author: Blanchard, J.

text:
    No. 12,471.
    Clara Amy vs. Odilon Berard.
    The law, which provides for a separation from bed and board in certain cases, is made for the relief of the oppressed party, not for interfering in quarrels where both spouses commit reciprocal excesses and outrages.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies,' J.

      Foster & Broussard and L. O. Hacker for Plaintiff, Appellant.

      Thorpe & Muller and F. H. Thorpe for Defendant, Appellee.
    Submitted on briefs April 14, 1897.
    Opinion handed down April 26, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This is one of those cases of marital infelicity whose grievances are, too frequently for the good of society, aired before the courts.

It is a case of crimination and recrimination — the wife against the husband, the husband against the wife — with the result of dragging forth fromits closet the family skeleton and its exposure to the public gaze.

The wife sues the husband, claiming a divorce, and in the alternative, a separation from bed and board.

The causes alleged are excessive cruel treatment and his failure and refusal to provide for the family maintenance and support.

The husband enters a. denial to this, and then, assuming the character of plaintiff in reconvention, charges against the wife ill usage, abuse, cruelty and bodily injury, and prays judgment against her for divorce, or, in the alternative, for a decree of separation from bed and board.

The evidence discloses a condition of affairs in this family that leaves no room for doubt that both spouses are equally blamable. Harsh treatment, habitual censure, denunciation, and even bodily violence are shown. The marriage obligations of reciprocal forbearanee, patience and love — the taking “for better, for worse”— appear to have been disregarded by both alike.

The trial judge rejected the prayer of the wife and gave judgment for the husband on his reconventional demand, decreeing a separation from bed and board in his favor.

The reasons assigned are that “there is a preponderance of evidence in favor of defendant.”

The wife appeals.

It may be defendant has shown more of cruel treatment than did the plaintiff, or was able to produce more witnesses in support of his allegations. But that does not entitle him to a decree where the testimony shows his conduct to have been as culpable as hers.

Rather should the judgment have been one rejecting the demands of both and dismissing the suit. Such is the settled jurisprudence of State. Mutual insults and outrages, the fruit of mutual provocation, unless there be a just and palpable disproportion of guilt as between the parties, furnish no sufficient ground of action to either. Trowbridge vs. Carlin, 12 An. 882; Lallande vs. Jore, 5 An. 38; Naulet vs. Dubois, 6 An. 408; Castanedo vs. Fortier, 34 An. 135.

We affirm the doctrine, announced in a very early case, that the law which provides for a separation from bed and board, in certain cases, is made for the relief of the oppressed party, not for interfering in quarrels where both parties commit reciprocal excesses and outrages. Durand vs. Her Husband, 4 M. 174.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be set aside, avoided and annulled, and that this suit be dismissed, costs of appeal to be borne by defendant and appellee, and those of the court below by plaintiff.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,408.
    Dufossat et als. vs. Fontenot et als.; Calhoun Fluker, Appellant; J. L. LeBourgeois, City of New Orleans and Charles M. Greene, Appellees.
    A third person, not a party to the original suit and judgment, has exactly the same standing as an appellant before this court as one of the parties thereto would have as an appellant.
    A person who acquires title at a parlinon sale to effect a settlement between plaintiffs of their rights and interests in property in suit, takes their position and standing in the litigation, in point of fact, notwithstanding he fails to have himself made a party thereto — that is to say, his acquisition gives him no advantage, and does not affect the rights of the defendants and appellees.
    A PPEAL from the Twenty-first Judicial District Court for the Parish of St. John the Baptist. Host, J.

      Calhoun Fluker and J. L. Bradford for Plaintiff, Appellant.

      W. S. Benedict and Robert G. Dugué for Jos. L. LeBourgeois, Defendant, Appellee.
    Argued and submitted March 3, 1897.
    Opinion handed down April 26, 1897.
   The opinion of the court was delivered by

Watkins, J.

The present litigation involves a tract of land, at this time situated in the parish of St. John the Baptist, having about eight arpents front on the Mississippi river on the left bank descending, and extending back a depth of forty arpents. It forms a part of a large tract of land extending from the Mississippi river back to Lake Maurepas and the Amite river, which is alleged to have been granted to Pierre Delile Dupard by the French government on the 3d of April, 1769. It passed from Dupard to his daughter, Madame Delile Macnamara, by inheritance, and she conveyed title to Henry Fontenot on the 17th of December, 1784.

By a will subsequently made by her in 1815, in Rouen, France, Mrs. Macnamara bequeathed her entire estate to Joseph Soniat Dufossat, Sr., at the time an officer in the French army — the bequest embracing the residue of the land covered by the aforesaid grant, and alleged to have been situated immediately in the rear of the tract which the testatrix had previously sold to Fontenot.

It is claimed that the aforesaid Dufossat died in 1835, having bequeathed his estate to his brother, Joseph Soniat Dufossat, Jr.; and and that he sold to John McDonogh an undivided one-third of the land lying back of the first forty arpents, retaining the other two-thirds, of which he died possessed in 1865, leaving his estate by will to his numerous children.

It appears that Joseph Soniat Dufossat, Jr., and John McDonogh brought a jactitation suit against six persons residing in the parish of St. John the Baptist, alleging civil possession of the back lands heretofore described, and located said suit in the then First District Court of the parish of Orleans — same having been filed in 1841.

McDonogh died in 1850, leaving his estate by will to the cities of New Orleans and Baltimore; and in the course of a partition subsequently made, the interest of McDonogh passed to New Orleans.

Subsequently the suit was removed to the parish of St. John under a change of the law, and upon the allegation that the interests of the six defendants had devolved upon Joseph LeBourgeois and Felix Becnel, residents of that parish.

It appears that after citations were issued and served, nothing further was done, and no further action was taken therein until about the year 1892, when the city of New Orleans filed an appearance, claiming one-third undivided interest, as having derived title by will from John McDonogh, and informing the court of the death of Dufos - sat, her co-plaintiff, and the residuary interests of his heirs; and further stating, upon information, that Joseph LeBourgeois, Sr., and Felix Becnel had died, and that their rights in the property in controversy, whatever they were, had devolved upon Joseph L. LeBourgeois, Jr., to whom the petitioner prayed citation to issue.

He was cited and filed a plea of prescription and made answer, setting up a claim of ownership to a part of the property in dispute.

In 1892 and 1893 some depositions of witnesses were taken on the part of the city of New Orleans, but the counsel of LeBourgeois objected thereto.

In this situation of affairs the city of New Orleans brought suit against the heirs of Dufossat for a partition of the lands involved in the suit above described, and obtained a decree of partition by licitation on the 24th of March, 1893.

An appeal from that judgment was prosecuted by LeBourgeois, which resulted in the dismissal thereof. New Orleans vs. Dufossat, 46 An. 399; State ex rel. City vs. Judge, 45 An. 950.

It is stated as part of the history of this litigation that Calhoun Fluker became the purchaser of the property at the partition sale, which was made on the 16th of June, 1894, and that by that adjudication he became invested with all the rights of the plaintiffs in the aforesaid suit.

It appears that the aforesaid cause of Dufossat vs. Fontenot was, on June 8, 1895, set for trial on the 20th of said month, on the motion of the defendant, LeBourgeois, and that said cause was taken up and tried on the day above specified, against the protest of the counsel of the plaintiff, who was absent attending the trial of another case in the parish of East Baton Rouge at the time.

That at the trial an exception of no cause of action was filed by counsel representing the defendants and overruled, and that the cause was taken up for trial upon the merits, and judgment was rendered and signed on that day in favor of the defendant, same being based upon a supplemental answer which was filed on the day of trial, and supported by many deeds, reports of land commissioners, acts of Congress, plans, maps and surveys, and supplemented by a great deal of parol testimony, forming a very large transcript.

The counsel for plaintiffs being absent they were unrepresented at the trial, and, consequently, there was no testimony adduced on their behalf, and Calhoun Fluker, to whom the land in controversy had been previously adjudicated, had not made himself a party to the litigation, and did not participate in the proceedings.

The judgment rendered is of the following tenor, viz.:

“ It is therefore ordered, adjudged and decreed that there be judgment rejecting the demands of the plaintiffs, and dismissing their suit as to him, with costs, i. e., Joseph L. LeBourgeois, Jr.
“It is further ordered, adjudged and decreed that the said Joseph L. LeBourgeois, Jr., be and he is hereby recognized as the true owner of the undivided one-half of the lands described in the plaintiff’s petition” the description omitted — “ and that he be quieted in his possession of said lands.”

That judgment was signed on the 21st or June, 1895; end on the Sd of August, 1895, an action was instituted in the name of the city of New Orleans, for the avoidance of same, on various grounds, notwithstanding all of the rights of the city, as well as of the Dufossat heirs, had passed to Calhoun Fluker by the partition sale, to all appearances.

