been fixed by the parish authorities in 1874, the law positively prohibited its removal thereafter: hence the donation in question was necessarily inoperative. Rev. Stats. Section 2746; 0. 0.1527,2031. The prohibition is emphasized by Article 250 of the present State Constitution. An impossible condition attached to a donation renders the donation void. C. C. 2031.
    3. The utter failure and tbe evident legal and pecuniary inability of the Parish of Jefferson to comply with the conditions of the donation, render it void. 2 An. 174.
    4. The act of donation must be registered at length in. the proper book or books in the office of tbe registrar. A certificate to the effect that such and such an act of donation was executed, and that the donor’s wife renounced, is not enough to satisfy the law. 23 An. 533; 34 An. 313, 314; O. C. 1554, 1537; 20 An. 571; 26 An. 534; 22 An. 398.
    5. The husband can make no conveyance, inter vivos, by gratuitous title, of the immovables of the community. C. 0. 2404; 21 A. 217, 218.

      J". JJ. Coleman and 8. 8, Carlisle for Defendant and Appellant:
    The act of donation is in every Fespect complete. The donee ia the Parish of Jeffers©», Eight Bank, aiad the acceptance ifl by the same authentic aet as is the donation.
    As against the donor and those holding under him registry is not necessary. C. C. 2557.
    "With an executed donation, express acceptance is not necessary. C. C. 1541.
    The wife, who appears m a donation by the husband1, and renounces her rights, is estopped! from questioning either her own or hex husband's aet. 22 A». 398.
    All parties in interest must be cited in an action to annul a contract of donation. 23 A. 388v
    The recitative part or preamble of an act forms no part of the obligations of the donee, where the said obligations are specifically declared iu the act.
    An action to annul a donation for non-performance of potestative conditions is prescribed! in five year». C. 0. 1566,3542.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs sue to recover a square of ground situated in the village of Meclianickham, Parish of Jefferson, described as square No. 8, and to annul 3 donation previously made of the property by one Dolhonde.

. The plaintiffs allege that they acquired the square or lot by purchase from Dolhonde subsequently to the date of his donation.

The answer admits the donation and possession and use of the property by the donee, and denies that any cause for its revocation exists.

This answer was filed after the exceptions to the suit were overruled, which exceptions, under the conclnsions we have reached touching the merits of the controversy, we deem it unnecessary further to notice.

The grounds relied on to annul or revoke the donation, as set forth in the petition, are substantially these :

1. That the property has never been accepted by the donee.

2. That the terms and conditions of the donation have never been fulfilled or complied with.

That the act of donation was not properly registered.

First. It is manifest, botli from the act of donation and the declarations in the deed under which the plaintiffs claim, that the donation was made to the Police Jury of the Parish of Jefferson, Right Bank. The donation was formally accepted by the President of that body, and possession taken by the donee, and continued possession acknowledged by the allegations of the petition. Such acceptance was complete.

Second. The conditions, and the only ones declared in the act of donation, are the following, quoting :

“ First. That the land hereby donated shall not be used for any other purpose except those relating strictly to the use of the parish.

Second. That if, from any future causes or enactments, their use as such be discontinued, then the ground and that only shall revert back to him, the said Pierre Leonce Dolhonde, or to his heirs, without any encumbrance whatsoever; or, in lieu thereof, the sum of two thousand ■dollars.”

The evidence shows that a jail was ereeted on the lot, which was used for the purpose of confining or detaining prisoners, which destination and use of the lot was strictly for parish purposes and a compliance with the terms of the act. There was no obligation assumed in the act on the part of the Police Jury to erect a courthouse or to establish the seat of justice for the parish there.

The donor, in the years that elapsed after the donation, never complained to the Police Jury that the property was not being properly used or was not used as contemplated by the donation, and never required that it should be put to other uses.

The parol testimony to show other conditions beyond those expressed in the writing, or the opinions of the donor respecting the same, was improperly admitted ¿ but this testimony does not establish the grounds for the revocation on which the plaintiffs rely.

