author: Ludbi.ing-, C. J.

text:
    No. 4097.
    E. Newman & Co. v. John Eaton and Wife.
    On the thirty-first of January, 1872, John Baton, made to his wife a dation en paiement. On the sixth of -February, 1872, the plaintiffs obtained a judgment against Eaton on a debt which was contracted before the dation en paiement. The donation by him to his wife of certain checks, mentioned in his contract of marriage, was perfected by the marriage. The money collected by the husband from the banks on said checks, as well as the price of a slave mentioned in said contract of marriage as belonging to the wife, was her property, for which she had a mortgage on her husband’s -property to secure its restitution. Before any other mortgage in favor of the plaintiffs had attached to said property, he gave it to his wife in payment of the said sum due to hor. This giving in payment was lawful.
    The property thus given to the wife by the future husband was extra dotal, because the title of the wife was not indefeasible until the marriage was consummated.
    Article 2335 C. C. declares that the separate property of the wife is divided into dotal and extra dotal. In this case it is immaterial whether the checks aforesaid were dotal or extra dotal. In either case the wife had a mortgage on the property transferred to her, and the creditor was not injured, as it is admitted that the price for which the property was transferred to the wife is a fair and full price.
    Had the husband been insolvent when the dation en paiement was made, that fact would not have prevented the giving in payment, to replace the wile’s paraphernal property alienated during marriage.
    There is no force in the objection that the wife assumed the payment of a mortgage which the Citizens’ Bank had on the property transferred to her. She took the property cum onere in payment of her claims. The plaintiffs, at least, havo no interest in raising this objection.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Hi. H. McOaleb, for plaintiffs and appellees. Albert Voorhies, for defendants and appellants.
   Ludbi.ing-, C. J.

The plaintiffs, creditors of John Eaton, sued to set aside a dation en paiement by him to his wife, on the grounds that there was no debt due the wife; that the husband was insolvent at the time he made the giving in payment, and that in the act by which the giving in payment was made, the wife assumed the payment of the debt of the husband.

There was judgment in favor of the plaintiff, and Mrs. Eaton has appealed.

On the twenty-ninth of September, 1851, John Eaton and Celeste Landry entered into a marriage contract, passed before H. L. Duffel, notary public in the parish of Ascension. This contract states that “the future wife brings in marriage as separate or extra dotal property, a slave of yellow complexion, named Sally, aged about fifteen.” It further ^states that—

“ Article 4 — In view of the future marriage, and to secure the future welfare of his intended wife, and as a token of his affection for her, the said John Eaton does hereby -make a donation to the said Marie Celeste Landry, of the- sum of ten thousand dollars, represented by three checks, drawn this day by J. H. Morrison & Co.; one, No. 2338, sum of $4000; the second, No. 416, on the Louisiana State Bank, for the sum of $3000; the third, No. 139, on the Bank of Louisiana, for the sum of $3000} all payable on demand, to the order of Marie Celeste Landry, which said checks after having been, by me notary signed ‘Ne varietur’ to identify them herewith, were handed to the future spouse, who immediately indorsed and returned them to the donor, for the purpose of collecting them to her use and benefit.
Article 5 — Marie Celeste Landry does hereby constitute the above sum of $10,000 as her dowry, and stipulates that in case of her death without issue from the present marriage, she makes a donation to her future husband of the amount thus constituted by her in dowry.”

On the thirty-first of January, 1872, the husband made the dation en paiement. On the sixth of February, 1872, the plaintiffs obtained their judgment against the husband, on a debt which was contracted before the dation en paiement.

We think the donation of the checks mentioned in the contract of marriage was perfected by the marriage} that the money collected from the banks on said checks belonged to the wife, and that the money thus collected by the husband, as well as the price of the slave sold and received by him, was the paraphernal property of the wife, for which the wife had a mortgage on her husband’s property to secure its restitution. Before any other mortgage against the husband had attached to the property, the husband gave it to his wife in payment of the said sums due her. It is evident that if the wife had recorded her mortgage on the day the giving in payment was made, her mortgage would have attached to the property, and she could have sold the property under her mortgage to satisfy her debt, without giving just grounds to her husband’s creditors to complain. We think it equally clear that he could make the giving in payment lawfully.

We say the property given to the wife by the future husband was extra dotal, because the title of the wife was not indefeasible until the marriage was consummated.

c‘ Whatever in the marriage contract is declared to belong to the wife, or to be given to her on account of the marriage, by other persons than the husband, is part of the dowry,” etc. 2338.

Therefore, the property which is declared to be given to her in consideration of the marriage by the husband, is paraphernal.

Article 2335 declares that the separate property of the wife is divided into dotal and extra dotal. In the case now under consideration, it is immaterial whether the checks were dotal or extra dotal} in either event the wife had a mortgage on the property transferred to her, and the creditor was not injured, as it is admitted the price for which the drawn on the Merchants’ and Traders’ Bank of New Orleans, for the property was transferred to her is a fair and full price. C. C. 3319; 2 An. 834.

The evidence in the record does not satisfy us that John Eaton was insolvent at the date the elation en paiement was made; but had he been, that fact would not have prevented the giving in payment to replace the wife’s paraphernal' effects alienated during marriage. Article 2446 C. C. expressly authorizes the giving in payment, when the spouses are judicially separated in property j and to entitle her to this separation she must allege and prove the embarrassment of the husband.

Neither is there any force in the objection that the wife assumed the payment of a mortgage which the Citizens’ Bank had on the property transferred to her. She took the property cum onere in payment of her claims. The plaintiffs, at least, have no interest to raise that question.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment in favor of the defendant and appellant, rejecting the plaintiffs’ demand with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 5648.
    Mrs. A. M. Barrow et al. v. J. H. Stevens, Sheriff, et als.
    By the marriage contract of plaintiff with her husband, the community was modified so as to exclude the Blackwater plantation and its fruits from the community. This was permitted by article 2421 C. C. The cotton seized was raised on the plantation, and the horses also seized were by destination a part of the Blackwater plantation. Hence the injunction was lawfully taken and must be perpetuated.
    APPEAL from the Seventh Judicial District Court, parish of West Feliciana. Bowes, J.

      Samuel J. Powell, for plaintiffs and appellants. W. W. Lealce, for defendants and appellees.
   Ludeling, C. J.

In 1869 the plaintiff was married to C. M. Barrow, the defendant in execution. Just before their marriage they entered into a marriage contract in which it was stipulated that the plaintiff should retain the control and administration of her property, and it was particularly stipulated that “the Blackwater plantation and its revenues should in no manner be subject to the debts of the husband.” In 1874, under an execution against C. M. Barrow, ten bales of cotton and two horses were seized as his property. The plaintiff enjoined the sale, claiming that the cotton was raised on the Blackwater plantation, and that the horses were purchased with her money for the use of the place, to which they were attached.

The injunction was dissolved with damages on the ground that the cotton and horses belonged to the community of acquets and gains. The plaintiff appealed.

The evidence shows that the cotton was raised on the Blackwater plantation, and that the mare was bought for the use of the place with the means of the wife, and the other horse was the foal of said mare, raised on the place. The question for decision is, was the Blackwater plantation, or the cotton raised on it, community %

We think not. By the marriage contract the community was modified so as to exclude the Blackwater plantation and its fruits from the community. This was permitted by article 2421 C. C. The horses were by destination a part of the Blackwater plantation.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment perpetuating the injunction, with costs of both courts.

Rehearing refused.


author: Wyly, J. Taliaferro, J. Wyly, J.,

text:
    No. 5569.
    Succession of William Bobb-Ernest Merilh v. W. L. Hodgson, on Injunction herein and on Opposition to Application for Dative Executor.
    The motion to dismiss is overruled. The questions at issue in this ease are not of ordinary but of probate jurisdiction, and article 88 of the constitution provides that in all probate matters, when the amount in dispute shall exceed five hundred dollars exclusive of interest, the appeal shall be directly from the parish to the Supreme Court.
    In the exercise of its probate jurisdiction the parish court can sell succession property, as was attempted in this case, because it is a power essentially necessary in the settlement of successions, and as an incident to the right to sell, the parish court has jurisdiction to enforce the remedies provided by law against a bidder who refuses to comply with his bid.
    A sale a la folie enchere is a lawful sale which the parish court may make in the exercise of its probate jurisdiction; and an injunction of a sale of this character is as much probate in nature as an injunction of the first sale, or the first offerings.
    Service of the order to give security was made in this case upon the attorney at law of the testamentary executor, said executor being at the time absent from the State. This is sufficient.
    When the testamentary executor of the deceased fails to give security, or from any other cause can not discharge the duties of his office, the judge must appoint the public administrator of the parish. The act of 1870, establishing the office of public administrator,, repeals former laws on the subject.
    APPEAL from the Parish Court, parish of Jefferson. Hyman, J.

      O. H. Schmidt and N. Oommandeur, for plaintiff in injunction and defendant in opposition, appellants. 12. Shackleford, for defendant in injunction and opponents, appellees.
   On Motion to Dismiss.

Wyly, J.

In the succession of William Bobb, the parish judge ordered the sale of two hundred and twenty shares of stock of the Louisiana Ice Company belonging to said succession. Ernest Merilh became tile purchaser at the sale, and failing to pay over the price, $3905, was ordered by the court in a proceeding by rule to comply with his bid. Failing to do so, the defendant, an auctioneer, charged with the duty of selling the property, proceeded to sell the stock a la folie enehere, when the plaintiff sued out an injunction to restrain the sale, on the grounds stated in the petition. The court dissolved the injunction, and plaintiff appeals.

