author: TaliaeeRRO, J.

text:
    No. 6154.
    State of Louisiana vs. Willis Holmes.
    Defendant claimed the right to sell certain medicines under his license as a retail merchant without getting another license as a druggist. It is true that merchant means a dealer in merchandise, which general term has a very extended meaning, covering all articles of commerce, including medicines, yet it will not be denied that, although the Legislature requires a license as retail merchant, which probably means a retail dealer in any and all kinds of merchandise, it can still, from motives of public policy, require a special license of certain kinds of dealers, such as peddlers and hawkers, under the thirteenth division of the first section of act Ño. lá of 1872, as well as of those who deal in certain kinds of merchandise, such as those who retail distilled liquors, sell medicines, keep a coffee, soda, or fruit stand, and many others.
    The twenty-seventh division of the same section provides that every person having more than one shop, store, or other establishment, or who shall exercise or follow more than one trade, calling, and business, shall pay the tax on each separately.
    Under the section aforesaid, if a retail merchant were to retail whisky, he would be liable to a bar-room-license; if he were to put up á soda fountain, or fruit-stand, or open a private market in his store, he would be liable for the extra license accordingly ; if he were to send out goods for sale as a peddler, or if, in connection with the sale of clothing, he were to employ a tailor or tailors, and, furnishing the cloth, have clothes cut and made to order for sale, in the one case he would have to pay an extra license as a peddler or hawker, and in the other as a merchant tailor. The same rule will apply to the sale of drugs and medicines by a retail merchant, a special license being required therefor under the head of druggist.
    APPEAL from the Parish Court, parish of Natohitoch.es. P. A. Morse, Special Juclge.

      M. J. Cunningham, District Attorney, for plaintiff ■•and appellee.

      Win. M. Levy and C. F. Dranguet, for defendant and appellant.
   TaliaeeRRO, J.

The district attorney of the Seventeenth Judicial District, acting upon a written notice furnished him by the tax-collector for the parish of Natchitoches, dated September 27,1876, brought this suit ■against the defendant, alleging that, during the year 1875, the defendant was doing the business of a druggist in the city of Natchitoches without a license from the State, and that he is liable for the druggist’s license of fifty dollars and the penalties prescribed by law for failure to pay the license. He prayed that an injunction issue restraining the defendant, Holmes, from selling drugs and medicines in the city and parish of Natchitoch.es, and from prosecuting the business of a druggist until lie-pays for and takes out the license therefor of fifty dollars, as prescribed by the revenue laws of the State, and for citation and judgment against the defendant for fifty dollars as a druggist’s license for the year 1875,. and the penalties prescribed by law for having been engaged in the business of a druggist during the year 1875 without such license and for costs of suit. An injunction was issued as prayed for, but was dissolved on bond.

The defendant answered, denying that he has been doing the business-of a druggist during the year 1875 and liable to pay the license required by law from persons engaged in the business of druggists. He avers that in the sale of certain articles, which are also sold by druggists, he did not compound drugs or medicines, or administer them, or counsel or advise their use as medicines; that they are articles generally used and sold by all country merchants, and not especially for medicinal use, or by the advice of physicians, and that under his merchant’s license he had the right to sell the articles claimed to be drugs. He prays to be dismissed with his costs.

Judgment was rendered against the defendant for fifty dollars for having been engaged during the year 1875 in the business of a druggist, without a license, and for the penalties incurred by him in so doing. The injunction restraining him from pursuing the business of a druggist without license was perpetuated. A motion for a new trial was overruled, and the defendant appealed.

'It was admitted that the defendant had been during the year 1875 selling without license the following medicines in unbroken packages as he receives them from the wholesale dealers in New Orleans: Quinine in one-ounce, half-ounce, and quarter-ounce bottles; patent pills of all kinds; patent bitters pf all kinds; castor oil, laudanum, paregoric, peppermint, spirits of nitre. Further admitted, that defendant breaks the packages received by him and retails by the ounce or otherwise as desired by customers the following medicines: Calomel, blue-mass,, epsom salts, borax, gum camphor, and powdered sulphur. Admitted further, that defendant does not compound medicines or fill physicians’ prescriptions, and that the medicines specified are generally sold by country merchants.