Third. The donation was registered; the only omission charged in this respect relating to the renunciation of the donor’s wife annexed to the act. This omission was wholly immaterial; and even the certificate of the wife’s renunciation, which was recorded, was unnecessary.

We do not consider the point relating to the property donated being community property and the donor being without right to convey by gratuitous title only one undivided half of tbe lot, for the reason that, no such issue is raised by tbe pleadings and is urged only in argument.

We have carefully reviewed the whole evidence, and we find no ground whatever upon which plaintiffs can base a claim to recover the lot in question. Their claim is unfounded.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs’ demand be rejected at their costs in both Courts.


text:
    No. 8907.
    The State of Louisiana ex rel. N. J. Perché, Archbishop, et al. vs. F. B. Earhart, Judge ad hoc.

      A. mandamus does not lie to compel an attorney appointed Judge ad hoe to try a cause in ■which the District Judge has recused himself, when the question of the validity of the recusation, which involves that of the legality of the appointment of the Judge ad hoc, is pending, on a suspensive appeal, before the appellate court.
    ApPLICATION for a Mandamus.

      P. JS. Théard & Sons, J. U. Ildey and Béranlt & Legendre for the Relators.

      JS. If. Pugh and li. If. Sims for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus, to compel a Judge ad hoc to tate cognizance of and pass upon a case which he was appointed to determine, but which he has refused to consider, on the ground that his appointment is a nullity.

It appears that a suit having been brought before the Twenty-second Judicial District Court for the Parish of Ascension against N. J. Perché, Archbishop, et al., the Judge of that court recused himself.

Subsequently, on the suggestion of an amicus curies, the Judge rescinded the order of recusation. Thereupon, the plaintiffs in the suit applied to the same Judge and obtained from him a suspensive appeal from the rescinding order and gave the required bond.

Subsequently, the defendants in the case, noticing that the District Judge had failed to appoint a Judge ad hoc to act in his place, applied, conti’adictorily with parties having an adverse interest, for the appointment of one. After hearing, the District Judge appointed F. B. Earliart, an attorney-at-law possessing the legal requirements, who accepted the trust and qualified accordingly.

The case appearing before him for trial, the plaintiffs therein objected to his action over the same, on the ground of the nullity of his ■ appointment. The Judge ad hoc sustained the objection and refused to proceed with the trial of the cause which he had been appointed to decide.

Hence, the application, now before this Court, to set him in motion.

The defendant substantially urges in opposition :

1. That the application is made here by F. X. Leray, bishop, etc., who is not a party to the proceedings in the lower court.

2. That the decree made by the Judge ad hoc, being a judgment which can be appealed from, a mandamus does not lie in the premises.

3. That the judgment was correctly rendered, and that this Court cannot direct the trial and determination of a cause by one on whom no judicial power has been vested to that end.

I.

The petition is made on the relation : 1st, of F. X. Leray, bishop, co-adjutor and administrator of the temporal affairs of the diocese of New Orleans, vice the Right Reverend N. J. Perché, who has ceased to be such ; and 2d, of F. X. Cuppens, curate, etc.

The fact that Bishop Leray has succeeded Archbishop Perché, as stated, is sworn to and is not denied. It must then be taken for true. If Bisbop Leray be such successor, his riglit to stand in place of Archbishop Perché, in the litigation, cannot be disputed.

Even were it otherwise, the other relator, Reverend Cuppens, was and still is a party to the suit in the lower court. The application could have been made in his name alone.

II.

The view which we have taken of this matter renders it unnecessary to determine whether the refusal of the attorney appointed to try the case is a judgment which, to he reviewed, should he appealed from. .

III.

The suspensive appeal taken from the order revoking the Judge’s recusation maintains things in the statu quo. Of necessity it debars an inquiry into and determination of the question, which it involves, of the legality of the Judge’s recusation and of the validity of the appointment of the attorney to act as Judge ad hoc.

In view of the consequences which would attend the granting of the mandamus, should the recusation be hereafter declared to have been improperly entered, it is eminently proper that it be not allowed.

The application is dismissed.