The defendant moves to dismiss this appeal, because the questions at; issue are of ordinary and not probate jurisdiction; that an appeal will lie to the district court, but not to the Supreme Court in a case like this.

Article 87 of the constitution provides among other things that: All successions shall be opened and settled in the parish courts.” * *

Article 88 provides that “ In all probate matters, when the amount in dispute shall exceed five hundred dollars, exclusive of interest, the appeal shall be directly from the parish to the Supreme Court.”

In the exercise of its probate jurisdiction the parish court can sell succession property, as was attempted in the case at bar, because this is a power essentially necessary in the settlement of successions. As an incident to the right to sell, the parish court has jurisdiction to enforce the remedies provided by law against a bidder who refuses to comply with his bid.

A sale a la folie ench&re is a lawful sale which the parish court may make in the exercise of its probate jurisdiction ; and an injunction of a sale of this character is as much probate in nature as an injunction of the first sale, or the first offerings.

In either case the proceeding has a probate character, because the power exercised is essential to the settlement of the succession.

The motion is therefore denied.

On the Merits.

Taliaferro, J.

The transcript contains the proceedings had in two distinct cases, one of which is an injunction suit, and the other an opposition to an application for the dative executorship of the succession of William. Bobb. Much of the evidence offered in the latter case having been introduced in the former, it was agreed by the parties that one transcript would suffice for both cases.

In the first of these cases, Ernest Merilh enjoins the execution of an order of the court condemning him to comply with the terms of adjudication to him of two hundred and twenty shares of the capital stock of The Louisiana Ice Manufacturing Company, sold at public auction at the instance of the executors of William Bobb, on the twenty-seventh of October, 1874. Merilh, it appears, after purchasing the stock of the estate at this sale, declined, paying for it on the ground that the estate of Bobb was without an executor; that Widow Bobb, who had been appointed executrix, and William Bobb, executor, had become fundi officiis, from their failure to give security for the faithful discharge of their duties, which security they had been required to give by an order of court rendered upon the sworn application of A. Rochereau & Co., creditors of the estate to a large amount; that he could not safely make the payment of the sum bid by him at the sale of the stock except to one authorized to receive and give acquittance. We find from the record that the order for the executors to give security was rendered on the twenty-ninth of October, 1874; that the second sale of the stock at the folie enchére of Merilh was advertised by the auctioneer to take place on the twelfth of December following. The service of the order requiring the executors to give security, was made, as contended by the plaintiff, on the third of November following the order, so that the thirty days within which the executors were required to furnish security, expired on the third of December, and consequently the executors having failed to comply with the order, there was no executor in office on the twelfth December, the day in which the second sale was advertised to be made. It is further contended on the part of the plaintiff that he had ten days after the rendition of the judgment on the thirtieth of November, ordering him to comply with the terms of sale, within which to take a suspensive appeal, as that judgment required a specific performance, and consequently the auctioneer could not legally advertise the second sale until after the expiration of that delay. The plaintiff states in his own testimony that he was satisfied with the title to the stock, and that he liad on deposit in the Canal Bank thirty-nine hundred and five dollars, the price of the adjudication, to pay for it, and introduced in evidence his bank book to show it. He states further, that when called upon by the auctioneer to make payment, he told him he would wait ten days to make payment, as Mr. Bobb had in the mean time to give security.

In order to determine this controversy it is important to inquire whether the service of the order to give security was properly served upon Charles T. Bobb, the executor. The judge a quo decided that he was not'legally cited, and therefore he was not divested of his office, although the executrix was divested, as personal service was made upon her. Service in the case of the executor was made upon his attorney at law, the executor being at the time absent from the State.

The article 1677 of the Revised Civil Code, making it obligatory upon executors to give security in certain cases, declares that: It shall be the duty of the judge, without further proceeding or delay, to issue his order commanding the testamentary executor to give the required security within thirty days from the service of the order. Should the testamentary executor, if present in the parish, or in his absence, his agent or his attorney at law, fail to furnish the required security within the delay allowed, it shall ipso facto work an immediate removal of the testamentary executor, and the judge shall appoint a dative testamentary executor.”

The purpose of the law seems clearly to be that in the absence of an executor who has been ordered to furnish security within thirty days, his agent or his attorney at law may provide the security for him. A service or notice of the order to his agent or his attorney at law would seem to be equivalent to notice to himself. The plaintiff, moreover, holds that notice served personally upon Mrs. Bobb, the executrix, exercising jointly with him the functions belonging to the office of executor, was sufficient notice to him; that service of the order requiring both executors to furnish secuirty, made upon one of them, present in the State, was a sufficient service of the order on both. However this may be, we think that the notice in this case made upon the attorney at law of the executor was sufficient. We think, therefore, there was error in the decree of the lower court dissolving the injunction.

The other branch of this case constitutes the opposition of Mrs. Bobb and Charles P. Bobb to the application of Pierre Crabites to be appointed dative executor of William Bobb, deceased. This application is predicated upon the assumption that the executor and executrix named in the will were divested of their offices on the third day of December, 1874, as on that day the thirty days expired within which they were ordered to furnish security, and no compliance with the order was made by them. The applicant, Crabites, filed his petition to be appointed executor on the fifth of December, 1874, alleging himself to be a member of the firm of A. Roehereau & Co., who are creditors of the estate of William Bobb in a sum exceeding fen thousand dollars. His application was opposed by the Widow Bobb and Charles P. Bobb on these grounds:

First — That opponents are the testamentary executors of the decedent.

Second — That they have not been removed from said office by operation of law or otherwise.

Third — That the order of the twenty-ninth of October, 1874, requiring them to give security, had never been served on them in the manner required by law.

Fourth — That if they should fail, when legally served, to give the security, then the succession would have to be placed in the hands of the public administrator as dative executor.

Fifth — That the applicant is not a creditor of the succession, and has no right to the administration thereof, even if a creditor.

The opposition of Charles P. Bobb to the appointment of Crabites was maintained, and the application of the latter was rejected, and thereupon he appealed.

The first three grounds have been considered. The fourth, we conclude, will preclude the applicant from succeeding to the office of executor. The act of 1870, establishing the office of public administrator, section 3, provides: “That in all testate successions, when from any cause the executor can not discharge the duties of his office, the judge shall appoint the public administrator of the parish dative testamentary executor.”

This act repeals former laws on the subject, and restricts the judge in making appointments of dative testamentary executors to the public administrator. The plaintiff’s application must therefore be rejected.

It is therefore ordered that the judgment of the lower court dissolving the injunction be annulled and reversed. It is ordered that the injunction be perpetuated. It is ordered further that the judgment rendered on the opposition of Mrs. Bobb and Charles P. Bobb, to the application of P. Crabites to be appointed dative testamentary executor, so far as it decrees in favor of Charles P. Bobb, and retains him in the office of executor, be annulled and reversed, and that in other respects it be affirmed. It is further ordered that the costs in the injunction case be paid by the defendant and appellee, and the costs of the application for the office of dative testamentary executor be paid by the applicant.

Wyly, J.,

dissenting. If the bidder at an auction sale refuses to pay the price of adjudication, as Merilh did in this case, the auctioneer is authorized to sell the thing, after a delay of ten days, at his risk. Revised Code, article 2611. The order requiring Merilh to comply with his bid, obtained from the court at his request, was unnecessary. It was the duty of Merilh to comply with his bid. As the auctioneer had the right to make the sale he had authority to receive the price and convey the thing to the purchaser. The only interest Merilh had was to get a title to the stock of the Louisiana Ice Company adjudicated to him. He was utterly without interest to raise a controversy in regard to the title of the testamentary executors to their office. There is no doubt that the auctioneer could have given him a good title; and in my opinion this controversy raised by him is irregular and officious.

I dissent in this case.


author: Morgan, J.

text:
    No. 4086.
    Josephine H. Ames v. James Hale.
    In this instance there are two acts introduced which roust be c'onsiderod as parts ot a whole and which were intended to be a full and final settlement of all the business relations of the parties. Plaintiff can not separate the different portions of this transaction, adhering to those parts which are favorable to her and repudiate those which she considers ■ unfavorable. She must, unless she had shown better reasons than she lias, take all or leave all.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      J). O. Ldbatt, for plaintiff and appellant. Lea, Finney & Miller, for defendant and appellee.
   Morgan, J.

Thomas Hale seems to have had many transactions with James Hale, resulting in an indebtedness from Thomas to James.

James Hale was the legatee of Peter Hale, to whom Thomas Hale owed a sum exceeding $90,000, exclusive of interest.

Thomas Hale died. His succession is represented by his widow, the plaintiff, as widow in community, executrix of his will, and tutrix to their minor childreu.

On the sixteenth of December, 1867, plaintiff presented a petition to the Judge of the Second District Court of New Orleans, in which she alleged that the debt due to James Hale, as the legatee of Peter Hale, amounted to $125,000; that the debt was secured by mortgage on certain property belonging to her deceased husband which had, a short time before, been appraised at $36,000; that James Hale also had a claim against her deceased husband for $25,000, the price of a house in Matamoros, sold by him to her husband. She represented that James Hale had offered to aecept in payment of both these claims, amounting together to $150,000, the property mortgaged to secure the amount due to Peter Hale. She averred that this settlement would be greatly to the interest of the succession which she represented, and she prayed that a family meeting, composed of the friends of the minors, might be convened for the purpose of giving their assent thereto. The family meeting was held and they approved of the proposed arrangement. Their proceedings were, homologated, and in accordance with their recommendation the property mortgaged was, by public act, passed on the twenty-first of December, 1867, transferred to James Hale, who gave a full and entire discharge of the amount therein expressed. Thus with property estimated at $36,000, the succession was relieved of an indebtedness exceeding $150,000.