The defense in this case is placed mainly on the argument ah incon-venienti, and upon general custom. It is argued that in districts at a remote distance from towns and cities the practice of medicine would be of no beneficial use, unless country stores, under their merchant’s license were permitted to sell such medicines as the defendant in this case sold,, and which are looked upon by the whole civilized world as staple commodities; that the practice of selling medicines in this way by country merchants is universal throughout the land; that this practice has grown, into a custom írona a long series of actions constantly repeated, and has acquired the force of a tacit consent. It is contended that under the fifteen-dollar license required from each wholesale or wholesale and retail merchant, and every retail merchant, according to act No. 14 of March 6,1872, second division of section one, the defendant is entitled to sell medicines as it is admitted they are sold by him; that medicines' thus sold by a retail merchant form part of the goods he is permitted under his license to sell, and that he can not on that account be reckoned in the category of druggists and be required to pay the druggist’s license of fifty dollars.

It is not our province to consider the policy of the usage or custom' referred to,yet we maybe allowed to doubt whether this universal vending of medicines by persons for the most part ignorant and incompetent in such matters is not productive of as much evil as good to the community at large.

A brief and clear definition of the term “ druggist,” by a standard lexicographer, Dr. Webster, is that “ druggist properly means one whose occupation is to buy and sell drugs without compounding or preparation.” The term therefore has a much more limited and restricted meaning than the word apothecary, and we find little difficulty in concluding that the term druggist may be applied in a technical sense to persons who buy and sell drugs. A man may be a druggist in the sense of being a purchaser and vendor of medicines, whether he have a license as a druggist or not, although he can not legally deal in drugs (buying and selling) without a license. It was because the defendant pursued the business of buying and selling drugs during the year 1875 without procuring the license required by law; that is, by procuring a proper diploma and paying fifty dollars for it. Act No. 14, acts of 1872, seventeenth division of section one.

The reasoning of the district attorney on the subject, we think, has much force, and we are inclined to adopt it. He says: “Defendant claimed the right to sell these medicines under his license as a retail merchant. It is true that merchant means a dealer in merchandise, which general term has a very extended meaning, covering all articles of commerce, including medicines; yet it will not be denied that, although the Legislature requires a license as retail merchant, which probably means a retail dealer in any and all kinds of merchandise, it can still, from motives of public policy, require a special license of certain kinds of dealers, such as peddlers and hawkers, under the thirteenth division of the first section of act No. 14 of 1872, as well as of those who deal in certain kinds of merchandise, such as those who retail distilled liquors, sell medicines, keep a coffee, soda, or fruit stand, and many others. The twenty-seventh division of the same section provides that every person having more than one shop, store, or other establishment, or who shall exercise or follow more than one trade, calling, and business, shall pay the-tax on each separately. Under this section, if a retail merchant were to retail whisky he would be liable for a bar-room license; if he were to put up a soda fountain, a fruit stand, or open a private market in his store, he would be liable for the extra license accordingly; if he were to send out goods for sale as a peddler, or, if in connection with the sale of clothing, he were to employ a tailor or tailors, and, furnishing the cloth, have clothes cut and made to order for sale, in the one case he would have to pay an extra license as a peddler or hawker, and in the other as a merchant tailor. The same rule will apply to the sale of drugs and medicines by a retail merchant, a special license being required therefor under the head of druggist.”

Our conclusion is that the judgment of the lower court is correct, and it is ordered accordingly that it be affirmed with costs.


source: Caselaw Access Project

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

license: Public Domain

text:
    No. 5985.