Rehearing refused.


text:
    No. 8912.
    The State of Louisiana ex rel. Gus. Hunter vs. R. Brewster, Criminal Sheriff.
    The fact that a grand jury has found a hill for a capital offense is of itself a sufficient presumption of guilt to preclude any inquiry into the merits of the prisoner’s case npon a habeas corpus, or upon an application to he hailed.
    The constitutional provision that all persons shall he hailahle, nnless for capital offences, where th© proof ie evident, or fcho presumption great, is common to every Constitution this State has had, and its nniform judicial interpretation has been that the finding of a hill for a capital offence creates a presumption of guilt, sufficiently strong to preclude further inquiry' into the merits of the prisoner’s defence on an application for hail, and this presumption extends to all purposes oxcept to that of a fair and impartial trial before a petit jury.
    Application for a Writ of Babeas Corpus.

      Irionel Adams and Wm. L. Brans for the Relator.
   The opinion of the Court was delivered by

Manning, J.

Gus. Hunter, the relator, and one Kane, have been indicted for the murder of John Leahey. The two prisoners, having been brought to the bar of the lower court on the 25th of last month for trial, a continuance was asked on the part of Kane, and was granted until the 14th of the present month, May. Hunter insisted on a trial. The court refused to proceed with the trial of Hunter, for the reason that practically it would operate a severance, and the trial of both was continued until the day above named, and they were remanded to prison.

Hunter lias applied to this Court for a writ of habeas corpus, alleging that he is entitled to be bailed, because the proof of his guilt is not evident nor the presumption thereof great. To substantiate his allegation, he has introduced the testimony of a number of witnesses, taken in writing before the committing magistrate.

The provision of our present Constitution is : all persons shall be bailable by sufficient sureties, unless for capital offences where the proof is evident or the presumption great, or unless after conviction for any crime or offence punishable with death or imprisonment at hard labor. Art. 9.

The grand jury, in finding a bill of indictment, always acts upon evidence taken in secret, usually given viva voee, and never preserved. It is not pretended that the witnesses, whose testimony was taken before the committing magistrate and is offered here, are the witnesses upon whose testimony the grand jury found the bill. On the contrary, we were given to understand in the oral argument that the prisoner did not know who were the witnesses that appeared before the grand jury, and the prosecuting officer of the State stated as a reason why the names of these witnesses were not indorsed upon the bill, that it was a necessary precaution to insure their attendance and their safety. A lamentable condition of affairs truly, equally humiliating and alarming.

If we should act upon the testimony of those witnesses who appeared before the committing magistrate alone, and find therefrom that the proof was not evident nor the presumption great, we should assume that the grand jury found the bill upon insufficient evidence, or that other witnesses who appeared before them were not to be believed. The fact that a grand jury has found a bill against a person for a capital offence is of itself a sufficient presumption of guilt to preclude any inquiry into the merits of the prisoner’s case upon a habeas corpus. And this in no respect trenches upon that fundamental rule which lies at the root of criminal law and jurisprudence, that everyone is presumed to be innocent until he is proved to have been guilty.

In Territory vs. Benoit, 1 Mart. 142, where the prisoner moved to be admitted to bail after the grand jury had found a bill against him for an assault with intent to murder, the Court met it with an emphatic refusal. “It cannot be done,” said the Court. “ Bail is never allowed in offences punishable by death, when the proof is evident or the presumption great. * * * The Judges cannot help considering the finding of a grand jury as too great a presumption of the defendant’s . guilt to bail him.”

It cannot be said this ruling is inapplicable because made before a constitutional provision was adopted, such as we now have. It will be observed the Court use the identical language, afterwards inserted in our several Constitutions, and upon which reliance is placed to justify bail in the present case; All of our Constitutions have contained the same provision. Const, of 1812, Art. VI, Sec. 19; Const, of 1845, Art. 108; Const, of 1852, Art. 104; Const, of 1868, Art. 7; Const, of 1879, Art. 9.