The grounds of nullity therein assigned are, substantially: (1) That the city’s co-plaintiff, Dufossat, had died previously to the rendition of judgment and his heirs and legal representatives had not been made parties plaintiff; (2) that the fact that the Dufossat heirs had not made themselves parties, had been previously urged by defendants’ counsel, at different times, as a reason why the case should not be fixed for trial; (3) that for the same reason said counsel appeared at the partition sale and entered a written protest against it being made, and afterward took an appeal to this court for the same reason; (4) that on the 6th of June, 1895, the counsel of the city filed in the parish of East Baton Rouge a mandamus suit in which he was counsel for the relator against the Register of the State Land Office, and caused same to be fixed for trial on the 20th of June, 1895, the day upon which counsel for LeBourgeois, Jr., had, on the 3d of June, 1895, fixed the case of Dufossat vs. Fontenot for trial, though without notice to him; (5) that on said 20th of June, 1895, the cause was taken up for trial, and on the following day decided, notwithstanding the said attorney for the city had made due and timely objection and affidavit for a continuance thereof.

To the foregoing is added the general statement that said irregularities in the proceedings rendered the judgment void; and that the city had a good and valid title.

To the foregoing petition counsel for LeBourgeois filed exceptions (1) that as an application for a new trial it came too late, and (2) that as an independent action of nullity it could not be engrafted upon the former suit; and same were subsequently tried and sustained and the suit dismissed.

From that judgment no appeal was taken, and same may be treated and considered as having been acquiesced in. It bears date November 16, 1895.

In this condition that suit and judgment remained until the 11th of June, 1896, when the twelve months period during which same could be prosecuted, an appeal was taken by Calhoun Fluker, by petition and citation, as a third person having an interest in the property in litigation.

His petition is prefaced by the statement that on the 16th of June, 1894, he became the purchaser of the property in controversy at the aforesaid partition sale; and subsequently it recites at length the same grounds of complaint substantially as are stated in the aforesaid action of nullity on the part of the city alleging his possession and ownership thereof.

It is evident that the sole object of this appeal is to obtain a reversal of the judgment rendered in favor of LeBourgeois on the 21st of June, 1895; and upon the sole grounds which were stated in the petition of the city in its action of nullity. But the position of the appellant is different from that of the city, for whose benefit that suit was'Covertly intended, in that he founds his right of appeal upon the title he acquired at the partition sale in 1894, one year previous to the trial, and the judgment from which his appeal is taken.

Upon that supposition, the rights, titles and interests of all the parties plaintiff had ceased altogether, and had passed by the adjudication at partition sale to the appellant; and the necessary deduction therefrom is, that neither the city nor the heirs of Dufossat were real parties plaintiff in the suit at the time of trial and judgment, nor in the action of nullity. '

But, notwithstanding that was so, in point of fact, yet the appellant, as adjudicatee, for reasons of his own, had not caused himself to be made a party to the suit; and by his failing so to do he left it in the power of the defendants to proceed as they did, and take judgment accordingly — relying possibly on the fact that the effect of the partition sale was to divest the incapacitated minors of Dufossat, and to invest a person sui juris with title, against whom their judgment would be effective and valid.

But, conceding that the appellant has a standing in court as third person and party to the title, and the consequent right to urge the same irregularities and alleged illegalities in the proceedings that the city did; yet he can possess no other or greater rights, and they must, necessarily, be subordinated to the fact, that by the partition sale a party sui juris has been substituted in the place and stead of incapacitated persons in the title.

In this view of the matter, we are firmly of opinion that he is without any well grounded complaint.

It was plainly his duty to have caused himself to be made a party to the suit seasonably, so that his interest could have been protected therein; and that fact is illustrated by this appeal for the purpose of obtaining relief from the effect of the judgment therein rendered.

The defendant, Bourgeois, had a perfect right to have the cause set down for trial at his own risk. The city was at least a competent plaintiff with whom he could try the ease contradictorily, and if, in point of fact, the partition sale had the legal effect of divesting the Dufossat minors, there was no necessity of their being joined as parties plaintiff at the trial — a capacitated person having taken their place.

We see no reason for disturbing the judgment.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,400.
    Emanuel J. Baysset vs. George M. Hire.
    The legal and moral duty due hy the parent to his daughter, and the solicitude hy which he should always be prompted for -her future, give rise to a “ qualified privilege,” on occasions, he thinks, his advice and admonition are required.
    The tie between father and daughter, and the usual sympathy among the friends of both (to whom the report against the plaintiff who sought her hand was repeated) is such that the truth of the report was not the issue, hut whether the father honestly believed it to be true.
    The utterances of the father on such an occasion are not actionable merely because not true, hut express_malice must be shown.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Clegg & Quintero for Plaintiff, Appellant.

      B. B. Howard for Defendant, Appellee.
    Argued and submitted March 29, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused May 10, 1897.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by the plaintiff to recover damages for slander committed, it is charged, by the defendant. The damages affected his reputation, caused loss in business, wounded his feelings and brought about a severance of the betrothal between himself and defendant’s daughter, he, in substance, avers.

The defendant, in his answer, admitted that he had made the statement as alleged by the plaintiff, but he especially denied that the statement was made in any spirit of malice, revenge or hatred, or that it had, in any manner, damaged the plaintiff. He also averred that he entertained kindly feeling for the plaintiff; that he was paying his address to his daughter, to which he objected; that the statements he made were to friends of the plaintiff in confidence, without intending to injure him, but to convey to him that his visits must ■cease.

The ease was tried before a jury. The verdict was for the defendant.

The vexatious and painful reports against the plaintiff, of which he complains, were of a date long anterior to the date that the defendant made the statements he is charged with having made.

Such reports, if unfounded, are always to be regretted, and those who maliciously and wantonly circulate them are as blamable and censurable as those by whom they were originated.

It remains that the case before us is exceptional. It is the cause of a father who sought to prevent his daughter from receiving the address of the plaintiff — in other words, the plaintiff sought defendant’s daughter in marriage. The father, on account of injurious reports against the young man, deemed it proper to interfere.

It is true that rumor with her thousand tongues exaggerates everything. She rejoices in her task of telling alike of facts and fictions; of things done and things not done. Such reports as those circulated in this instance are nearly always disproved with great difficulty. The father owed no duty to the plaintiff, which could possibly prevent him from carrying out a determination prompted by affection and tenderness for his daughter. Reports, such as those made evident by the record, circulated about a Caucasian of the purest type, would be enough to influence the conduct and utterances of a prudent parent when considering with the members of his family, or in conversation with close friends, the advisability of his daughter’s marriage.

In justice to the plaintiff we deem it proper to state that witnesses of the highest respectability have testified that members of the family against whom the grievous charges were directed were at the time treated and considered as white, and that as such they were admitted in religious and other circles where none but white persons were admitted. It was plaintiff’s misfortune that there were adverse reports about him. In view of the occasion and exigency, the quesbion was whether the father, who is now the defendant, honestiy believed the report to be true. In our judgment, whether the rumor was true or even whether the defendant had reasonable grounds to believe these reports, are not essentials to free him from the reproach of being a defamer, if he believed the report to be true.

In our view the occasion was one of qualified privilege, and the purpose of the defendant was to prevent a threatening injury, and not for the purpose of slandering. The disclosure made by him to the plaintiff was made bona fide, and the utterances while conversing with intimate friends do not disclose the least malice. We have before stated the occasion was one of qualified privilege. In that case, to sustain his action, the plaintiff must show actual malice. The onus is with him. We think the plaintiff has failed in his attempt to prove malice. Without this proof, if the defendant honestly believed the report true, he can not be held in damages.

We believe, as substantially urged by counsel for the plaintiff, that the pleadings on the part of the defendant were stronger than the occasion required. But the answer and the evidence were considered as a whole by us, and we reached the conclusion that the defendant in his defence had not alleged more than had been reported to him.

Mr. Cooley, in his book on Torts, said: “To require him at his peril to keep strictly within the limits of what he could prove to be true would be to make no allowance for the confidence properly belonging to the relation, or for the agitation and alarm which paternal feelings would naturally experience when an alliance believed to be improper was proposed. The case suggested is one of a large class of cases in which the like privilege is allowed, and in which it is necessary to show not only that the communication was false, but also that it was made with evil intent ” (p. 214).

Much must be allowed to the thoughtful father who seeks to guide his children in the right direction. Unless he is reckless and inconsiderate in his statement his utterances are not actionable.

“If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them, within any narrow limits.” Baron Parke in Toogood vs. Spying, 4 Ty. and W. 582.

“ The privilege is not defeated by the mere fact that the communication is made in terms that were intemperate or excessive from over-excitement.” 120 Mass. (Atwill vs. Mackintosh), pp. 177, 183; citing: 13 An. 239; 5 E. and B. 344; 5 An. 169.

It follows from the foregoing that communications within the qualified privilege are not actionable merely because they are false or defamatory, but express malice must be made evident.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed.


author: Miller, J.

text:
    No. 12,307.
    Louis N. Schoenfeld vs. Louisville & Nashville Railroad Company.
    The decision in this case turns on an issue of fact whether the defendant was negligent in the transportation of plaintiff’s horses; the court holds there was no negligence.
    APPEAL from the Civil District Court for the’Parish of Orleans. Bightor, J.

      Joseph N. Wolfson (Dinkelspiel & Hart, of Counsel) for Plaintiff, Appellant.