      W. W. Washburn vs. W. Van Norden et al.
    E. 0. Palmor, one oí the defendants, is sued on tlie following document, as seeurity for the payment of two notes executed by Yan ÜSTorden:
    “ whereas Mr. W. Yan Norden has given his two notes for twenty-live hundred dol- ' lars each, dated this date, respectively at seven and eight months, to his own , order and by him indorsed, now, in order to secure the holder of these notes and as a guarantee for their payment, I hold myself personally responsible to the holder of said notes for their prompt payment at maturity. It is understood that this agreement is confidential between Mr. Johnson Armstrong, representing all parties, and Mr. E. 0. Palmer, and is not to be used, except in the case of the death of Mr. Palmer or Mr. Armstrong, and if used before that contingency, is mill and void.”

    It is contended that, as the document has been produced in evidence against E. C. Palmor before the death of himself or Armstrong, the obligation is null. But it is evident that unless the document could be produced in evidence in court, the guarantee could not have been proved, as the promise to pay the debt of another can not be proved by parol; nor was this guarantee to take effect only at the death of one of the parties named, for he bound himself for their prompt payment at maturity. The evident intention of all parties was that the fact that the guarantee had been given, should be kept secret from all but the parties and Mr. Armstrong, who was to hold said instrument, as the representative of all parties, until the maturity of the notes. If Palmer then kept his promise, the obligation would be surrendered to him, otherwise it would be used against him. Any other construction of this document would make it nugatory.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Randolph, Singleton & Browne, for plaintiff and appellee.

      Rice & Whitaker and Lacey & Butler, for defendants and appellants.
   Ludeling, C. J.

This suit is on two notes executed by the defendant, Van Norden. The defense is the same which he made in the ease of Benner vs. W. Van Norden, decided last year, and for the reasons therein stated the judgment should be annulled. The defense of E. 0. Palmer is the same as that made by Van Norden to the note, if he be bound on it; brit he urges that his guarantee was made on condition that the evidence of it should not be produced, except in case of the death of said Palmer or of Armstrong. The written instrument is as follows:

“New ObleaNS, June 10,1873.
“ Whereas Mr. W. Van Norden has given his two notes for $2500 each, dated this date, respectively at seven and eight months, to his own order and by him indorsed, now, in order to secure the holder of these notes and as a guarantee for their payment, I hold myself personally responsible to the holder of said notes for their prompt payment at maturity. It is understood that this agreement is confidential between Mr. Johnson Armstrong, representing all parties, and Mi’. E. C. Palmer, and it is not to be used, except in case of death of Mr. Palmer or Mr. Armstrong, and if used before that contingency, is null and void. E. C. PALMER.”

It is contended that, as this document has been produced in evidence against E. C. Palmer before the death of himself or Armstrong the obligation is null. It is evident that unless the document could be produced in evidence in court, the guarantee could not have been proved, as the promise to pay the debt of another can not be proved by parol. Nor was this guarantee to take effect only at the death of one of the parties named, for he bound himself “ for their prompt payment at maturity’ The evident intention of the parties was, that the fact that the guarantee had been given, should be kept secret from all but the parties and Mr. Armstrong, who was to hold the said instrument, as the representative of all parties, until the maturity of the notes. If Palmer then kept his promise, the obligation would be surrendered to him; otherwise, it would be used against him to compel him to perform his obligation. Any other construction of this instrument would make it nugatory.

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

Wyly, J.,

dissenting. Defendants appeal from the judgment condemning them to pay plaintiff the amount of two promissory notes, one for $2500 and the other $1200. As to the defendant, W. Van Norden, the maker of the notes, the defense set up by him is similar to that in the case of Milton Benner against him, lately decided, and for the reasons therein given the judgment herein as to him was correct. But the defendant, Edward C. Palmer, was not a party to said notes. The obligation enforced against him as to the note for $2500 arose from the following contract:

“New ORLEANS, June 10,1873.
“Whereas Mr. W. Yan Norden has given his two notes for twenty-five hundred ($2500) dollars each, dated this date, respectively at seven (7) and eight (8) months, to his own order and by him indorsed, now, in order to secure the holder of these notes and as a guarantee for their payment, I hold myself personally responsible to the holder of said notes for their prompt payment at maturity. It is understood that this agreement is confidential between Mr. Johnson Armstrong, representing all parties, and Mr. E. C. Palmer, and is not to be used, except in the case of-the death of Mr. Palmer or Mr. Armstrong, and if used before that contingency is NULL AND VOID.
“(Signed) E. C. PALMER.”