On the twenty-fifth of May, 1861, Thbmas Hale, by public act, acknowledged himself indebted unto James Hale in the sum of $60,000, for which he furnished his three promissory notes for $20,000 each, payable in one, two and three years after date. To secure their payment he mortgaged certain valuable property in this city.

On the twenty-first of December, 1867, the plaintiff, acting in her capacity as widow in community, testamentary executrix, and tutrix to her minor children, and the defendant, appeared before a notary public, and there she acknowledged that there remained due to the defendant, on account of the indebtedness above described, $24,309 70 in gold, and the defendant, declaring that he was desirous of facilitating the plaintiff and the heirs of her late husband in the liquidation of the above mentioned debt, agreed to postpone the payment of the same so as to make the sum due payable in two installments, one of $12,154 86 payable in four years, and the other for a like sum payable in five years from the twenty-eighth November, 1867, the indebtedness to bear interest at the rate of eight per cent, per annum, payment of the interest for the first two years being postponed until the twenty-eighth November, 1869.

It will be observed that the two notarial acts between the parties were drawn up by the same notary and signed on the same day; that on that day the widow in community and the succession of Thomas Hale were indebted unto the defendant in a sum exceeding $175,000, and that the whole of it was reduced to $50,000, the payment of $26,000 being postponed for four years.

The evidence in the record satisfies us that these settlements were the result of long negotiations between the parties, in which the plaintiff was represented by able and conscientious counsel; that the two acts must be considered as parts of a whole, and that they were intended to be a lull and final settlement of all their business relations. That the settlement was in the aggregate largely beneficial to the plaintiff and to the interests which, as executrix and tutrix she represented, does not, we think, admit of a doubt.

Two years after these transactions took place the plaintiff instituted this suit. She seeks to reform the last settlement, in which she acknowledges an indebtedness of $24,309 71, alleging that the amount due, at the time the settlement was made, was only $8603 65. The excess over this sum being composed of a debt of $8118 26, which, she avers, was prescribed, and the balance being composed of compound interest. She avers that she was misled into including the above sums in her settlement through error of law and fact, and by the frauds and deceit of the defendant.

We are satisfied, from an attentive examination of the record, that the settlement which is now attacked was part of the general settlement which both plaintiff and defendant intended should be had of all matters connected with the indebtedness of the succession of Thomas Hale to the defendant, and that the two acts relating thereto, passed on the same day, are, indeed, but one act. We are also satisfied that the plaintiff knew exactly what she was doing when she signed the same; that the charges of fraud and deceit which she makes against the defendant are without any foundation to rest upon, and that the transaction, by which the succession was released from a verj' large debt, was altogether in the interest of herself and her minor children.

We do not think that she can separate the different portions of this transaction, adhering to those parts which are favorable to her and repudiating those portions which she considers as unfavorable. She must, we think, take all or leave all.

Judgment affirmed.


text:
    No. 5621.
    Succession of Stephen Duncan Linton.
    The evidence showing that Linton resided in ¡France, when and where he died, and that the only real estate he owned in Louisiana was situated in Bapides, his succession was properly opened in that parish.
    Heirs who accept with the benefit of inventory, have no right to be put in possession of the property, until after the administration thereof is closed.
    A PPEAL from the Parish Court, parish of Rapides. W. F. BlaclcA man, judge ad hoe, in the place of Judge Daigre, recusing himself.

      T. O. Manning, for the heirs of Linton, appellants. It. J. Bowman, far public administrator, appellee.
   Ludeling, C. J.

It appears that in December, 1867, Stephen D. Linton died in France; that he left a plantation situated in Rapides parish; that in the year 1868, C. M. Calvit applied to be appointed administrator of Linton’s succession. Oppositions by creditors and the public administrator, were made to said application, and in 1871 O. K. Hawley, public administrator, was appointed.

In 1872 the sisters of Linton, and residents of France, allege that they have accepted said succession with benefit of inventory; that the said Linton was not a resident of Rapides, but of New Orleans, at the time of his death, and that the court of probates of Rapides had no jurisdiction over the succession. They pray that the order appointing the public administrator be set aside. Fendente lite, Hawley died and J. M. Wells, Jr., was appointed to succeed him as public administrator. The sisters of Linton filed what they called an opposition to the appointment of J. M. Wells, Jr., public administrator, on the ground that the court of Rapides was without jurisdiction. They further alleged that, should it be held that Rapides was the .proper place to open said succession, they are beneficiary heirs, and that T. C. Manning is their attorney in fact. They pray to be recognized as beneficiary heirs, that the order appointing the public administrator be annulled, and that the property be delivered to them.

Two questions are presented for our decision :

First — Is Rapides the place where the succession of Linton should have been opened 9

Second — Can the heirs, who accept with benefit of inventory, take the property of the succession from the public administrator before his administration has been closed?

First — The evidence shows that Linton resided in Prance when he died, where he died, and that the only real estate he owned in Louisiana was situated in Rapides. The succession was properly opened in Rapides. C. C. 935.

Second — -Heirs who accept with the benefit of inventory, have no right to be put in possession of the property, until after the administration thereof is closed. C. P. 976; 2 La. 299; 6 La. 212; 3 An. 502; 19 An. 293; 21 An. 364 ; 7 R. 42 ; 10 R. 457; 12 R. 333.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 4381.
    Lagan & Mackinson v. George D. Cragin.
    If a debt be contracted by one of tbe partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction, which is proved in this case.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Sentinels Fgan, for plaintiffs and appellees. Randolph, Singleton & Browne, for defendant and appellant.
   Morgan, J.

The defendant is sued for $5233 12, for labor and materials furnished in making repairs to and fitting up the machinery on two plantations alleged to be owned by the defendant, the work having been done at the instance and request of the defendant through his agent and manager, O. P. Fisk, and also for labor and materials furnished in making repairs on the steamer Favorite, also alleged to belong to the defendant. They allege that the work and materials furnished by them were necessary to fit up the machinery used in the manufacture of sugar on the defendant’s plantations, in order to take off the crop on the same. Defendant first filed a general denial. In a supplemental answer he denies that Fisk had any authority to bind him; that he had any authority to purchase machinery or to purchase materials, or to make repairs, or to employ the plaintiffs to put up and change the machinery on his plantation, or to contract with any one for the same.

He further avers that the work which was done was badly done; that he has suffered loss in consequence thereof; that it was unnecessary, and injured rather than benefited him, and that after the “so called” fitting up of the machinery it was not as good as it was before. He denies that he ever owned the steamboat Favorite; that the expense of the repairs thereto was a debt due .by Fisk.

From the testimony of the defendant it appears that Fisk was his partner. ■ The plantations upon which the work was done were purchased by the defendant in his individual name, but when they paid for themselves they were to be owned jointly by defendant and Fisk; Fisk was to manage them, and the profits and losses were to be equally divided. This made them ordinary partners.

“ Ordinary partners are not bound in soKdo for the debts of the partnership, and no one of them can bind his partners, unless they have given him power to do so, either specially or by the articles of partnership.” C. C. 2872.

“In the ordinary partnership each partner is bound for his share of the partnership debt.” C. C. 2873.

“ If a debt be contracted by one of the partners of an ordinary partnership, who is not authorized either in his own name or that of tjie partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction.” C. C. 2874.

There is no evidence in the record that Fisk was authorized to contract for Cragin, the defendant, and the question we have to determine, under the articles of the Code above cited is, whether the work done benefited the partnership.

We think it did. The work was certainly done, and the machinery, etc., charged for is on the plantations.

As to the steamboat, we think the record shows that the defendant knew it had been purchased, and that it was being used for the benefit of the partnership. Plaintiff is, we think, entitled to recover from the defendant one-half of the amount claimed against him.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended so as to reduce the same from $5233 12 to $2616 58, and that as thus amended it be affirmed; the costs in the lower court to be paid by the appellant, the costs in this court to be paid by the appellee.

Rehearing refused.


author: Howell, J.

text:
    No. 4384.
    Heirs of John Slidell v. Germania National Bank.
    The plaintiffs in this suit are not attaching the proceedings and judgment in confiscation pronounced by the United States Court. They recognize the validity thereof, but say that the effect of that judgment and the sale thereunder ceased at the death of their ancestor John Slidell, and that’it was only his life estate that was disposed of. This is correct, and has been frequently reaffirmed by the Supreme Court oi the United States»
    APPEAL from the Fourth District Court, parish of Orleans. Theardr J.

      Clarice, Bayne & Benshaw, for plaintiffs and appellees. Hawldns, & Tharp and Billmgs & Hughes, for W. R. Fish, called in warranty, defendant and appellant. C. L. Buddeelc, for defendant, Germania National Bank.
   Howell, J.

The plaintiffs, as heirs of John 'Slidell, sue for certain property in the possession of the Germania-National Bank, and the rents thereof from thirtieth July, 1871, the date of the death of their ancestor. The bank set up possession under a lease from W. R. Fish, the owner, and called him in warranty. Fish pleaded as an exception his purchase at marshal’s sale under a valid judgment of condemnation and confiscation, rendered by the United States District Court for the eastern district of Louisiana, in the suit of the United States v. 844 lots and 10 squares of ground, which was instituted and prosecuted under and by virtue of an act of Congress, approved seventeenth July, 1862, entitled “an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels and for other purposes,” which judgment and the proceedings and sale thereunder are still in full force and effect and can not be attacked collaterally in this suit, and that the State court is without jurisdiction to question the validity of warrantor’s title or to review the decree of proceedings in the said United States Court under which he holds.