      Denigre, Blair & Denigre for Defendant, Appellee.
    Argued and submitted February 6, 1897.
    Opinion handed down January 15, 1897.
    Rehearing refused March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues for damages on an alleged breach of a contract of defendant to convey thirteen race horses of plaintiff from Louisville to this city. The petition avers that by the negligence of defendant the horses reached here sick, that two died in consequence, and the others were so disabled as to be of no use. The petition claims ten thousand dollars for the two that died and five thousand for the expenses for veterinary surgeons, medicines and cure for the others. The defence denies the negligence charged, and sets up a contract limiting the damages in the event there is any liability to plaintiff.

We find no occasion to deal with the defence based on defendant’s contract, determining the damages, in the event of liability, as our conclusion is controlled by the view we take of the other defence.

A careful examination of the record in this case, in our view, does not exhibit any basis to charge the defendants. There were interruptions of the train in its course by which the transportation was delayed. The plaintiff in his testimony states that in making the contract four days was contemplated as the probable time required to reach here. The train left Tuesday and reached here Sunday morning. During the transportation the horses were in the car provided with the requisite arrangement for safe conveyance, in care, too, of defendant’s agents and there is no suggestion of want of care or deficient accommodation. We can not attribute the sickness they developed to the detention, such as it was, on the trip. There was a collision a few miles from the city by which some of the horses were thrown down in the car. But as we read the record the horses sustained no bruises. The car itself sustained no injury except a hole above the horses. After the collision no complaint was made, apt to be the ease if the horses had been injured. Other horses on the train exposed to the collision were uninjured. Prom the inception to the end of the transportation we can find no cause for the sickness of the others or death of two horses. One of the witnesses speaks of a lump in the throat of one of the horses, but we are unable to connect that trouble with the collision or with anything else on the car. Pneumonia is the malady the veterinary surgeon assigns as the cause of the death of the two that died. But even the expert testimony that pneumonia may be caused by confinement and impure air is hardly a basis on which we can rest any conclusion. The confinement was not much longer than that required, there is no complaint against the ventilating arrangement, and no reason to suppose any want of care expected and doubtless given by defendant’s agents traveling with the horses. On this question of fact, we are constrained to hold that there is no liability of defendant established, and of this opinion was the lower court.

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


text:
    No. 12,455.
    State of Louisiana vs. J. C. Ruthing, E. E. Roberts, Surety on Bail Bond, Appellant.
    The bond given by the accused was forfeited. The sureties appealed to have the order of forfeiture vacated.
    The accused bound himself to appear in court to answer, and he also bound himself not to depart without leave of the court.
    He having departed without leave, properly, the bond was forfeited.
    Although the indictment may be defective, and the offence not sufficiently set forth in the bond, the sureties are held to have known that they were signing a bond for the appearance of the accused.
    The validity of the indictment can not be assailed while the accused is a fugitive.
    The sureties must have their principal to answer to the sentence. His departure, prior to sentence, without leave, is a breach of the bond.
    A PPEAL from the Second Judicial District Court for the Parish of ■ Webster. Watkins, J.

      M. J. Cunningham, Attorney General, A. J. Murff, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      L. K. Watkins for Roberts, Defendant, Appellant.
    Argued and submitted April 3, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

The surety on a b.ail bond appeals from a judgment rendered on the forfeiture of the bond.

The bond recited that the accused was held to answer to the charge of “extortion by threat.”

The condition of the bond was to answer the charge brought against him, and not to depart from the court without leave.

He was indicted under Act 63 of 1884, which defines the crime for which he was indicted.

After the witness had been examined and argument of counsel heard, it was late at night;. the court instructed the jury that they might return a sealed verdict to the clerk, in the absence of the court, and thereafter separate until the next day. The jury having agreed on a verdict during the night and having had it filed in accordance with instructions, when they appeared in the morning to have their verdict read and recorded the accused was absent.

He was called and failed to appear; thereupon his bond was forfeited and judgment was rendered against the surety, who is the appellant here.

The errors complained of on appeal are:

1. The bond did not define any offence denounced by statute.

2. Act 63 of 1884 is in violation of the Oonstitution of the State

3. The only bond required, after the indictment has been found, is one conditioned for the appearance of the accused for trial, and that the accused had complied with the condition.

The appellant with reference to the first ground concedes that an appearance bond need not, prior to indictment, technically define the offence charged, but contends (after an indictment is found against the accused) that a bond for his appearance to be legal, must define the offence charged in the indictment.

In our view in this particular very little difference is to be made between a bond given prior to the indictment of an accused or a bond given after he has been indicted. In either case the recognizance need not set out the offence charged with the technical accuracy prescribed in an indictment. Archibold, Vol. 1, p. 196. It follows that a recognizance not containing a description of the offence, strictly as stated in the statute, may be good.

The reasons that impel courts to require strict conformity to statutory or general rules for the structure of indictments, and for the description of crime therein, do non apply to bonds executed to enable accused persons to liberate themselves from imprisonment.” State vs. Tennant, 30 An. 853.

There were several conditions inserted in the bond, to which the accused and his sureties must be held. One of these conditions was that the accused would not depart from the court without leave.

It was express that the accused should not leave before his discharge by the court. By departing as he did we think that he has violated one of the principal obligations of the bond. State vs. Ridding, 8 An. 79.

In a case relied on by the appellant it was held the bond would have been sufficient if it had contained the condition not to depart from the court without leave first obtained, thereby affirming the view expressed in this and the other decisions cited. State vs. Forno, 14 An. 450.

“ The condition was also that the accused should not depart without leave of the court, and having violated this condition of the bond he and his sureties are equally bound.” State vs. Ansley, 13 An. 299.

In State vs. Cole and Williams, 12 An. 472, this court said:

“ It is sufficient answer to this objection that the accused bound himself not only to appear at court to answer that specific charge, but also not to depart thence without leave of the court first obtained. Having departed without leave his bond was justly forfeited.” Citing: 1 Chitty’s Criminal Law, p. 105.

This rule was expressly stated and reaffirmed in State vs. Tennant.

In another jurisdiction the bond omitted to stipulate that the accused should answer the accusation against him, but it contained the condition that he should remain in court from day to day until discharged; it was] held the omission did not impair the validity of the bond. Gray vs. State, 11 Texas App. 527.

When one enters into the obligation of suretyship for the appearance of a person charged with crime, the obligation is in character, civil. State vs. Ashley, 13 An. 299.

Here the most important condition was the presence of the accused.

The delivery of an accused to his sureties is conditioned upon their together signing the required bond. The principal feature of the bond, and that which it is intended to secure, is his presence in court. Besides, in this case, the endorsement on the bond and the whole record showed the nature and character of the offence with which the accused was charged. The number on the face of the indictment and on the face of the bond is the same. It follows that the sureties must be held to have known that they were signing a bond for his appearance to answer to an offence charged, although not correctly described in the bond.

We will conclude upon this point by referring to the case of State vs. Porter, 63 Missouri, 522, in which the court said that the bond was binding; that in the People vs. Stager (10 Wend. 431) it was held that the clause “ not to depart until discharged,” is unnecessary in respect to the charge, which is the basis of the recognizance; that its nse is to detain the accused on other charges that may be preferred against him. A similar view of the ends to be accomplished in such a cause in a recognizance is taken in earlier books, citing Hawk. Pl. Cr., Ch. 15, No. 84.

It is next contended by the defendant that the condition of the bond, “ that the accused shall not depart without leave of the court,” was not authorized by the statute; that Revised Statutes, Secs. 1033 and 1910, contain no such requirement. May it not be said in answer that one who becomes security on a bond required by law, to which he has voluntarily submitted himself, is bound by the obligation he has assumed. The conditions inserted “for the appearance of the accused,” Sec. 1010, 3d paragraph, covers, when expressed in the bond, the condition that he shall not depart without the court’s leave.

This brings us to a consideration of the defence that Art. 63 of 1884 is unconstitutional.

Act 64 has been by this court decided unconstitutional, ergo Act 63 of 1864 should be, for the same reason, decided unconstitutional, is the position of the appellant.

The security on the bond takes the fortune of his principal, and is bound equally with him. A fugitive from justice, principal on the bond for his appearance in answer to an indictment, can not object that the law under which he was indicted was unconstitutional. The plea in his behalf can only be made in his presence. The bail, no more than the principal, has the right to invoke the unconstitutionality of the law, while the latter is an absconder. If the bond is illegal, upon the ground of the unconstitutionality of the law, it follows that the indictment is illegal. The accused would indirectly accomplish that which it was impossible for him to accomplish directly, and this by a plea of his security, in whose friendly custody he is, in law, supposed to continue after he has obtained his release on the bond.

Lastly, it is contended by the appellant that the judgment of forfeiture should be vacated, because the accused appeared, was put on trial and convicted.

Here, again, the surety is met by the condition inserted in the bond that his principal was not to depart without leave of the court.

The principal was not formally surrendered. He was tried, but left before the jury had returned the verdict in open court. The bail was not discharged by the fact that the principal was put on his trial. This was clearly decided in the case of State vs. Norment, 12 La. 511.

The court said in that case: “ The accused did accordingly appear, but departed thereafter without leave of the court, whereby the condition of the bond was broken and the forfeiture incurred.”

In State vs. Martel et als., 3 R. 23, Judge Martin, for the court, said: “The condition of the bond is that the principal shall appear at the court, and shall not depart the said court without leave thereof. The breach of the recognizance is his departure without leave of the court.”

Believing the decisions in these cases to be correct, we are not disposed to overrule them.