The condition upon which the foregoing obligation was to be used has not happened, neither Johnson Armstrong nor Edward C. Palmer having died. It can not therefore be enforced, according to a stipulation on the face of the instrument. Plaintiff, however, was permitted by the court to prove by a witness what was understood by the suspensive condition in the foregoing written agreement, and this witness testified that Palmer meant that the said instrument was not to be “ tised by any body until the maturity of these notes, unless he died.”

The bill of exceptions to this testimony was well taken, because when the witness said Palmer meant the instrument was not to “ be used by any body until the maturity of these notes, unless he died,” his testimony clearly contained a matter against and beyond what is contained in said writing. To permit this evidence would be to interpolate words into the condition in said instrument so as entirely 'to contradict and alter the terms of said condition.

Considering, therefore, the suspensive condition contained in the instrument upon which Palmer’s liability is sought, I find no obligation upon which to give judgment against Palmer. As to him, the court erred in giving judgment for plaintiff. Although Yan Norden’s defense is not a good one, I am not prepared to say that his appeal was taken merely for delay. At the time this appeal was taken, the case of Benner, containing the same defense, had not been finally disposed of by this court, and that defense was at least a serious one.

For the reasons stated I dissent in this case.

Rehearing refused.


author: Moeoan, J.

text:
    No. 6132.
    Citizens’ Bank of Louisiana vs. G. M. Bailey and Sheriff.
    The defendant has caused certain mortgaged property to be seized by virtue of a judgment and advertised to be sold by the sheriff. The Citizens’ Bank, holding a prior mortgage on said property, enjoined the sale.
    It is not seen how the interests of the bank could be affected by these proceedings. It is clear that the mortgage creditor has the right to have the mortgaged property sold. It is also clear that no sale thereof, no matter how made, could affect the bank’s mortgage, unless the bank consented thereto.
    The bank has the right to cause the property upon which its mortgage rests to be sold, in whose hands soever it may be found, and nothing which the seizing creditor could do. unless with the bank’s consent, could affect its rights.
    As to the objection that the property is to be sold in lots of from ten to fifty acres, the reply is that under the present constitution it could be sold in no other way. It may be that the constitution does not affect the rights of the bank, as the bank’s mortgage was upon it before the constitution was adopted, but the result of this is simply that the bank’s mortgage, or its rights thereunder, remain un-divested and undisturbed by the sale which the plaintiff, through the sheriff, seeks to mako. upon this point, however, this court expresses no opinion.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      A. Pitot and (?. Wailes, for plaintiff and appellant.

      Barrow & Pope, for defendant and appellee.
   Moeoan, J.

The defendant, as executor of the last will of Robert H. Bailey, deceased, obtained judgment against Lewis E. Woods on notes dated January 1* 1869, secured by mortgage on certain property. He caused the property mortgaged to be seized, and it was advertised to be sold by the sheriff. The Citizens’ Bank, holding a prior mortgage on the property so advertised, enjoined the sale on the grounds:

First — That the property, instead of being advertised with the condition that the purchaser will have to assume the stock-note due the bank and secured by mortgage, is advertised to be sold for cash to an amount of nine thousand dollars, and an assumption of anote of three thousand one hundred dollars, with interest, the amount due the second-mortgage creditor, without mention of the stock-note due the bank, and of the manner in which it is payable under the charter.

Second — That the property is advertised to be sold in lots of ten to fifty acres, notwithstanding the mortgage of the bank anterior to the constitution of 1868, and without providing for a division of the stock attached to each respective lot.