There was judgment in favor of plaintiffs and Fish appealed. His counsel says: There is but one question to be considered in determining the case, to wit: Have the State courts any power or right to-inquire into, modify or limit the decree of the District Court of the United States, sitting as a prize court ? And he invokes the decision of the United States Supreme Court in the case of the United States v. T. A. Clark, executor of John Slidell, and the heirs of John Slidell, affirming the judgment of the United States District Court in said confiscation proceedings as final and vesting in the warrantor a title in fee simple to said property.

Taking this as the only question, we are unable to concur in this position of counsel. The plaintiffs are not attacking the proceedings, and judgment in confiscation. They recognize the validity thereof, but say that under the said confiscation law and the decision of the United States Supreme Court in the eases of Bigelow v. Forest 9 Wall. 339, and Day v. Tricou, 18 Wall. 162, interpreting the said law, the effect of that judgment and the sale thereunder ceased at the death of their ancestor John Slidell, and that it was only his life estate in this property that was acquired by Fish. This is correct, and has been frequently reaffirmed by the United States Supreme Court. In the case of the United States v. Clark, executor, et als., invoked by the appellant, the sufficiency of the information, the regularity of the proceedings, the jurisdiction of the district court and the effect of the amnesty proclamation were considered and passed on. The question in this case was not raised therein, but in the case of Maeuard v. United States, decided at the same time as the said confiscation case, the Supreme Court in express terms recognized the doctrine in Bigelow v. Forest, and Day v. Micou as applicable to the purpose and effect of the sale of Slidell’s property.

Judgment affirmed.

Mr. Justice Taliaferro dissents.


author:
Wyly, J.
      Ludeling, C. J.,

text:
    No. 5663.
    William Doughty v. The Sheriff et als.
    It is manifest that the act 33 of the acts of 1865, entitled “An Act to exempt from seizure and sale a homestead and other property,” was intended to apply to seizures under execution after the passage of the law, regardless of the period when the debts were contracted, upon which the judgments were rendered. When the authors of the statute undertook to enumerate the claims which they desired exempt from the operation oí this law, the presumption is they mentioned all that they intended.
    The law is unambiguous, and, under pretext of a construction, this court can not rightfully apply a limitation upon its operation, for this would be virtually enacting an amendment to the law, or exercising legislative powers.
    If the defendants, prior to the enactment of the homestead act of 1865, had acquired a privilege or mortgage on the property in question, that right would not be impaired by the law. But this court has never decided that a judgment rendered after the passage of the homestead law, on an ordinary debt existing previously, is exempt from the operation of said homestead law.
    A state has a right to pass a homestead law of the kind mentioned in this suit, and its operation against an ordinary creditor whose claim existed before its passage, in no manner contravenes the provision of the constitution of the United States prohibiting a State from enacting a law impairing the obligations of contracts.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Dewing, J. Jury trial.
    D. J. Wedge and T. A. Moore, for plaintiff and appellee. W. J?. Kernan, for defendant and appellant.
   Wyly, J.

Plaintiff enjoined his judgment creditors from selling one hundred and sixty acres of the land seized by them, claiming it as his homestead under act 33 of the acts of 1865.

The defendants, Chase and Offut, obtained their judgments long after the passage of the homestead law, but they insist that as the debts on which their judgments are based, were contracted prior to the enactment of said law, the statute in question was not intended to apply to them; that laws should never be considered applicable to cases arising before their passage, unless the Legislature have in express terms so declared; that in the case of Robert v. Coco, 25 An. 199, relied on by plaintiff, the question was whether the homestead act of 1865 was constitutional, and it was held to be constitutional; that defendants make no such issue in this case ; they say the law is constitutional, but contend the act does not apply to obligations contracted before its passage. They also contend in their brief that this homestead law is similar to the act ot 1852, allowing the necessitous widow and her minor children one thousand dollars out of the estate of the deceased husband and father, and that statute has been construed in that way by this court in 10 An. 510, 12 An. 553, and in other cases.

Act 33 of the acts of 1865, entitled “ An Act to exempt from seizure and sale a homestead and other property,” provides “ That in addition to the property now exempt from seizure and sale under execution, one hundred and sixty acres of land and the buildings and improvements thereon occupied as a residence, and bona fide owned by the debtor having a family or mother, or father, or person or persons dependent on him for support; * * * provided the property herein declared to be exempt from seizure and sale does not exceed in value two thousand dollars; * * * provided further, no debtor shall be entitled to the exemption provided for in this section whose wife shall own in her own right, and be in the actual enjoyment of property worth more than one thousand dollars; provided further, that no property shall by virtue of this act be exempt from sale for nonpayment of taxes or assessments levied pursuant to law, nor for debt contracted for the purchase price of said exempted property, nor for money due for rents bearing a privilege on said property under existing laws.”

It is manifest that this statute was intended to apply to seizures under execution made after the passage of the law, regardless of the period when the debts were contracted, upon which the judgments were rendered. The express reservation from the operation of this law of claims for taxes and of the debt for the purchase price of the exempted property, and money due for rents bearing a privilege on said property, carries with it the implication that no other debts were intended to escape the operation of this law, it matters not when contracted. When the authors of the statute undertook to enumerate the claims which they desired exempt from the operation of this law, the presumption is they mentioned all that they intended.

There are several provisos or limitations mentioned in the law, and we do not feel authorized to add another, to the effect that it shall not apply to judgments rendered after its passage, on ordinary claims existing previously.

The law is unambiguous, and under pretext of a construction this court can not rightfully place a limitation upon its operation, for this would virtually be enacting an amendment to the law, or exercising • legislative powers.

In Robert v. Coco, 25 An. 199, the question was whether the homestead act applied to the judgments obtained after its passage on ordinary debts existing previously, and if so, whether the law was constitutional. The court held the law applicable, and also that it is constitutional.

Here the learned counsel for the defendant insists that the law is not applicable; he concedes that it is constitutional. The case at bar is identical with that of Robert v. Coco, and it must be decided in the same way. This court has often decided that privileges and mortgages can not be defeated by subsequent legislation of this character, because they are accessory obligations' and are protected by that provision of the constitution of the United States prohibiting a State from enacting a law impairing the obligations of «contracts. If defendants, prior to the enactment of the homestead act of 1865 had acquired a' privilege or mortgage on the property in question, that right would not be impaired by the law. It could be enforced notwithstanding the enactment.

But this court has never decided that a judgment rendered after the passage of the homestead law, on an ordinary debt existing previously, is exempt from the operation of said homestead law. The homestead act was not intended to impair acquired rights and to take away all remedies to contracts.

Its object was to uphold the agricultural interest of the State, to reserve from seizure a small piece of land, certain implements, work-animals, and provisions, in order that the debtor may continue his agricultural pursuit for the support of his family, for the payment of his debts, and for the discharge of his duties as a tax payer and citizen. Whatever sum he acquires beyond the exempted property is liable to the pursuit of his creditors, and whenever he ceases to occupy the exempted property as a homestead, it also becomes liable and can be seized. We regard the homestead law as but a modification of the remedy which the State, interested in the support and welfare of her citizens and interested in fostering agricultural pursuits, developing her own resources, had the right to pass, and in doing so she impaired no acquired rights of the defendants.

The restrictive clause of the constitution of the United States was never intended to paralyze the arm of industry, or to prevent a State from developing her own resources by fostering agricultural pursuits.

Much stress is laid on an obiter clietum in the case of Sabatier et al. v. Their Creditors, 6 N. S. 585, to the effect that a law passed after a contract which would exempt all the property of the obligor from payment of the debt, would be unconstitutional; it would be equally so if a portion was placed out of reach of execution, provided the portion left was not sufficient to satisfy the debt. This remark was entirely unnecessary to the solution of the question in that case, which was whether in a eoneurso in a case of insolvency, an irregular depositor who had a privilege at the time of the contract of deposit, lost it by the subsequent repeal of the law allowing a privilege to an irregular depositor.

The conclusion of the court was entirely correct; the law in force at the time of the irregular deposit gave a privilege which was an accessory obligation that could not be impaired by the subsequent repeal of the law. This court has ever held that real rights, mortgages and privileges, can not be impaired by subsequent legislation, because they are necessary obligations. But defendants who were ordinary creditors had acquired no real rights on the property in question, and the exemption thereof by the State from seizure, in no sense impaired the obligations of a contract detrimental to defendants.

In the cases of the succession of Taylor, 10 An. 510, and Milne v. Schmidt, 12 An. 553, this court construed the act of 1852, allowing the necessitous widow one thousand dollars out of the estate of her deceased husband, as not applying to creditors whose debts existed prior to the passage of the law.

Here we find the law unambiguous, containing certain exceptions or limitations to its operation, and under pretext of a construction this court can not rightfully add another exception or limitation to its operation; we find no authority to say that its operation must be restricted in favor of ordinary creditors whose claims existed before the passage of the law.

As the defendants concede the constitutionality of the law, we deem it unnecessary to review the decisions of the Supreme Court of the United States, and to pursue the argument showing that a State has the right to pass a homestead law of the kind before us, and that its operation against an ordinary creditor whose claims existed before its passage, in no manner contravenes the provision of the consitution of the United States, prohibiting a State from enacting a law impairing the obligations of contracts. 15 An. 153; Cooley’s Limitations 288.