They have the support of decisions in other jurisdictions; thus, in the case of Alexander et al. vs. Georgia, Kelly’s R., p. 139, the court held, in a case, the facts being substantially similar: “The sureties must have their principal to answer to the sentence of the court.”

After a complete review of the issues, we have found no ground upon which the surety can be relieved.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 12,383.
    Heirs of Ameron Ledoux vs. Leon Lavedan et als.; Heirs of Ameron Ledoux vs. Laura R. Hyams, Administratrix, et als.; George W. Lewis, Intervenor (Consolidated).
    The plaintiff brought the action to compel delivery of property to the succession of which he was a creditor, in this action another creditor joined as an intervenor.
    1. Defeíice as to Intervenor — The plea of res judicata was pleaded in bar to the action.
    2. Jurisdiction — The intervenor contended, in opposition to that plea, that the probate court was without jurisdiction to compel the administrator to deliver property, of which, he claimed, he was personally the owner.
    3. Bound by the Proceedings {Intervenor) — She was plaintiff in the action in which the judgment, claimed as res judicata> was rendered. It was intervenor’s action which brought title to real estate into question.

      Ex Necessitate Ret — The court had jurisdiction. Succession of Bellande, 41 An. 493.
    4. Title of Administrator — The intervenor was concluded by the judgment, which decreed contradictorily with her that the succession, whose right she championed as a creditor, had no title.

      5. Not a Bar to Plaintiffs '(Res Judicata) — Tile plea of res judicata does not apply, as against the claim made by the plaintiffs, for the reason the administrator did not represent the succession.
    •6. Not a Judicial Mandatory — (a) The administrator had an adverse interest, and was not, in consequence, the judicial mandatory of the creditors in the suit in which he obtained a judgment decreeing that he was the owner. His heirs and those holding under them have no right to the property on the plea of res judicata.

    7. Creditor’s Interest — (b) The creditor, by whom suit was brought against the administrator personally, represented her own interest, and not the other creditors of the succession. The judgment rendered against her, on her opposition remaining (after the provisional account had been homologated in so far as not opposed), is not res judicata as against the other creditors of the succession, who did not join- in the opposition to compel the administrator to deliver property.
    8. Proceedings not 'in Concurso— (c) The fact that the creditors were carried, as to their claim, on the provisional account did not render them subject to the plea of res judicata in the matter of a judgment procured by one of the creditors against the administrator personally; the creditors against whom the plea is pleaded were not present; were not notified and took no part in the proceeding, which resulted in a judgment pleaded as res judicata.

    On "Application fok rbhbaking-.
    The issue was decided in favor of plaintiffs, appellants; appellees are bound for costs of plaintiff’s appeal.
    The court when passing upon the question of res judicata is necessarily restricted to the issue which has been determined by the judgment pleaded as res judicata

    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Frank L. Richardson and Frank Soulé for Plaintiffs, Appellants.

      Jerome Meunier for J. P. Dupont, Defendant, Appellee.

      Benjamin Ory for Leon Lavedan, Defendant, Appellee.

      Fergus Kernan for Laura R. Hyams, Administratrix, Defendant and Appellant.

      T. O. Stark for Dr. Geo. W. Lewis, Intervenor, Appellant.
    Argued and submitted March 17, 1897.
    Opinion handed down April 26, 1897.
    Decree modified and rehearing refused May 3.1, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs are the heirs of the late Ameron Ledoux, who was a creditor of the succession of the late Henry M. Hyams, evidenced by a judgment rendered in 1866 and kept alive at .all times since, it is alleged.

They brought this action against the defendants for a judgment •decreeing that the property described in their petition is owned by the successions of the late Henry M. Hyams and wife, who died insolvent, it is averred. Plaintiffs in their petition claim that it should be sold as succession property and that the proceeds should be applied to the payment of creditors upon an account to be filed.

The petitioners alleged that the lifetime interest in the property had been confiscated by the United States Government and sold.

Subsequently, the late H. M. Hyams was pardoned by the proclamation of General Amnesty, issued by the President of the United 'States, and restored to his rights.

He and his wife died in 1875.

In 1877, in due course of administration of their successions, the administrator filed a provisional account of his administration.

Among the names of creditors carried upon the account were those of the father of plaintiff, Ameron Ledoux, of Mrs. Camille Lewis, and of the Planter’s Bank.

The former Ameron Ledoux did not oppose the account. Oppositions were filed by Mrs. Camille Lewis and by the Planter’s Bank.

They alleged that there appeared to have been sold by H. M. Hyams, deceased, to I. S. Hyams, his son, property described in the petition. They charged that the sale was simulated.

They also alleged that there were other properties which I. S. Hyams ostensibly purchased for himself, but which really belonged to the succession; because they were made in the vendee’s name for the use and benefit of H. M. Hyams, who furnished the funds, and because the vendors in these sales (vendors to I. S. Hyams) had themselves only purchased the life interest or usufruct of the property at the confiscation sales made by the United States Marshal; that the vendors to I. S. Hyams only sold the right which they had purchased (viz.: the life interest), and that although the late H. M. Hyams intervened and became a party to the sales, he could not thereby satisfy or confirm these sales to I. S. Hyams, so as to convey to the latter an absolute and enduring ownership in the property.

That by the death of H. M. Hyams the life interest or usufruct in the property had become extinguished and the ownership reverted to his succession, subject to the rights of its creditors.

The moneyed demand of this opponent, Mrs. Camille Lewis, was-merged into a judgment in her favor, in 1866.

The account was homologated in 1877, so far as not opposed. In 1878, judgment was rendered on the opposition, sustaining them, for the property covered by the simulated act of sale (or rather sales-the judge of the lower court decided were simulated) and he dismissed the oppositions, as to the remainder.

In his reasons for judgment the judge of the Second District Court, a court of probates, at the time held that by the condemnation and sale of the property, all interest of the late Henry M. Hyams “ was “ divested, and that the purchase by I. S. Hyams from the pur- “ chasers at the confiscation sale did not vest the fee simple in I. S. “Hyams; that the vendors to Hyams (adjudícateos of the govern- “ ment) could not give title transferring the property in ownership, “ but that at the death of H. M. Hyams his children took these “ properties which were once his by virtue of the statute and “ express reservation in the Federal Constitution, and that they “ could not be brought into his succession, through whom they did. “ not descend to his heirs; that the property may be burdened with “ the debts of Hyams, Sr., contracted before their confiscation and “ sale, a question he (the judge a quo) stated he was not called upon “ to determine. If they are,” added the court, “this is not the- “ forum in which opponents can exercise the rights which they have. “ They must go before courts of ordinary jurisdiction.”

Plaintiffs in the case before us, for our determination, in their-petition, allege that the properties which they claim should be sold to pay creditors of the succession were sold under the confiscation act as the property of H. M. Hyams, and that under the amnesty proclamation they reverted to him, and by his death to his succession, and not to the heirs directly, as erroneously decided by the judgment rendered in 1878.

' George W. Lewis, transferee of Mrs. Camille Lewis, intervened and reiterated the allegations of plaintiffs.

The defendants filed the plea of res judicata; the judgment upon this plea was for the defendants Lavedan et al.

The plaintiffs and the intervenor prosecute this appeal.

There is disagreement among counsel as to what property is involved in this litigation. No deed containing description of property has been introduced in evidence, and no attempt at identification of property by evidence was made.*

All the property designated as property of the first class is not clearly identified.

The same is true of the property designated as property of the second class — i. e., the property which had been confiscated does not appear to have been segregated from the property which was not confiscated. The difference as to the two, as to title, was a subject of argument at bar.

We have seen that the judgment rendered in 1878 decreed the first — the property of the first class — property of the succession and dismissed the opposition as to the property of the second class.

With the evidence before us and in view of the allegation made in the pleadings, we can not'determine with any degree of accuracy what property is included in the first class and what property is in the second class. We will, notwithstanding, pass upon the issue of law involved.

SHE TRIED THE RIGHT WITH THE ADMINISTRATOR AND LOST.

The transferror of the intervenor provoked the judgment which (he) the intervenor now contends was rendered by a court without 'jurisdiction. In the first case as in the second, the purpose of the suit was to compel the administrator to include the confiscated property among the assets of the successions of H. M. Hyams and wife.

She (Mrs. Camille Lewis) partially succeeded; the court ordered the ostensible owner, I. M. Hyams, to deliver to the succession property held; it was decreed, under a simulated title. In matter of the dismissed opposition, no appeal was taken. She (plaintiff in the first suit) acquiesced in the judgment. We think, after having given careful attention to the grounds urged in the suit before us, that the Probate Court had jurisdiction to pass upon an issue raised by this opponent in the first case, pleaded here as res judioata. It was her action which brought the title to real estate in question. The Court of Probate was competent to decide a question of title to real estate when title to real estate was an issue directly made.

Mrs. Camille Lewis had authority to stand in judgment. She is concluded by the judgment rendered at her instance. It were unreasonable to hold that one as creditor may sue to compel an heir to deliver property to a succession, but that the heir is not bound by the result in case of failure in maintaining the action; that she may bring another action to compel the same heir to surrender the property to which in the former case the court, determined the succession had no right as owner. It is too late in our opinion for the intervenor to raise questions at variance with a decree procured by the intervenor’s author many years ago. The thing demanded was unquestionably the same, and it was founded on the same cause of action; this constitutes the thing adjudged.