The subject was exhaustively treated in State vs. Merrick, 10 Ann. 424, a case full of valuable instruction which to all appearance is much needed just now, where the refusal of the District Judge to bail a prisoner after he had been indicted for a capital offence was sustained. The Court there say, that although the propriety of admitting to bail prisoners accused of crime is entrusted to the sound discretion of Judges, yet the fact that the grand jury have found a bill for a capital offence is generally considered a presumption of guilt, sufficiently strong to shut out any further inquiry into the merits of his defence, and that “ no such inquiry has ever been permitted, except upon the ■ suggestion of circumstances of the most special and extraordinary character.”

The spectacle of persons, under indictment for murder, walking at large before any trial has been had, could not be seen when the discretion of the lower judges was guided and controlled by the cardinal principle enunciated so explicitly in the two cases we have cited—a principle never abraded nor modified by any decision of this Court. The law is the same now as then, and the interpretation of it has always been uniform.

Nor is it elsewhere. In North Carolina it was held, “ after bill found, a defendant is presumed to be guilty to most if not all purposes except that of a fair and impartial trial before a petit jury. This presumption is so strong that in the case of a capital felony, the party cannot be let to bail.” State vs. Mills. 2 Dev. 421.

In Iowa the Court say, a prisoner under an indictment for murder cannot, as a matter of right, claim to be admitted to bail on habeas corpus. An indictment furnishes no presumption of guilt against a prisoner when he is upon his trial, but so far as it regards all intermediate proceedings between the indictment and the trial, it furnishes the very strongest presumption of guilt.” Hight vs. U. S., Morris Rep.

And lest it may be supposed that these Courts are not controlled by an organic law resembling ours upon this matter, it may be well to state that the Constitutions of these two States, as indeed do most of the American States, contain a provision identical with our own.

After Burr’s indictment, on application to be admitted to bail, he proposed to shew that the bill had been found on perjured testimony, but Marshall, C. J., said it was inadmissible after indictment found, and refused to let him to bail.

■ In U. S. vs. Ruse, 3 Wash. C. C. Rep. 224, the defendant being indicted for piracy, his counsel proposed to introduce evidence to shew that he ought to be bailed, but the Court refused, saying, the bill of indictment being found, we do not feel ourselves at liberty to inquire into the evidence against him.”

In New York, where there is no constitutional provision on the subject, the English practice prevails of denying bail after indictment found, although the power of the Court to admit to bail in such case is not understood to be denied.

Where there has been a trial before a petit jury, who failed to agree, the rule is relaxed, because in that case the presumption of guilt, arising from the finding a bill by the grand jury, is counterbalanced by the contrary presumption arising from the failure of a petit jury to convict. But even this is not universal, for in Ohio the mere disagreement of the petit jury does not entitle the prisoner to be bailed. State vs. Simmons, 19 Ohio, 139. See the whole subject treated in Hurd on Habeas Corpus, 427.

There are other circumstances which justify admission to bail after indictment. Thus it was held in California that bail might be taken after indictment in capital cases where the public prosecutor admits that the evidence to be produced will not warrant a conviction for a capital offence, or where he admits facts from which it is evident that no such conviction can result. So when the trial of the prisoner is unreasonably delayed by postponing it from term to term. People vs. Tinder, 19 Cal. 540.

The cases here given as instances or illustrations of the circumstances, under which bail in capital cases will be permitted, shew within what narrow limits the permission is confined, and stamp the expression of this Court in 10th Annual, already cited, with, the indubitable seal of recognised authority, i. e., no inquiry into the defence will be permitted, after indictment for a capital crime, except under special and extraordinary circumstances.

No circumstances whatever appear in the application of the relator to take it out of the ordinary routine of criminal proceedings, but it was apparent in the oral argument that the words of the Constitution touching the right to bail, unless where the proof is evident or the presumption great, were supposed to have relaxed in some sort a rule of very general prevalence. This constitutional provision is not peculiar to us. It has long existed here and elsewhere, and its meaning is settled beyond, controversy.

As to the refusal of the lower Judge to put the relator on his trial at once, for the reason that it would operate a severance, it can form no ground for admission to hail, when the postponement of the trial is for so short a time as in this case, even if it could under more rigorous circumstances.

It is therefore ordered that the writ is discharged at the relator’s costs.