It is therefore ordered that the judgment herein in favor of plaintiff be affirmed with costs.

Ludeling, C. J.,

dissenting. Two judgment creditors of W. F. Doughty having caused his property to be seized under executions, he enjoined the sale, on the ground that one hundred and sixty acres were exempt from seizure and sale under the act of the General Assembly commonly known as the homestead exemption law. The creditors averred that their debts existed before the passage of said law, and that the law could not have a retroactive effect; and they prayed for the dissolution of the injunction with damages.

There was judgment in favor of the plaintiff, and the defendants have appealed.

The evidence shows that the debts existed prior to the passage of the law. The rule is that laws prescribe only for the future, and there is nothing in this law to indicate that the legislators intended that it should have a retroactive effect.

Courts ought not to consider a law applicable to cases which existed before its passage, unless the legislators have clearly indicated that such was their intention. 3 N. S. 270; 7 La. 280; 14 An. 27.

In this case, if the law had expressed that obligations existing before its passage should be destroyed either in whole or in part, the law would have been unconstitutional; and so it would be, if the construe- . tion be correct, which is contended for by the plaintiff, that his property is exempted from seizure for the payment of a debt contracted before the law was enacted.

It is the duty of courts to so construe statutes as to give them effect, if possible. And, accordingly, the Widows’ Homestead act and the Homestead Exemption law have been interpreted not to apply to obligations which existed at the time said acts were enacted. 10 An. 509, Succession of Taylor; 12 An. 553, Milne v. Schmidt; 20 An. 244, Roupe v. Carradine; 25 An. 142, Mills v. Sheriff et al.

Whatever there is in the opinion in the case of Robert v. Coco, 25 An. 199, which may be in conflict with this view, is not approved.

It is contended by the plaintiff that inasmuch as the debts of the defendants were not secured by a mortgage on his lands, they had no right on the land which could be lawfully exempted by the Legislature from seizure to pay said debts, and that said exemption ^either impaired the obligation of the contracts nor divested rights.

The obligation of a contract is that which the law, in force at the time the contract is made, obliges the parties to do or not to do. The right of each is to obtain a performance of what the other bound himself to do. The remedy is the means or manner provided to enforce this right. But if the remedy or means for enforcing the right be wholly destroyed, the right or obligation is destroyed, because a legal right is one which can be enforced. C. C. 1757.

I think it is clear that a law passed subsequent to the creation of a debt, which would exempt all of the debtor’s property from the payment of his debt, would be- unconstitutional; and that it would be equally so if a part of it was placed out of reach of execution, provided the portion left liable was not sufficient to satisfy the debt. 4 Wheat. 122; 8 Wheat. 1; 6 Wheat. 131; 6 N. S. 591.

I can not, therefore, adopt the construction contended for by the plaintiff, and I dissent from the opinion of the court.


author: Wyly, J.

text:
    No. 5420.
    State of Louisiana v. George Fritz alias George Frey.
    Act 124 of the acts of 1874, organizing the Superior Criminal Court gave that court exclusive jurisdiction of this case, and no order of transfer or other decree was necessary to give it jurisdiction.
    If & nolle prosequi was entered on the first count for “forgery,” the forged order was copied in the second count “for publishing as true a forged order for the delivery of goods,” and no explanatory averment of the meaning of the words and figures thereof was necessary — the meaning being obvious. The signature of the forged order “Randal & Co., 43 Carondelot street,” was sufficient to suggest the name of a firm upon whom the forgery was committed.
    ' It was not necessary to allege that Randal & Co. had goods at the place designated in the forged order.
    The averments of the second count were ample to apprise the defendant of the charge against him, and to put him in possession of all information necessary to prepare his defense.
    That a new trial and nolle prosequi were entered on the first count charging forgery, is no reason why the defendant should escape the verdict and sentence on the second count for a distinct and separate offense.
    The new trial and nolle prosequi, as to the first count, were entered on the twenty-third of May, 1874; the motion in arrest of judgment, however, was not presented until the twenty-seventh, four days afterward. This court is not prepared to say that the judge a quo erred in holding that the motion came too late.
    The expression in the decree of the court that “ the prisoner having been brought into court, and having nothing to say in arrest of judgment, was sentenced,” etc., of course, implies-that he was ashed if he had anything to say why sentence should not be pronounced against him.
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      A. P. Field, Attorney General. J. JB. Ootton, Alfred Sham, for plaintiff and appellee. J. J. Foley, for defendant and appellant.
   Wyly, J.

An information was filed against the defendant containing three counts:

First — Forgery.

Second — Publishing as true a forged order for the delivery of goods.

Third — Obtaining goods by false pretenses.

A nolle prosequi was entered as to the third count, and the accused was tried and found guilty on the first and second. The counsel for the defendant moved for a new trial on the following grounds:

First — There was no testimony showing the forged instrument is in the handwriting of the accused, or that it was done by his procuration.

Second — There was error in admitting said forged writing to prove said first count.

Third — The evidence in support of the second count was not sufficient to warrant the jury in returning a verdict of guilty.

A rehearing was granted on the first count, but refused on the second. A nolle prosequi was then entered as to the first count, and the accused was sentenced to six years’ imprisonment in the penitentiary. He thereupon took this appeal.

Appellant assigns in this court the following errors :

■1. There is no order transferring this case from the First District Court to the Superior Criminal' Court.

2. The contractions in the writing charged to have been forged in the second count should have been explained by an innuendo or explanatory averment.

3. It should have been averred in said second count what was meant by the contractions Randal & Co.; that is, whether the same meant some juridical person or association whose signature would be effective for the purpose of fraud.

4. It should have been averred in said second count that Randal & Co. had goods at the place designated by the order.

5. Tile jury, in their finding on the second count, predicated the forgery and guilty knowledge on the first count. A new trial and nolle prosequi having been subsequently ordered on the first count, the finding on the second can not stand by itself.

6. There was error in the ruling of the judge refusing to allow the motion in arrest of judgment to be filed.

7. The prisoner was not asked if he liad anything to say why sentence should not be passed upon him.

First — Act 124 of the acts of 1874, organizing the Superior Criminal Court, gave that court exclusive jurisdiction of this case, and no order of transfer or other decree was necessary to give it jurisdiction.

Second and Third — The forged order was copied in the second count, and no explanatory averment of the meaning of the words and figures thereof was necessary, the meaning was obvious. The signature to the forged order: “Randal & Co., 43 Carondelet street,” was sufficient to suggest the name of a firm upon whom the forgery had been committed.

Fourth and Fifth — It was not necessary to allege that Randal & Co. had goods at the place designated in the forged order. We regard the averments of the second count as ample to apprise the defendant of the charge against him and to put him in possession of all information necessary to prepare the defense. In the motion for a new trial the only objection to the finding on the second count was the averment that the evidence was not sufficient to warrant the jury in returning the verdict of guilty. The second count, as before remarked, contains all the necessary allegations in a charge for publishing a forged order for the delivery of goods; and the jury, upon facts which we can not revise, returned a verdict of guilty on this count. That a new trial and nolle proseguí were entered upon the first count charging forgery is no reason why the defendant should escape the verdict and sentence on the second count, a distinct and separate offense.

Sixth and Seventh — The defendant had the right to file a motion in arrest of judgment, but that right should have been exercised within a reasonable time. The new trial and nolle proseguí as to the first count were entered on the twenty-third of May, 1874 ; the motion in arrest of judgment, however, was not presented' until the twenty-seventh, four days afterward. We are not prepared to say the judge erred in holding that the motion came too late.

The decree recites that the accused was brought into court “in the custody of the sheriff to be sentenced on the above charge, and having nothing to offer in arrest of judgment, considering the verdict of the jury herein recorded and section 833 of the Revised Statutes of the State, the court sentenced the said George Fritz alias Fry to imprisonment at hard labor in the State penitentiary for a term of six years, and to pay the costs of this prosecution.”

The expression “and having nothing to offer in arrest of judgment,” of course, implies that the prisoner was asked if he had anything to say why sentence should not be pronounced against him.

Judgment affirmed.


text:
    No. 5586.
    The State ex rel. P. S. Wiltz, Agent, etc. v. Charles Clinton, Auditor.
    The tax collector is entitled to charge $2 for each deed of sale which he effects, hut when one person buys all of a tract of land containing two thousand acres, and gets one deed, the tax collector is not allowed to charge for forty deeds under the supposition that the property has been subdivided into fifty acre lots.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      S. Belden, for relator and appellee. Henry O. Dibble, for respondent and appellant.
   Ludeling, C. J.

The relator asks for a writ of mandamus to compel the Auditor to issue a warrant on the Treasurer for the amount of his bill for making sales for delinquent taxes, to wit: $3451. Proceeding under the act No. 47 of 1873, the tax collector advertised and offered for sale the property of several persons, on account of the nonpayment of the taxes; there being no bidders, the property was adjudicated to the State, and the tax collector made one proces verbal of the sale. He sold the property of one hundred and fifty-eight persons, and in the proces verbal he states that the property was subdivided into fifty acre lots, and for each fifty acre lot he charged two dollars, and for notices. We think he is entitled to charge for each deed two dollars, but when one person buys all of a tract'containing two thousand acres, and gets one deed, the tax collector is not allowed to charge for forty deeds, under the supposition that the property had been subdivided into fifty acre lots. The charge for notices is not proved. One witness alone swears in round terms to the correctness of the account. That is his opinion only, which is not evidence. We have seen that he was mistaken about the charges for making deeds; audit is more than probable that he is mistaken about the notices also. In many cases the charge is made for four and in others for six notices. We can not imagine why there should be six, or even four, notices in making a tax sale.