The issues involved were considered and determined, and the-judgment was definitive against the intervenor as to a portion of the property. Granger vs. Singleton, 32 An. 900.

The successions were insolvent. The purpose was to determine the amount to which each creditor was entitled from the sales of the-property.

It is true the proceedings were probate in character. But the-Court of Probates was competent to decide questions of title where real estate was brought in question. Act of 1843, No. 71.

The intervenor pleaded title in the succession to the whole property. Her plea having been sustained in part, she is concluded as to the remainder, to which it was held the succession had no rights,in course of the settlement of these successions. '

In Morton vs. Packwood, 3 An. 167, this court held that an executor could maintain his personal right to property for which the heirs sought to compel him to account, and that the judgment recognizing him as owner constituted res judicata; his personal rights were asserted and determined- upon. It was adjudged by the Court of Probates that he was the owner. “No question,” said the court, “ having been made as to the jurisdiction of the court, we think there is no difference in principle between a litigation in this form and a judgment for a sum of money, and the title to, or interest in, real property, where the parties select this mode of determining it.” It has also been decided by this court that it matters “not under what form the question is presented, whenever the same question recurs between the same parties, res judicata operates as a bar.

Judge Porter, of a similar issue, speaking for the court, said:

“ A judgment between two creditors on such opposition would not perhaps form res judicata except as between them.” Saul vs. His Creditors, 7 N. S. 433. An authority, which applies here both to the intervenor and to the plaintiffs, to that latter it applies, and supports the view that they are not concluded by the judgment.

The intervenor in the second place contends that the dismissal of the opposition, as dismissed in the judgment pleaded as res judicata, reserved to Mrs. Lewis from whom he holds the rights of resorting to another jurisdiction. The defence as to that plea is based upon the “ reasons for judgment,” and not upon the decree, which is absolute, and contains no-reservation.

But granted, that these “reasons ” should be considered in passing upon the question of res judicata.

It nowhere appears that a reservation was made against the successions; as to these it was expressly decided that the properties were not part of their assets. ' Whatever was reserved, as we read the reasons for judgment, related to those persons (and the heirs who received title from them), who, possibly, the court held, had become purchasers of the property, cum onere.

THE JUDGMENT PLEADED AS RES JUDICATA MADE NO RESERVATION AS TO THE SUCCESSION OE H. M. HYAMS.

In conclusion, as to the intervenor: we do not understand as contended by her counsel, that the judge declared that he was incompetent to entertain the demand, or that he decided upon a point which he disclaimed the competency to decide. As against the successions upon the issues presented, he decided, in matter of their settlement, that they were not entitled to the property. As against third persons, if the creditors had claims he determined that the proceeding should be against them in a court of another jurisdiction and not against a succession in a court of probate jurisdiction.

CASE OE PLAINTIEE.

The plaintiffs, in the first place, urged that they were not concluded by the plea of res judicata for the reason that, different from the position of the intervenor, their ancestor from whom they inherited was not a party to the opposition.

We have divided the question at issue as follows, viz.:

1. Whether the administrator represented the creditors in the suit which resulted in his favor.
2. Whether the creditor, Mrs. Lewis, by whom the suit was brought against the administrator, represented her interest only, or that of all the creditors of the succession.
3. Whether the creditors were estopped by the proceedings) between the suing creditor and the administrator; by the fact that they were parties to the provisional account which had been homologated, so far as not opposed, at the date that the judgment was Tendered upon the opposition of Mrs. Camille Lewis et al.

THE ADMINISTRATOR WAS NOT THE REPRESENTATIVE OE THE CREDITORS.

Taking up the first proposition, we think that it would be going out of fixed limits to hold that the administrator represented the heirs and creditors in an action to compel him to deliver property to which he claims title. The .administrator in such an action, which involved his personal interest, represented himself only.

The succession has no legal defender in so far as he is concerned. He can not be both plaintiff and defendant in a suit. An administrator, in that case, must plead for his account, and not for account •of the heirs and creditors.

We must keep in view that to sustain the plea of res judieata there must be absence of doubt and the presence of certainty.

How can the proof of res judieata be clear, certain and convincing, as required, where the administrator is the defendant, claiming •the property in controversy as his?

After having personally succeeded in his demand against a creditor, who chose to sue him, he or his heirs can not sustain the position that he was the legal representative of all the other creditors; againBt whose interest he sustained his defence against the suing creditor.

One can not be a plaintiff and defendant in matter of a succession of which he is the administrator. Harris vs. Pickett, 37 An. 746; Thomas vs. Bienvenue, 35 An. 937.

If the administrator were living and offering to defend his title on the ground of res judieata, he could not properly be heard.-

The position of owner and agent would be incompatible. The administrator instead of representing the creditors is their adversary. He is openly opposed to them.

In so far as relates to that plea his heirs and those who hold under them are not in a better position.

A judgment rendered between the creditor and the administrator, the latter an interested party, is not res judicata against other creditors.

This brings ns to the question of the extent that one creditor binds the others, in an action by him against the administrator to compel him to deliver to the succession property of which he claims he is the owner.

Of course a creditor of an insolvent succession whose claim is unquestioned can compel the administrator to deliver property of the succession he withholds. Neda vs. Fontenot, 2 An. 782; Macarty vs. Bond et al., 9 La. 355.

The right of the creditor to the remedy just stated is not denied in this case. We refer to his remedy in order to state more clearly our views as to the effect, vel non, its exercise has upon the rights of other creditors. The creditor, we are of opinion, can not represent the succession further than it is actually necessary for him, in his own interest, to represent it, in order to maintain his own action. He can not, by separate or combined action with other creditors, fix responsibilities or offset the rights of creditors who, after the administrator’s account, in so far as not opposed, is homologated, choose to remain silent and accept the account as homologated.

The creditor pleaded for his account and not as a judicial agent for the benefit of all the creditors. He can not as relates to other creditors engraft upon an administrator’s provisional account a separate litigation against the administrator in his individual capacity and obtain a judgment which will operate as a bar to the claims of other creditors.

The heirs, like the creditor, can sue to have property delivered to the succession, from which he inherits. His remedy being similar the effect as relates to res judicata vel non must be the same.

Regarding heirs, in our researches upon the subject, we have found in Moreau and Carleton’s translation of the Partidas, Yol. 1, page 287, a principle of law clearly expressed: if one of the heirs of a debtor be sued and the plaintiff éstablish his claim by proving his debt to be due from the deceased, and thereupon judgment be rendered against the heir, such judgment shall not prejudice the other heirs, though given with their knowledge, and without any opposition upon their part; the same is the case where one of the heirs of the creditor instituted a- suit for a debt due the deceased, with the knowledge of the other heirs, and without their making any opposition to it, for though the plaintiff be cast, the judgment against him shall not prejudice the other heirs.

We think the foregoing rule is correct; it followsjthat the judgment between the creditor and the administrator personally was res judicata, but as to the other creditors it was res inter alios judicata. We conclude upon this point with the statement: creditors are not represented by a creditor who has brought an action to compel an administrator personally to deliver property to the succession, of which the administrator claims title as owner.

ISSUE NOT DECIDED IN CONCURSO.

We are brought to the last ground upon this branch of the case.

Were all the parties plaintiff and defendant in the matter of the questions presented and decided contradictorily between the opponents in the account filed in 1878, and the administrator personally?

Unquestionably the rule applies where there is opposition to an account and the tableau proposes a distribution of funds on hand. There arises as to the funds to be distributed in that case a concurso among the creditors.

The possibility vel non under our jurisprudence of extending that rule so as to apply it to the creditors where one of their number has brought suit against the administrator to compel him to deliver property as before stated, is the difficult question before us for determination.

At the date that the judgment pleaded as res judicata was rendered, the provisional account had been homologated, so far as not opposed, and the creditors who were not opponents had virtually accepted the account as correct. They did not join in the opposition.

The creditors who continued opponents after the judgment of homologation had been rendered primarily sought their own inter - est. They pursued their action, and not an action of all the creditors.

' In their answer (for an opposition corresponds to the answer in the ordinary procedure) they combined the two; an action in character petitory, and an action in opposition to the account. May it not be if the creditor represents all the creditors, as contended by defendants, that it would frequently operate as a hardship in the settlement of insolvent successions, if the creditor could sue the administrator personally; combine with him and illegally impose an onerous charge upon the estate. It does appear to us that the creditor, neither by separate nor combined action, is authorized to fix. responsibilities upon the other creditors in cases in which he is-authorized to sue because of his personal interest.

We have here discussed the proposition entirely in the abstract.

The creditors who procured a decree to compel the administrator to deliver the property only sought a legal right. The possible measure and abuse of the remedy, if defendant’s theory were adopted, is referred to only by way of illustration.

We add further on this point: Oreditors not suing are not parties; for parties are those who have the right to control the proceeding, nor are they bound as interested persons, for they were treated as third persons. It is not shown that they were notified or that they were present at the trial, personally or by counsel, or that they had the least knowledge of the action.