We do not see how the interests of the bank can be affected by these proceedings. It is clear that the mortgage creditor has the right to have the mortgaged property sold. It is also clear that no sale thereof, no matter how made, could affect the bank’s mortgage, unless the bank consented thereto. The bank has the right to cause the property upon which its mortgage rests to be sold, in whose hands soever it may be found, and nothing which the seizing creditor could do, unless with the bank’s consent, could affect its rights.

As to the objection that the property is to bo sold in lots of from ten to fifty acres, the reply is that under the present constitution it could be sold in no other way. It may be that the constitution does not affect the rights of the bank, as the bank’s mortgage was upon it before the constitution was adopted, but the result of this is simply that the bank’s mortgage, or its rights thereunder, remain undivested and undisturbed by the sale which the plaintiff, through the sheriff, seeks to make; but upon this point we express no opinion.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 6285.
    Mrs. Nancy Lottspeich, Tutrix, vs. Jason T. Diboll et al.
    In a suit by Diboll against the Etna Lite Insurance Company judgment was rendered in his favor for the amount of the insurance policy, and the demand of Nancy Lottspeieh, who had intervened and claimed the amount of the policy, was rejected. The company appealed, but the surety on the appeal bond having failed to justify, or not being good, execution issued, and the company paid to the sheriff the amount of the judgment. The intervenor had also taken a de-volutive appeal. To prevent the sheriff from paying over to Diboll the money collected, the intervenor Lottspeich sued out this injunction. The court perpetuated the injunction, and Diboll appealed.
    The court beloiv erred. The controversy in regard to the rights of the contestants on the life insurance company was pending before this court on appeal, and the court a gúa had no jurisdiction, further than to test the solvency of the sureties on the appeal bond.
    The time for granting conservatory orders at the reauest of the litigants had passed. ' until the appeal was disposed of by this court, the court below could grant no orders or assume no jurisdiction in the premises.
    APPEAL from the Fifth. District Court, parish of Orleans.- Gullom, J.

      Ldbatt, Aroni & Clinton, for plaintiff and appellee.

      Ogden & Sill and John H. Ilsley, for defendant and appellant/
   Wyly, J.

Jason T. Diboll sued the Etna Life Insurance Company on a policy of life insurance. Plaintiff intervened in the suit, claiming the amount of the policy and denying Diboll’s right to any part thereof, except the amount of certain premiums advanced by him. Judgment was rendered in favor of plaintiff for five thousand dollars, the amount of the insurance, and the demand of the intervenor was rejected. From this judgment defendant took a suspensive appeal; the intervenor also took a suspensive appeal, as she alleges. The surety on the appeal bond of defendant failed to justify, or was not good; execution issued, and the insurance company paid to the sheriff the amount of the judgment. To prevent the sheriff from paying over to Diboll the money collected on said judgment the intervenor sued out this injunction. The court perpetuated the injunction and Diboll appealed. "We think the court erred. The controversy in regard to the rights of the contestants on the life insurance policy was pending before this court on appeal, and the court below had no jurisdiction, further than to test the solvency of the sureties on the appeal bonds. The time for granting conservatory orders at the request of the litigants had passed. Until the appeal was disposed of by this court, the court below could grant no orders or assume no jurisdiction in the premises.

It is therefore ordered that the judgment appealed from be annulled, and that the injunction herein be dissolved with judgment against plaintiff and the surety on the injunction bond in solido for one hundred and fifty dollars damages and costs of both courts.