It is therefore ordered that the judgment of the lower court be set aside, and that the Auditor be commanded to issue a warrant in favor of the relator for three hundred and sixteen dollars, and that there be judgment of nonsuit for the amount claimed for issuing notices, the costs of the lower court to be paid by the defendant, and the costs of appeal by the relator and appellee.


author: Howelt., J.

text:
    No. 4367.
    Mrs. A. Langsdorf v. S. LeGardeur.
    Tli© plea of res judicata can not prevail, as there was a judgment of nonsuit as to the portion of the claim embraced in this action.
    The evidence establishes the lease for the time claimed, but the court erred in granting a privilege, as it is shown that the furniture was moved from the premises two or three months before this suit was brought.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J.

      A. Voorhies, for plaintiff and appellee. JE. Filleul, for defendant and appellant.
   Howelt., J.

Plaintiff sues for the balance due on a contract of lease and caused furniture to be provisionally seized. The defense is the plea of res judicata and the averment that the defendant occupied the premises by the month; that he gave the legal notice before vacating the same; that he tendered the keys and the rent for the month at the end of which he moved out, and upon plaintiff’s refusing to receive them he deposited them in the court where a suit was pending, and plaintiff has since taken them, and thus acquiesced in the judgment in said suit. A motion was made to set aside the attachment on the grounds that the attachment having been set aside in the suit above referred to there is res judicata, that the affidavit is false, and that plaintiff has no privilege.

Judgment was given in favor of plaintiff with privilege, and defendant appealed.

The plea res judicata can not prevail, as there was a judgment of nonsuit as to the portion of the claim embraced in this action.

The evidence establishes the lease for the time claimed, but the court erred in granting a privilege, as it is shown that the furniture wa3 moved from the premises two or three months before this suit was brought. It is true that the plaintiff took the money and keys deposited in the first suit, but only after the judgment therein, which awarded her the sum so deposited, and she took the keys upon informing defendant she would rent the house for his benefit, and because the house was left exposed and subject to damage.

It is therefore ordered that the judgment so far as it grants a privilege on the property provisionally seized be reversed and annulled, that the provisional seizure be set aside at the costs of plaintiff, and that in other respects the judgment be affirmed, plaintiff to pay costs of appeal.


text:
    No. 5754.
    Succession of John O’Loghlen.
    Under article 3252 It. C. C. which says : “ The widow or legal representatives of the children shall he entitled to demand and receive from the successor of the deceased husband or father, a sum which, added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars,” the proof should have shown that, in this instance, the widow also had no means, or, if she had any, less than one thousand dollars, what it was. Her demand should be rejected on that ground; nor can the demand be made by the attorney for the absent heirs. The legal representatives of the children would be their tutors.
    APPEAL from tbe Second District Court, parish of Orleans. Tissot, J.

      W. O. Denegre and H. G. Morgan, for public administrator, appellant. Hornor & Benedict and W. H. Hunt, for Bothick et als., creditors of the succession andr appellants. McGloin & Nixon, for the absent heirs, appellees.
   Ludeling, C. J.

John O’Loghlen, died at Ocean Springs, Mississippi, leaving a small amount of personal property in New Orleans, which is administered by the public administrator. Having filed Ms account aud tableau of distribution, several oppositions were filed, and among them one by the attorney of absent heirs claiming $1000, under article 3252 R. C. C.

The evidence shows that O’Loghlen left two sons, one living in New York and the other in Ireland, and his widow, who resides in Ohio— none of whom have ever been in Louisiana.

The testimony of one of the sons shows that the children of O’Loghlen have no property, but there is no evidence to show what the circumstances or means of the widow are. The' law is that the widow or legal representatives of the children chalí be entitled to demand and receive from the succession of the deceased husband or father a sum, which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars.” C. C. 3252. In order to Tecover under this law the proof should have shown that the widow also had no means, or, if she had any, less than $1000, what it was. The demand should be rejected on that ground.

Nor can the demand be made by the attorney for absent heirs. The law declares that “the widow or the legal representatives of the children shall be entitled to demand,” etc. The legal representatives of the children would be their tutors.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that the oppositions to the account be rejected and that the account of the public administrator be homologated, the costs to be paid by the succession.


text:
    No. 5561.
    Succession of Joseph Ricard.
    It would be improper to attempt to decide anything in regard to the title of the property in controversy, even if .the conrt had jurisdiction, as the vendee is not before the court, and it would be no less wrong to malie an order to put the legatee in possession of property which is shown to have passed out of the succession, and the possessor is not before the court
    It is manifest that the judgment decreeing the title of the property to be still in the succession is wrong, as no such allegation or prayer is made in the petition.
    It is equally clear that if it had been made, the parish court would have been ratione matence without jurisdiction to try that question, as the value of .the property exceeded five hundred dollars.
    APPEAL from the Parish Court, parish of Lafourche. Oollm, J.

      John 8. Billiu, B. W. Blake, for plaintiff and appellee. Pugh & Guión, and L. 8. Attain, for defendant and appellant.
   Ludeling, C. J.

. On the fourteenth of August, 1873, Martial Ricard as legatee under the will of his natural father, and as heir of his brother Charles, obtained an order against the executor of Ms father’s will to render an account. The account was rendered, and the plaintiff filed an opposition to it. While that suit was pending, he filed a petition praying to be recognized as the sole legal heir of his brother and instituted heir of his father, and to be put in possession of the special legacy made to him by the will.

This demand was opposed by Severin Rieard, the executor, and Joseph Rieard, the brother of the deceased, who claimed to be the sole legal heirs, on the grounds that the plaintiff was only a statu liber at the date of testator’s death, and that he was the natural son of the testator, and could not receive as legatee or inherit from the father.

There was judgment in favor of the plaintiff declaring him a legatee of his father and the heir of his brother, his colegatee, ordering him to be put in possession of the property bequeathed to him and his brother, and declaring the sale made by the executor null and void and the title of the property to be still in the succession.

The only part of this judgment that is seriously opposed in this court is, that the judgment is ultra petitioner.n, and that the parish court was without jurisdiction to try the question of title to property, the value whereof exceeds five hundred dollars, and that the judgment orders that plaintiff be put in possession of property of the estate, which he has judicially admitted had been sold.

The evidence shows that the tract of land bequeathed to plaintiff constituted the principal part, if not the whole, of the property of said succession, and that it had been sold; that the plaintiff liad called on the executor for an account, and had filed an opposition to the account, which was still pending. It would be improper to attempt to decide anything in regard to the title to this property, even if the court had jurisdiction, as the vendee is not before the court; and it would be no less wrong to make an order to put the legatee in possession of property, which is shown to have passed out of the succession, and the possessor is not before the court. It is manifest the judgment decreeing the title of the property to be still in the succession is wrong, as no such allegation or prayer is made in the petition.

It is equally clear that if it had been made, the parish court would have been without jurisdiction ratione materias to try that question, as the value of the property exceeded five hundred dollars. Constitution, article 87.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the plaintiff recognizing him as instituted heir of Joseph Rieard and heir at law of Charles Rieard with costs of the lower court, the costs of appeal to be paid by the appellee.


text:
    No. 2559.
    Benito Vinas v. Merchants’ Mutual Insurance Company of New Orleans.
    Article 443 K-. C. C. does not protect corporations from civil prosecutions for damages ex delicto. Corporations have been held responsible for acts done by their agents ex contacta and ex delicto.

    A corporation may sanction the publication of a libel, and in such case the corporation is the publisher of the libel, and liable in like manner as an individual, not because, as is sometimes said, a corporation may act with malice, but because it has a capacity for voluntary action, and is responsible for such action.
    It is as possible for a corporation as for an individual to act' maliciously, to wit: with a bad intent. Accordingly, it has been held that a corporation aggregate may well, in its corporate capacity, cause the publication of a defamatory statement under such circumstances as might imply malice in law sufficient to support the action; and there may be circumstances by which express malice in fact might he proved, such as to make a corporation aggregate liable therefor in its corporate capacity.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      George B. Bright, for plaintiff and appellant. A. Yoorhies, for defendant and appellee.
   Howell, J.

This is an action for slander and libel, to which the defendants pleaded the exception of no cause of action, in that i‘a corporation can not he made responsible for damages ex deUeto,” and they rely on article 443 B. C. C., which says: “A corporation can not commit the crime of treason, or any other offense in its corporate capacity, although its members may be gnilty of those crimes in their individual and respective capacities.”

This article does not, in our opinion, protect corporations from civil prosecutions for damages ex deUeto.

In applying the above and the three preceding articles, this court said, in the case of Etting v. Commercial Bank of New Orleans, 7 R. 463, cited by defendants: “ The true rule seems to be that when the agent, acting in the capacity bestowed upon him by the corporation, and in discharge of some duty or employment directed by the employer or incidental to his situation, does an act that causes damage to an individual, the body corporate is responsible.”

That corporations have been held responsible for acts done by their agents, ex contractu and ex deUeto, is shown by numerous reported decisions throughout this and foreign countries.