The creditor suing for property for the succession acts in aid of the administrator who has possession for all the creditors. Ordinarily ai. suit by a creditor lies to compel a defendant to deliver to the administrator property alleged to belong to the succession. There must-be a succession representative in such a case. Neda vs. Fontenot, 2 An. 784.

Here there was none; the administrator, the court decided, was personally the owner. He was an adverse party, and as such incapable of acquiring rights against those by whom he was not sued.

It was also urged by defendant’s counsel in support of the plea of res judicata that the succession had received a portion of the property claimed by the creditor, who is the intervenor here. That may be, but we have not found evidence of it of record.

It does not appear that the property was delivered to the succession; that it was sold and the proceeds distributed.

It is well settled; to constitute res judieata the issues decided must be clear, definite, certain; there must be absence of doubt. In this case there was absence of needful certainty, and we were therefore compelled to overrule the plea.

We limited our decree to the plea of res judieata proper.

The ease of Vincent vs. Phillips, Tutrix, 48 An. 352, 356, was cited at bar, in which the court said: “ Whether it be strictly and technically res judieata or not the prior case must be taken to have settled, the law of the case.”

Here, the ease not being entirely similar, we decide “ strictly and technically” that the plea was not sustained by the judgment pleaded. We leave all other questions open for future determination. Passing from the subject in hand we will state that the last cited case is unlike the case here in that in the former the creditor sued the legal representative of the succession who had possession for the creditors and no adverse interest. She was not claiming property, and was not decreed the owner of the property claimed by one of the creditors of the succession for the succession.

Lastly, as there are two sets of titles or classes, we think it should thereafter be determined by the reference to the effect of the pleadings and by reference to evidence, in which set or class each title is included.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed in so far as it decrees that the plea of rps judicata be maintained as to George W. Lewis, the intervenor.

To this extent the judgment is affirmed.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed as to the plaintiff heirs of Ameron Ledoux; as to these the plea of res judicata is overruled.

And to this extent the judgment is annulled.

The case is remanded to be reinstated and the remaining issues tried.

On Application for a Rehearing.

The heirs of Ameron Ledoux, appellants, apply for the insertion of a statement in our decree as to who shall pay costs.

The one east on appeal pays costs of appeal, is read in every judgment.

It follows, in this case, the appellant is not concerned in the matter of costs; they are due by appellees.

If the judgment is for appellants, on any issue, the appellees pay costs.

As to the costs in the District Court, it will be time enough to tax them when the final decree will be rendered in that court.

The plaintiffs and appellants have not applied for a rehearing.

This statement does not require a rehearing, as it is, in effect, included in our decree.

The intervenor has filed an application, not for a rehearing, but for a correction or modification of the judgment.

The judgment pleaded as res judicata divided the titles to property into two classes.

1. “ Those which appear to have been sold by the late H. M. Hyams, deceased, to I. S. Hyams, his son and administrator.

2. “ Those which I. S. Hyams purchased from parties who had purchased said properties, or more properly the life estate thereto of H. M. Hyams at the confiscation sales made by the United States Marshal, by virtue of the orders issued in the matter of the United States vs. H. M. Hyams, No. 7685 of the docket of the United States Court.”

The property of the first class is referred to in the reasons for judgment, and in the judgment as property held under a simulated title and as still belonging to the succession.

While property of the second class is referred to as having been acquired under a confiscation sale.

In the nature of things the plea of res judicata could only apply to the latter.

This judgment appealed from, as to the intervenor, we have affirmed.

We have, in view of conflicting allegations in the pleadings and insufficiency of the evidence, declined to determine whether the properties involved belonged to the'first or second class.

We have considered and still consider that all issues are open for examination and determination, as relates to intervenor, save that relating to property of the second class.

The issue, as we appreciated the judgment from which this appeal was taken, was res judicata vet non as to the second class.

In that case there is no need of correcting our decree.

But if there was anything decreed touching the first class as barred by the plea of res judicata (we have found nothing of the sort), it must be considered modified and restricted by our views as just expressed.

As to the property of the first class the issues are open for determination.

The application is granted in so far as it may be needful.

It is therefore ordered and adjudged that our former decree is corrected and modified in accordance with the views above expressed.

Rehearing refused.


text:
    No. 11,959.
    In the Matter of The Liquidation of The Southern Wood Manufacturing and Creosoting Company, Limited.
    'The claimant for exemption from the payment of taxes, did not employ five hands, in operating the property used in the manufacture of arlicies of wood.
    A manufactory of articles of wood is exempt only where five hands or more are employed.
    Prescription Jfor taxes runs from the end of the year for which they have been assessed, and is interrupted by the litigation rendered necessary for their collection.
    The taxes were not extinguished by prescription.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Branch K. Miller for John T. Whitaker, Plaintiff in Rule to Cancel Taxes, Appellee.

      E. A. O’Sullivan, City Attorney, and George W. Flynn, Assistant City Attorney, for Defendant in Rule, Appellants.
    .'Submitted on briefs March 27, 1896.
    Reinstated April 8, 1896.
    Argued and submitted December 2, 1896.
    Opinion handed down December 14, 1896.
    McBnery, J. The judgment of the lower court was reversed on .appeal on the ground that the plaintiff in rule was without interest .in the matter.
    A rehearing was granted March 15, 1897.
    On the Rehearing.

      Samuel L. Gilmore, City Attorney; W. B. Sommerville, Assistant City Attorney, and F. O. Zacharie, appeared for Defendants in Rule.
    Submitted on rehearing on brief April 15, 1897.
    Opinion handed down April 26, 1897.
   The opinion of the court on rehearing was delivered by

Breaux, J.

This action was brought by the purchaser of certain property for the cancellation of taxes bearing thereon for the years 1891, 1892 and 1893, on the ground that the property was exempt from taxation, and the taxes, liens and privileges were prescribed.

The purchaser recovered a judgment decreeing that the taxes of 1891 and 1892 be canceled.

From the judgment the State and city of New Orleans prosecute this appeal.

By the testimony we are informed that the property in 1891 and 1892 was used in the manufacture of wood and in creosoting lumber. The lumber was sawed in definite lengths and sizes, fence boards, cross-ties; the sills of houses were sawed as required for sale in the market, and bridge material and other material were sawed in definite lengths, and the required tenons and mortises were made.

The company used a small engine and cross-cut saw to cut the pieces into the required dimensions. We understand that they had a mortise and tenon machine.

After the material had been given the needful shape, the element of water was removed from the wood by the use of a large cylinder six feet in diameter by one hundred feet in length.

It was shown that the creosoting process was effective only where the lumber is first cut in the shape it was intended to be used, and that afterward it was dried; otherwise the testimony shows the treatment by permeating it with oil or other preservative is not useful in prolonging the life of the material, because it was stated by the witness who testified upon that subject; if it is cut after it is creosoted it exposes the under surface where the oil does not permeate, the wood deteriorates and decays.

Ordinary lumber, it is stated, will live in use only a few years; but it is claimed that creosoted lumber will not decay; that it is practically indestructible.

The ground urged by the appellee: that the evidence in the case fails to show that more than five hands were employed in any of the years involved, was the first which invited our attention.

We have found no testimony of record in regard to the number of hands employed in ,the factory. The plant’s operations does not lead us to infer that more than five hands were employed.

The law upon the subject is quite clear.

The Constitution (Art. 207) ordains that the property employed in the manufacture of wood products is exempted, provided more than five hands are given occupation.

The purpose evidently was to invite the investment of capital in property to be employed in manufacturing articles of commerce, and at the same time offer a broader field to laborers and artisans for employment as skilled operators.

The employment of five hands or more in the factory is as essential, as the investment in property engaged in the manufacture of articles of wood, in order that the claim of exemption may come within the exempting clause. Moore vs. City of New Orleans, 48 An. 1452. The plea of prescription is equally as unfounded.

The factory was in operation in 1892 until May or June. The evidence does not disclose that it was in operation in 1891. Tax liens and privilges are prescribed by the lapse of three years from the time they become due. The taxes, in this case, became due on the first day of January, 1893; the answer of the tax collector to the petition to cancel the taxes was filed in July, 1895, clearly interrupting prescription. It follows from the conclusion reached, on the two points stated by us, if we were to hold that in view of the facts of this case the purchaser at sheriff’s sale could stand in judgment to compel the cancellation of taxes due by the former owner of the property, none the less the claimant for exemption here is absolutely without right to adjudgment of exemption from taxes, unless he proves that he employed the number required for exemption.

We do not specially pass upon the ground heretofore sustained by this court, after having heard. the case originally, further than to state that: it does not appear to us that the decision was erroneous; but, if we should grant that it was, the claimant would still be without any right to exemption.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us in this case is affirmed at cost of claimant for exemption from payment of taxes.

It follows that the judgment of the District Oourt is annulled, avoided and reversed.

It is ordered and decreed that plaintiff’s demand .-be rejected.


author: Eustis, G. J.

text:
    Andrew Erwin v. Bank of Kentucky.
    It is a settled rule of practice, that no answer is necessary to ordinary demánds in re-convention.
    On a reconventional demand, based on the amendment to art. 375, C. P., the going to trial on the merits of the demand, without urging the objection that no answer had been filed, or judgment by default taken, is a waiver of the objection.
    In a suit between A. and B. in which A. claims certain property, by virtue of certain conveyances which B. alleges to be simulated, the acts, sayings and declarations of C. who made the conveyances to A., are proper evidence.
    Also, the records of various suits between C. and other persons to which A. was not a party, are admissible in evidence to prove rem ip$amf and so far as they go to show the intentions of the parties as manifested by the pleadings; but the oral testimony taken in such cases is not evidence unless specially offered in the case pending.
    Certified abstracts from the office of the register of conveyances, made in the usual form of such certificates, are admissible in evidence to prove the inscription of the acts to which they refer.
    Sales of property made without any intention of the parties to bind themselves, are not contracts. There is a distinction between the contract, and the instrument of writing which may purport to witness it: C. C. 1755.
    The chapter of the Civil Code, regulating the revocatory action, is not applicable to cases of simulation. In those cases creditors may seize notwithstanding the apparent transfer, and if enjoined may plead and show the simulation on the trial of the injunction.

      Where the thing sold remains in the possession of the seller, there is reason to presume the sale is simulated; and the parties must adduce proof of the reality of the sale. C. C. 2456.
    Where it is proved that the mortgage debts have been paid, it is not necessary to make the mortgagees parties to a proceeding for the erasure of the mortgages.
    Where the judgment enjoined bears the highest rate of conventional interest, no other interest will be allowed upon the dissolution of the injunction.
    A prayer for general relief does not authorize the annulment of fraudulent sales which are not specially attacked in the pleadings.
    APPEAL by defendant from the Fourth District Court of New Orleans, Strawbridge, J.

      J. R. Grymes for appellee.
    The action was one of revendication and could not be maintained by an individual creditor, to annul contracts made before his debt accrued. C. C. 1988. 5 N. S. 96 and 633. 4 L. R. 142. That the case was not embraced within the exceptions to the above rule, as in the case in 13 L. R. 551, and C. C. 1915.
    The answer to the injunction was not a plea in reconvention, but an original demand which could not be tried until regularly put at issue; either by replication or judgment by default.
    The mortgages sought to be cancelled could not be erased, because the mortgagees were not made parties to the proceeding.

      W. C. Micou for appellant.
    The demand contained in the answer to the injunction, was a plea in reconvention, which did not require to be put at issue. before trial. Act. 1839, sec. 7, amending C. P. 375. 5 R. R. 180. 3 N. S. 363. C. P. 328, 329, 477. 5 L. R. 450. 4 L. R. 266. 2 L. R. 284. 3 L. R. 100.
    Even if an answer had been required to the reconventional demand, the plaintiff had waived the right to urge the objection by going to trial on the merits without raising the question. 4 L. R. 482. 12 N. S. 316. 1 N. S. 566. 12 R. R. 194. 7 N. S. 430-
    Simulated sales are not contracts. They may be attacked whenever set up, without being subjected to the provisions of the Civil Code upon the subject of revocatory actions for the annulment of fraudulent contracts. C. O. 1754, 1772. 2 Zacharne, 341, sec. 313, note 2. 24 Pothier Pand. 432,1. 5, tit. 17. Ib. 1. 50, tit. 17. Merlin verbo Simulation. 13 L. R. 129. 9 R. R. 491.
   The judgment of the court was pronounced by

Eustis, G. J.

The defendants who are judgment creditors of James Erwin, caused to be seized, under execution as his property, three lots of ground situated within the limits of this city. The plaintiff enjoined the sale on the ground that he was the true and lawful owner of the property seized, and in actual possession thereof at the time of the seizure.

The answer avers that the property seized is really the property of James Erwin, and liable to execution for his debts. That the plaintiff is not and never was the owner of any part thereof, but has merely lent his name and assumed a nominal ownership. That James Erwin, although the real owner and possessor, has been in the habit of using the name and procuration of the plaintiff, for the purpose of concealing his property from the just pursuit of his creditors.

The defendants then assuming the character of plaintiffs in reconvention further charge that the plaintiff has not only received simulated transfers of the property seized, but still farther to deceive and delay the claims of the defendants, as creditors of James Erwin, has colluded with him to cover other properties, and by various devices to prevent and delay their recourse against it, under the allegation that they fear and believe that the property seized will not be sufficient to satisfy their claim, the defendants ask that a number of sales conveying to Andretv Enoin other property alleged to belong to James Erwin, be declared simulated, and that sundry judicial and conventional mortgages inscribed against that property and the property seized, be ordered to be erased from the records, on the grounds that they were either originally simulated, or that they have long since been satisfied and extinguished.

No answer was filed to this claim in reconvention, and the parties went to trial without a judgment by default having been taken upon it.

The district judge appears to have been satisfied that the allegations of the defendants were sustained by the evidence; but the acts and transfers of property complained of by them having taken place before their debt accrued, he was of opinion that under article 1988, C. C., they could not contest the validity of those acts and transfers, and perpetuated the injunction on that ground.

The defendants appealed.

The counsel for the plaintiff contends that the defendants, so far as they are plaintiffs in reconvention have tried their case too soon ; that theirs is a clear and distinct action of revendication, independent and beyond the scope of the original action, and that before it could be tried an issue in fact must be made by answer, or tacitly by a judgment by default. He farther maintains that no judgment can be rendered in relation to the mortgages referred to in the answer, until the defendants shall have made the mortgagees or persons in interest parties to the suit, and given them an opportunity of defending their rights.

The claim in reconvention is based upon the amendment to art. 375 of the Code of Practice, which provides that when a plaintiff resides out of the State, 'the defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with, or incidental to the main cause of action.

It is a settled rule of practice that no answer is necessary to ordinary demands in reconvention, and as the able and vigilant counsel who represented the plaintiff, went to trial on the whole case, without filing an answer or raising the objection now made, as he introduced evidence on the reconventional demand, and exeepted to the evidence offered by the defendants on grounds inconsistent with those now assumed, he must have considered the rule as applicable to this case also. Had an answer been necessary, it appears to us that these facts would authorize the presumption that it was waived, the case was fairly tried, and as no legal right has been lost to the plaintiff, in consequence of the course pursued, we do not feel ourselves bound to open the case on the grounds alleged.

The exceptions taken by the plaintiff to the opinion of the court, admitting the parol evidence offered by the defendants, were properly overruled — the acts, sayings, and declarations of James Erwin, going to establish the simulation alleged, were proper evidence under the allegations of the defendant. Martin v. Reeves et al., 3 N. S. 22. Groves v. Steel, 2 Ann. 480. The other exceptions taken by plaintiff’s counsel to the opinion of the court, admitting in evidence the records of other suits mentioned in the bill of exceptions, and the documentary evidence in some of those records, were not, in our opinion, tenable. The records were clearly admissible to prove rem ipsam ; the pleadings and acts of the parties in those proceedings, were also admissible and could be considered, in estimating the intentions of the respective parties. So far as manifested by those pleadings and acts, the oral testimony in those causes was not specially offered in the court below, and is not therefore considered here; but the documents on file in some of those causes, were offered, and so far as they are signed by the respective parties, were admissible against them, and have been considered by us.

The plaintiff’s counsel also excepted to the opinion of the court, admitting in evidence certified absti-acts from the office of the recorder of conveyances— those certificates are in the usual form, and were received to prove the inscription of the acts to which they refer. We are not aware that the proof of the inscription could have been made in any other way.

We cannot assent to the proposition, that it is necessary to make the original mortgagees parties to this proceeding. If the evidence sustains the allegation in the answer that the debts, which those mortgages were intended to secure, have been paid by James Erwin, the original mortgagees have no longer any interest in the matter. James Erwin, on producing the mortgage notes to the recorder of mortgages, could have the mortgage erased from the record, without notice to these parties. The court in ordering the erasure will only exercise his right.

It is the settled jurisprudence of this court, that sales of property made without any intention in the parties to bind themselves, are not contracts, and that between the parties, they effect neither the title nor the possession of the original owner, so far as his creditors are concerned. The distinction between a fraudulent contract and a mere simulation, has always appeared to us elementary. A contract is not the instrument of writing by which it is witnessed. L. C. 1755. It results exclusively from the consent, the aggregatio mentium of the parties to it, and without such consent no contract can exist. Hiriart v. Roger, 13 S. R. 129, and authorities there cited. Merlin verbo Simulation.

We have repeatedly held, that the chapter of the code regulating the revocatory action is not applicable to cases of simulation, and that in those cases creditors may seize notwithstanding the apparent transfer, and, if enjoined, may plead and show the simulation on the trial of the injunction. This is also the jurisprudence of France, under dispositions of law similar to ours, and we cannot better express our views in relation to simulation, than by adopting the language of Zacharite on the subject.

“ The revocatory action,” says that author, “is often mistaken for the action en declaration de simulation. This is an error. The object of the first is to avoid serious but fraudulent, contracts. The object of the second is to cause to be declared simulated, acts, the appearance of which is contrary to truth. This distinction is not one of theory only : it leads to important practical results. For instance, the actio polliana cannot be exercised except after the insolvency of the debtor is judicially ascertained, and is only allowed against the acts which have caused or consummated that insolvency, while those conditions are not required for the exercise of the other action; again, the actio polliana only belongs to the creditor whose claim ascends to a date anterior to that of the act attacked; it is otherwise with the action based on simulation.” 2 Zachariai, 341, note 2, and authorities cited.