In Townsend on Slander and Libel, section 265, it is said : “If an officer or agent of a corporation is guilty of slander, he is personally liable, and no liability results to the corporation. But as all concurring in the authorship or publication óf a libel are alike responsible as publishers, there is nothing to prevent a corporation from being in law the publisher oí a libel, and from being held liable as such publisher. A corporation may sanction the publication of a libel, and in such case the corporation is the publisher of the libel, and liable in like manner as an individual; nob because, as is sometimes said, a corporation may act with malice, but because it has a capacity for voluntary action, and is responsible for such action. It is as possible for a corporation as for an individual to act maliciously, i. e., with a bad intent. Accordingly, it has been held that a corporation aggregate may well, in its corporate capacity, cause the publication of a defamatory statement under such circumstances as would imply malice, in law, sufficient to support the action; and there may be circumstances by which express malice in fact might be proved, such as to mase a corporation aggregate liable therefor in its corporate capacity.”

The allegations of the petition bring this case within this principle, the defamatory expressions being contained in an answer filed on behalf of the defendants in a suit against them.

It is therefore ordered that the judgment appealed from be reversed, that the exception be overruled and the case remanded to be proceeded in according to law. Costs of appeal to be paid by appellees.


text:
    No. 3919.
    Thomas G. Egan v. The Fireman’s Insurance Company and The Pelican Insurance Company.
    This was merely a case of ordinary reinsurance, no policy being issued, no -written agreement being entered into, but the application for reinsurance by the Fireman’s Insurance Company being entered in the books of the Pelican Insurance Company, as it is inferred to be the custom among insurance companies in cases of this kind.
    If there was a stipulation pour autmi, or a contract whereby the Pelican Insurance Company assumed the obligation of the Fireman’s Insurance Company, the plaintiff can not enforce it, because said agreement was nob in writing, and the law is that the promise to pay the debt of another can not be proved by parol evidence.
    APPEAL from the Seventh District Court, parish of Orleans. . Oollens, J.

      Budd & Grover, for plaintiff and appellee. Judien Michel, for defendant and appellant.
   Wyly, J.

The plaintiff, in 1869, insured a lot of groceries and some furniture in a building occupied by him, in The Fireman’s Insurance Company for $1200, paying the premium, $24.

Within twelve months thereafter, and during the continuance of the policy, a fire occurred and the property insured was destroyed.

Plaintiff then sued on the policy, The Fireman’s Insurance Company for the loss sustained by him, which is proved to be equal to the amount of the insurance. He also, in the same suit, sued The Pelican Insusurance Company for the same amount, alleging that they assumed the risk or obligation of The Fireman’s Insurance Company to plaintiff.

The court came to the conclusion that the case was fully made out against The Fireman’s Insurance Company, and that the contract he-tween Tbe Fireman’s Insurance Company and Tbe Pelican Insurance Company was not one of ordinary reinsurance; but was an assumption by the latter of all the risks taken by the former, to facilitate a liquidation of affairs; and it was made not to secure The Fireman’s Insurance Company merely, but for the use and benefit of those to whom that company liad issued the policy. That it was a stipulation pour autrui, of which the third parties could avail themselves according to the articles 1890 and 1902 of the Revised Code.

Judgment was accordingly rendered against each of the defendants for $1200, the amount of the insurance. The Pelican Insurance Company alone has appealed.

There are two reasons why the judgment against the appellants should be reversed:

Mrsi — The evidence shows that this was a case merely of ordinary reinsurance, no policy being issued, no Written agreement being entered into, but the application for reinsurance by The Fireman’s Insurance Company being entered in the books of The Pelican Insurance Company, as we infer the custom is among insurance companies in cases of this kind.

Second — If there was. a stipulation pour autrui, or a contract whereby The Pelican Insurance Company assumed the obligation of The Fireman’s Insurance Company, the plaintiff can not enforce it, because said agreement was not in writing, and the law is that the promise to pay the debt of another can not be proved by parol evidence.

It is therefore ordered that the judgment herein against the appellants, The Pelican Insurance Company, be annulled, and that plaintiff’s demand as to them be rejected with costs of both courts.


author: Ludbling, C. J.

text:
    No. 4439.
    Nicolson & Co. v. Citizens’ Bank.
    Plaintiffs, in this instance, rely on a judgment in their favor, which, however, did not grant them a privilege on a certain property “belonging to Stinson, although claimed in that suit. They rested satisfied with the judgment and had it recorded. The consequence of their acquiescence in that judgment is the loss of their privilege so far as third parties are concerned. But even if that judgment did not settle the claim of plaintiffs' adversely to them, they have lost their privilege by failing to reinscribe it within ten years. The privilege was recorded in 1860; the judgment was recorded in 1861, and there had been no reinscription thereof in 1872, when defendants foreclosed their mortgage.
    APPEAL from tbe Fourth District Court; parish of Orleans. Them'd, J.

      JBornor & Benedict for plaintiffs and appellants. A Pitot, for defendants and appellees.
   Ludbling, C. J.

The petition alleges that on February 8, 1870, Nicolson and Company, in liquidation, filed their petition, alleging that under a notarial contract with the city of New Orleans they had paved Camp street with square block stones, and especially in front of the property on the corner of South and Camp streets, known as the Verandah hotel, the property of Joseph Stinson, and received from said city on January 30, 1860, a certificate of the amount due them for said work, amounting to $979 05, which was duly recorded in the-mortgage office on the fourth of March, I860, against the said recorded owner of said property; that subsequently they instituted suit thereon and obtained judgment, which was also duly recorded in said mortgage office, and their privilege operated against said property as superior in rank to all mortgages resting thereon; that by virtue of a seizure and sale issued at the instance of the Citizens’ Bank on a mortgage by it held, the Citizens’ Bank became the purchaser of said property, and refused to pay to your petitioners the amount of their judgment and privilege as aforesaid, or to surrender the property to be subjected to your petitioners’ claim: and they pray accordingly.”'

The Citizens’ Bank answered that it had the first mortgage on the property; that the privilege claimed by the plaintiffs never existed; that if the privilege ever existed the claim was novated and the privilege was lost, and that the privilege had already been rejected in a suit between the plaintiffs and Stinson, the former owner of the property.

It appears that Nicolson & Co. took the note of Stinson for the amount of their claim for paving; that they had their claim recorded in the Book of Records, in March, 1860; that they sued Stinson on the said note and claimed a privilege on the property, and there was a judgment in their favor against Stinson for the amount of the note or claim, but the judgment said nothing about the privilege, and this-judgment became final. The judgment was rendered in February, 1861, and was duly recorded. . The bank’s mortgage was recorded in February, 1837.

It is evident, therefore, that the bank’s mortgage outranks the mortgage of the petitioner's, and that their pretensions to be paid by .preference can only be maintained by showing that they have a privilege on the property sold.

Privileges are strieii juris and must be clearly established by those who assert them. Pretermitting the expression of an opinion as to whether or not Nicolson & Co. novated their claim for paving by taking the promissory note of Stinson, and thus lost their privilege, it would seem that the judgment which they obtained against Stinson on that note should be conclusive against their claim now asserted to be a privilege. That judgment, we have seen, did not allow the privilege, although claimed in that suit. They rested satisfied with the judgment and had it recorded.

We think the consequence of their acquiescense in that judgment is the loss of their privilege, so far as third parties are concerned. We are cited to the case of Gustine v. Union Bank, 10 Rob. 418, in which the court held that “if under the law the debt creates a privilege or tacit mortgage, they exist independent of the judgment rendered.” The question is only an obiter dictum in that case, and although generally true when there was no issue in regard to the privilege, it is not true in a case in which the existence of the privilege is at issue, and the judgment does not recognize the privilege.

But even if that judgment did not settle the claim of Nicolson & Co.- adversely to them, they have lost their privilege by failure to reinscribe it within ten years. The privilege was recorded in 1860; the judgment was recorded in 1861, and there had been no reinseription thereof in 1872, when the bank foreclosed its mortgage. C. C. 3369.

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


author: Taliaeerro, J.

text:
    No. 5745.
    Teutonia Insurance Company v. Thomas O’Connor et als.
    "While the Babcock extinguishers are.used, without by such úse interfering with or being in the way of the operations of the fire department, the plaintiffs or others may lawfully use them without incurring responsibility.
    The resolution of the board of directors of the Biremenis Charitable Association, passed on the twenty-sixth of January, 1875, is more stringent and sweeping than it has the right to pass. Its purport is to abolish the use of the Baboock extinguisher within the limits of the city of New Orleans, under any and all circumstances whatever. The chief engineer is clothed with power and instructed to prevent the Babcock engines from running to fires, and the resolution provides, that the engineer shall “send them and the men working them to prison.” This is an unwarrantable stretch of power.
    from the Superior District Court, parish of Orleans. Ecmláns, J.

      Eornor & Benedict, for plaintiffs and appellees. Laeey & Butter, Oharles E. Lunenburg, B. F. Jonas, city attorney, for defendants and appellants.
   Taliaeerro, J.

The petition sets forth that the Teutonia Insurance Company has, on its own account, with the view of protecting property insured by it against destruction by fire, brought into use “ Babcock’s Eire Extinguisher,” an engine of a small order, which is very useful in tlie quick and easy suppression of fires in many instances, particularly in their incipiency, owing to their aptitude for use at a moment’s notice, the rapidity with which they can ba^transported to the place where a fire occurs, and the facility with which they may be worked, one of the smaller class of them being easily carried and operated by one man; that for several years past the company has, by its agents,. caused these machines to be used to great advantage in the extinguishment of fires — in some instances, by reaching buildings on fire before the large fire engines could be run to the place required, owing to a bad state of roads and other impediments sometimes occurring ; that the plaintiffs have for some time caused these engines to be used at fires together with the common fire engines used by the fire companies, and with their consent and approval, and in all such cases, subordinately to and under the direction of the engineer controlling and directing the operations at fires. The plaintiffs complain that on or about the twenty-sixth of January, 1875, “ The Firemen’s Charitable Association,” availing itself of the exclusive right vested in it by an ordinance of the city of New Orleans to control and direct the means to be used in'the extinguishment of fires, and the members of which association being actuated by malice toward the petitioners, and with the intent of injuring them, did adopt the following resolution, viz:

“ Resolved, That the Chief Engineer of the Fire Department, Thomas O’Connor, be instructed to prevent the Babcock engines from running to fires, and, if they persist, to send them and the men working them to prison.”