The defendants have a clear right to maintain their seizure, if they have shewn the simulation alleged.

For the purpose of making that proof, they have introduced witnesses who testify that James Erwin has been for many years a resident of this city; that at one time he owned large and valuable possessions here, and was considered a man of great wealth; that he subsequently became embarrassed in his circumstances, and suddenly ceased to own any real estate in his own name. The record shows that at the same time, the plaintiff in injunction, who is the brother of James Erwin, became the apparent owner of real estate, notes and judgments to the amount and value of several hundred thousand dollars, all of which were either derived directly from James Erwin, or acquired from others by James Erwin, under a power of attorney from the plaintiff, or purchased by the plaintiff at sheriff’s sale, in the collection of debts transferred to him by James Erwin.

The evidence further shows, that during all this time, and for years before, the plaintiff has been a resident of Nashville, in the State of Tennossee, a man of large family and very moderate means, employed in the capacity of agent, by one of his sisters ; that, although for some years past he has been in the habit of spending the winter in New Orleans, he has never, to the knowledge of the witnesses, interfered or meddled in any manner whatever with any of the property in his name here; that about the time of the first transfers to him, he gave an illimited power of attorney to James Erwin, who has generally acted under that power since, though in instances stated by the witnesses, he continued to act in his own name ; and finally, that the control and possession of all tlie property transferred to the plaintiff, has remained, in James Erwin.

In all cases where the thing sold remains in possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must adduce proof that they are acting in good faith, and establish the reality of the sale. C. C. 2456.

Under the facts of the case, this absolute rule of law made it incumbent upon Andrew Erwin to establish the reality of the contracts under which he pretends to hold. He has made no attempt to do so, and the evidence of the defendant, already referred to, satisfies us, as it did the district judge, that the attempt would have been vain, and that the muniments of title adduced by him, are mere shadows cast upon the title of the real owner, James Erwin.

The injunction must therefore be dissolved, and the defendants allowed to proceed under their execution.

The judgment enjoined bearing the highest rate of conventional interest, no other interest will be allowed on the dissolution of the injunction.

The reconventional demand now remains to be considered. It is strictly the action en declaration de simulation, mentioned by Zachariæ.

The testimony in the record has reference .to all the properties and rights mentioned in the reconventional demand, as well as to the lots seized. It has satisfied us that there is neither reality nor truth in any of the transactions under which the plaintiff claims. We will therefore consider And rezo Erwin as being in fact James Erwin, and finally close the demand in reconvention so far as the state of the record will enable us to do so. It contains no evidence of the transfer to Andreio Erwin of the lands described in the reconvention, as being situated in the parish of Caddo. This portion of the claim must therefore be dismissed, and we do not think the prayer for general relief sufficient to authorize us to set aside other sales of land and slaves, made to the plaintiff by James Erwin.

To set aside the judicial sale of the batture in front of the Pulley square, and to obtain the erasure of the mortgages which affect that square, the defendants l'ely upon the documentary and oral evidence found in the transcript of the record of White v. Irwin, introduced by them in evidence; that evidence not having been expressly offered in the court below, we have not considered it. The documents and testimony found in a record offered in evidence cannot, because they form part of the record, be received as proof in another suit. If in a particular case such evidence is admissible, it is so per se on other grounds independently of the record to which it is attached. Baptiste v. Soulie, 132. R. 270. This portion of the claim in reconvention must also be dismissed.

In allowing the remainder of the reconventional demand, we deem it an act of- mercy to these parties not to go into full details of all the facts disclosed in the record. The ends of justice will be answered by stating the conclusions to which the evidence has led us. We are of opinion, that the titles of Andrew Erwin, first, to the batture portion of the lot of ground called the saw-mill lot; second, to the undivided half of the batture in front of lots Nos. 1, 2, 3, 4, 5, 6, in the faubourg Delord ; and third to lots Nos. 7, 8, 9, 14, 23, 24, 30, of the Pulley square are simulated; and that all those lots were at the time of the transfers to Andrew Erwin the property of James Erwin, and liable to execution for his debts.

We are further of opinion, that the judicial mortgage resulting from the judgment in the case of the Bank of Alabama v. James Erwin, has been paid and extinguished; and that the mortgage granted by the plaintiff to James Erwin, on the batture in front of the saw-mill lot, is a simulation.

It is therefore ordered that the judgment in this case be reversed. It is further ordered that the injunction be dissolved, and that the defendants be allowed to proceed under their execution. It is further ordered, that the plaintiff and A. J. Burnley, his surety on the injunction bond, pay in solido, to the defendants, the sum of nine hundred dollars damages, for the wrongful sueing out of the injunction. It is further ordered that the titles of Andrew Erwin, 1st. To the batture portion of a lot designated as the saw-mill lot, on a plan drawn by Joseph Pilié, city surveyor, bearing date the 9th of November, 1829, and annexed to an act passed before G. JR. Stringer, late notary in this city, on 12th April, 1830. 2d. To the undivided half of the batture lying in front of lots Nos. 1, 2, 3, 4, 5, and 6, situated in fauboux-g Delox-d, agreeably to a plan of Joseph Pilié, bearing date 30th March, 1832, and annexed to an act passed before L. T. Caire, notary public, between D. F. Burthe and John Green, bearing date 26th April, 1832; and 3d. To lots Nos. 7, 8, 9, 14, 23, 24, and 30, on the Pulley square, according to the plan of J. Schrieber, bearing date 30th March, 1837, and deposited at the time in the office of W. Y. Lewis, notax-y public, be and they are hereby adjudged to be simulated; and the said lots to be the property of James Erwin, and liable to execution for his debts. It is further ox-dered, that the judicial mortgage x-esulting from the recording of a judgment of the president and directors of the Bank of Alabama, against James Erwin, rendered by the district court of this city, on the 13th January, 1843, for the sum of seventy-five thousand dollars, which judgment was transferred by the Bank of Alabama to Isaac JHJ. Erwin, and by him to Andrew Erwin, be cancelled and erased from the records; the judgment having been paid and extinguished by James Erwin. It is further ox-dex-ed, that the mortgage granted by Andrew Erwin, by act passed before Wm. Christy, notary public, on the 21st November, 1842, in favour of James Erwin, upon the batture of the saw-mill lot, to secure the sum of $25,000, be adjudged to be simulated, and that as such it be cancelled and erased fx'om the records. It is further ordered, that thex-e be a judgment of non-suit on the remainder of the claim in reconvention; and that the plaintiff pay costs in both courts.


author: Eustis, C. J.

text:
    Peter B. Taylor v. Henry Penny.
    An agreement with A. that he might have a fourth interest in a stranded vessel which B. had purchased and which had to he gotten off, did not vest in A. ah interest which he could transfer to a third person without the consent of B. It was an agreement to take in A. as a psrtner, and gave him no right to impose an unknown partner on B.
    APPEAL by plaintiff from the Fourth District Court of New Orleans, Strawbridge, J.
    Submitted by J. A. Bozier, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 8th January, 1847, the brig Mount Vernon, then lying stranded at the bar of Tampico, was sold under an order from the American Consul, appointing competent persons to hold a survey on said brig. The sale was made by the plaintiff, who is an auctioneer, at public auction in Tampico, and the defendant became the purchaser for the sum of $1,0.50, of which the sum of $750 was received. The petition alleges, that subsequent to the sale the plaintiff sold one fourth of his interest to Edwin B. Jenkins, for the price of three hundred dollars, who assumed to pay such part of the whole price, and that the plaintiff advanced said sum on account of said Jenkins; that subsequently, to wit, on the 9th Jannary, the said Jenkins sold to the plaintiff his fourth interest in the brig as she lay for the price of $325, which sum was paid by the plaintiff.

This fourth interest in the brig Mount Vernon is the subj ect of the present suit. There was judgment for the defendant in the court below, and the plaintiff has appealed. The case has been submitted on a printed argument of counsel in behalf of the defendant, but no argument has been offered in behalf of plaintiff. It appears that the matter m dispute between these parties was adjudicated upon by the bench of justices at Tampico, a tribunal instituted by the military commander at that port, which was at the time in the occupancy of our forces. It was held by that tribunal, that the defendant was the sole owner- of the brig, and that the plaintiff had no interest whatever in her. The decree of this tribunal, it has been alleged, is res judicata between the parties, and it has been pleaded in bar of the present action of the plaintiff.

The full evidence on both sides being before us, we deem it unnecessary to determine on the force and effect to be given to this decree, inasmuch as our conclusions on the merits of the cause are in concurrence with it.

The testimony is very voluminous and on some points contradictory, but we think it clear that Jenkins never had an interest in the brig that he could transfer without the consent of the defendant. The defendant we think agreed that Jenkins might have a fourth interest. The brig was stranded, she was to be gotten off. Jenkins was a mariner as well as'the defendant and could have aided in that object. The agreement of the defendant was, evidently, persona], and did not create an intei-est which could be transferred. It was an agreement to take Jenkins as a partner, but gave him no power to impose on the principal party in interest an unknown or an obnoxious partner; nor does it appear that this agreement on the part of the defendant was acted upon or carried into effect in any manner by Jenkins, except by this attempt to sell out to the plaintiff.

The judgment of the district court is therefore affirmed with costs.