The plaintiffs aver that about that time, at a fire on First street, several of the Babcock engines were pushed on in advance of the regular fire department’s engines, and were being successfully used against the progress of the fire when the men working the Babcock engines were interrupted by the Chief Engineer of the Firemen’s Charitable Association, at whose request and by whose direction the men so engaged in operating the Babcock engines were arrested by certain officers of the Metropolitan police force and sent to the lock-up of the Fourth Municipal Police Court, where charges were preferred against them of violating said city ordinance No. 1210 by the said Chief Engineer O’Connor, which they were bound over to answer by the judge of that court.

The plaintiffs charge that the city is without authority to confer upon the said association such exclusive right under its charter, and that the same is repugnant to the principles of common equity and subversive of the same.

The plaintiffs aver they have sustained great damage by the action of the said Chief Engineer O’Connor, the Firemen’s Charitable Association and the Metropolitan police force, and in the full sum of one thousand'dollars, for which said parties are liable in solido; that said parties threaten and intend to further carry out the aforesaid resolution and to prevent plaintiffs from using said extinguisher; that said action will cause them irreparable injury, and that a writ of injunction is necessary to protect the plaintiffs’ rights in the premises.

The plaintiffs prayed that a writ of injunction issue to restrain the defendants from interfering with them in the premises, and they pray judgment in solido against them for one thousand dollars as damages and all costs of suit.

An injunction was granted as prayed for.

The Firemen’s Charitable Association and Thomas O’Connor, Chief Engineer, answered, denying generally and specially all the allegations of the plaintiffs’ petition. They assert the right of the State to confer the exclusive power and authority over the subject of fires to the municipal corporation of New Orleans; that the State has by the city charter granted that exclusive power to the corporation over the subject, and that the eity, in its contract with the Firemen’s Charitable Association to extinguish fires, has conferred, as it had a right to do, upon the said association the authority complained of by plaintiffs.

The defendants answer further that the Babcock Fire Extinguisher, in none of its sizes, shapes and forms, is effectual in extinguishing fire or putting out flame, except in its incipient stage, and owing to the very limited benefit arising at any time'and under any circumstances from the use of such machine, the employment thereof at fires, where its presence is. calculated to produce certain injurious results, is not only inexpedient, but improper, and ought not to be sustained by the court.

The defendants set forth at length the provisions of the city charter on the subject of the extinguishment of fires within its incorporated limits, and claiming the city’s right to adopt any and all proper rules in relation thereto.

The defendants set up a reconventional demand against the plaintiffs of five thousand dollars, as damages caused by the illegal acts and conduct of plaintiffs in the premises, and by expense of attorneys’fees, which defendants have been forced to incur.

The defendants charge that plaintiffs and the Board of Underwriters and other insurance companies and associations of New Orleans have maliciously, improperly and unlawfully combined and confederated together to embarrass the Firemen’s Charitable Association and unjustly and unlawfully to bring about its dissolution.

The defendants pray that on the original, action judgment be rendered in their favor; that plaintiffs be cited to answer defendants’ re-conventional demand; that the injunction be dissolved; that defendants recover from the plaintiffs five thousand dollars, with interest at five per cent, per annum from judicial demand, with costs, etc.

The judgment of the lower court perpetuated the injunction restraining the Firemen’s Charitable Association, and Thomas O’Connor, its chief engineer, and the Board of Metropolitan Police, from carrying into effect the resolution óf the board of directors of the said association, instructing its chief engineer to prevent the Babcock engines from running to fires and to imprison the men working the same. The defendants were restrained by the judgment from interfering with the plaintiffs’ employes in the use of the Babcock extinguishers, as long as they do not interfere with or impede the action of the officers and members of the fire department. The defendants’ reconventional demand was dismissed with costs. The defendants have appealed.

The point made in the defense is that, from the nature of the object or purpose of extinguishing fires, it is essential to efficient action that the means used, the methods adopted and the physical efforts made in resisting the terrible power of the destructive element of fire should be directed by one mind; that there should be unity of action; that the power of the fire engineer during the struggle should be as complete and absolute as that of Csesar at Pharsalia or Napoleon at Austerlitz; and that his movements and operations should not be impeded or interfered with by others using different engines and different methods than his own, he being the judge of what constitutes impediment or interference.

We find no objection to this doctrine. But we do not understand that the plaintiffs assume the right to use their engines at fires where the fire companies are in action, otherwise than under the direction of the managers and subject to their orders. The evidence is that the Baocock extinguisher has been often used in this manner by the consent and under the control of the directors at fires. The proof is abundant that these engines are capable of important services in cases often occurring, where they may hurriedly be sent to a house on fire in time to extinguish the fire before it becomes unmanageable, and which might destroy the building before the heavier and more tardy engines could reach the spot. Outstripping these in speed and successfully performing the work to be done before their arrival, can not be called interfering with or impeding them in the exercise of their functions. It is, we suppose, true from the testimony, that the gas used by the Babcock extinguisher is, within contracted limits, and in the incipient stage of fires, most potent in the destruction of flame, and may be pro . ductive of incalculable benefit in saving buildings from destruction by its prompt and efficient use before the fire gains the ascendancy and bids defiance to all effort to suppress it. Surely in all such cases, and we may easily perceive that very many such may occur, there can be no wrong in resorting to the use of these engines. While, therefore, they are used, without, by such use, interfering with or being in the way of the operations of the fire department, the plaintiffs or others may lawfully use them without incurring responsibility.

We must regard the resolution of the board of directors of the Firemen’s Charitable Association, passed on the twenty-sixth of January, 1875, as more stringent and sweeping than it had the right to pass. Its purport is to abolish the use of the Babcock extinguisher within the limits of the city of New Orleans, under any and all circumstances whatever. The chief engineer is clothed with power and instructed “to prevent the Babcock engines from running to fires,” and the resolution provides that, if they persist, the engineer shall “ send them and the men working them to prison.” This is an unwarranted stretch •of power.

The decree of the lower court was properly rendered.

Judgment affirmed.


text:
    No. 5380.
    State of Louisiana v. Joseph Hugel.
    In reply to questions propounded by the judge to the jurQr, he said that the opinion he had referred to on his vovre dwe, as having been formed at the time of the occurrence, was not an opinion, but an impression which would readily and easily yield to evidence • (strong evidence), and that he could go into the jury box and render a verdict according to the evidence in the case, regardless of the impression referred to by him. The objection by the defendant to this juror was not well founded; the juror was not disqualified.
    'There was nothing defective in the manner of sentencing the accused. The record shows that, having been brought into court, “and having nothing to offer in arrest of judgment,” he was sentenced. This sufficiently shows that he was asked if he had anything to say why sentence should not be pronounced against him.
    It was not necessary that the defendant should be present when the motion for a new trial was made and overruled. •
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      A. P. Field, Attorney General, for plaintiff and appellee. Henry O. <& John H. Castellanos, for defendant and appellant.
   Morgan, J.

The accused was convicted of the murder of his own daughter, and the verdict being guilty “ without capital punishment,” was sentenced to imprisonment for life.

In the court of the first instance he moved for a continuance, on the ground that he could not procure the testimony of the captain of the steamer Louisiana, and other witnesses, by whom he expected to prove that, on the voyage across the ocean, he had been vigilant in attempting to prevent improper intimacy between his daughter and several male passengers; that his daughter’s honor was “a fixed and controlling idea in his mind;” that during a long period of the passage he was a prey to this gloomy idea, and frequently spoke about it, saying that he preferred to see her dead than leading a life of disgrace and prostitution.

If the witnesses had been present, and had testified as the appellant says they would, it would not have constituted a defense. The judge did not err in refusing the continuance.

The next objection he urges is that the juror, Schwartz, was not a good juror.

On his voir dire he stated that from what he had read in the newspapers about this ease, at the time of the occurrence, he had formed an opinion and has that opinion still; that it would require evidence to remove that opinion; that he does not consider weak evidence as evidence, but strong evidence he considers evidence.” In reply to questions propounded to him by the judge, he says that the opinion he refers to as having been formed at the time of the occurrence was not an opinion, but an impression, which impression would readily and easily yield to evidence (strong evidence, mind), and that he could go into the jury box and render a verdict according to the evidence in the case, regardless of the impression referred to by him.” The juror was not disqualified. State vs. Boyer, 14 An. 462; 23 An. 148.

We do not find that the charge of the judge was erroneous. Neither do we think that there was any error or informality in the manner in which the indictment was found or returned to the court; nor was there anything defective in the manner of sentencing the accused. The record shows that having been brought into court, and having nothing to offer in arrest of judgment,” he was sentenced. This sufficiently shows that he was asked if he had anything to say why sentence should not be pronounced against him.

The objection that he was not present when the motion for a new trial was made and overruled is not tenable. It was not necessary that he should be present on those occasions.

Judgment affirmed.

Rehearing refused.