Rehearing refused.


author: Lodeling, C. J.

text:
    No. 6146.
    Julia D. Kelly and Husband vs. John Davis and Wife.
    This is a suit by attachment of real estate in the town of Vidalia, parish of Concor-dia. The defendants reside in the State of Mississippi. The defense is, that Mrs. Davis acquired said property from her husband for a certain sum of money which was paid by crediting to that amount a judgment she had obtained against him in Mississippi. This alleged transfer was made in the State of Mississippi, wbere-t-fee real estate ie situated. The capacity of the parties to make this contract must be determined by the laws of Mississippi, where they resided. Its effects on real estate here must be controlled by the laws and policy of Louisiana.
    By the laws of Mississippi any deed from the husband to the wife for her use shall be void as against creditors who were such at the time of executing the deed. The record shows that, at the date of this transfer from Davis to his wife, he was the debtor of the plaintiffs. So that, when the deed was executed, the parties could not enter into such contract.
    But if the question be tested by the laws of Louisiana, Mrs. Davis will fare no bettei-. The contract, if valid here, would be a (lation en paieinent, and creditors would have the right to require her to prove the validity of her judgment. This she has not done, and couldnot do; for that judgment obtained by default, was made final in contravention of a prohibitory law of Mississippi, and whatever is done in violation of a prohibitory law is null.
    APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.

      Mayo & Spencer, for plaintiffs and appellees.

      Q. Spencer Mayo, curator ad hoc and advocate for defendants and appellants.
   Lodeling, C. J.

The plaintiffs sued the defendant, John Davis, and attached as his property certain lots and houses in Yidalia, Louisiana. The defendants are residents of the State of Mississippi. The plaintiffs allege that John Davis is indebted to them; that he is a non-resident, and that he has made a fraudulent and simulated transfer of the said lots and improvements to his wife to defraud petitioners. They pray that the saicl transfer be declared fraudulent and simulated, and that their attachment be maintained, etc.

The defense is, that the property attached belongs to Honora Davis, the wife of defendant; that she acquired it by purchase from her husband for nine thousand dollars, which was paid by crediting the judgment she held against him with that amount. She denies the plaintiffs’ right to attack her sale in this mode, and she alleges that she obtained a judgment against her husband in the State of Mississippi, in part payment whereof this sale was made to her, and she prays the attachment may be set aside.

This transfer was made in the State of Mississippi, to take effect in Louisiana, where the real estate is situated. The capacity of the parties to make this contract must be determined by’the laws of Mississippi, where they resided. Its effect on real estate here must be controlled by the laws and policy of Louisiana. By the laws of Mississippi “ any deed from the husband to the wife for her use shall be void as against creditors who were such at the time of executing the deed.” Revised Code of Mississippi of 1871, section 1738. The record shows that, at the date of this transfer from Davis to his wife, he was the debtor of the plaintiffs. So that, when the deed was executed, Quoad John Davis, the parties could not enter into said .contract, But if tested by the laws of Louisiana, she will fare no better.

The contract, if valid here, would be a dation en paiemeni, in part satisfaction of a judgment, and creditors would have the right to require her to prove the validity of her judgment. This she has not done, and could not do. The basis of her claim is $18,980, being the amount due her for personal services during their marriage, at the rate of six hundred dollars per annum, and two thousand dollars loaned money and interest. No proof whatever was offered as to the amount of loaned money, nor for services rendered. The claim is preposterous. But it is contended that she has a judgment of a court of the State of Mississippi, and that full faith and credit is due to that. The same effect must be given to that judgment here that would be given to it in Mississippi. The record shows that on the twenty-second of April, 1874, her petition or declaration against her husband was filed with the clerk of the circuit court of Adams county. On the same day process issued, and it was served on the plaintiff herself, at her domicile, the husband being absent. On the first day of May judgment by default was rendered against the husband, John Davis, for $18,980, and on the fourteenth of May execution was issued and returned nulla bona. No proof was required, and none was made, to obtain the judgment by default, but it was rendered and made final at the first term of the court, in contravention of a prohibitory law of Mississippi, which declares that “ no judgment by default shall be rendered at the return term, when it shall appear that the process has not been served personally on the defendant.” Revised Code of Mississippi of 1871, section 632.

Whatever is done in contravention of a prohibitory law is null. The evidence sustains the plaintiffs’ demands.

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


author: Howell, J. Morgan, J.,

text:
    No. 6015.
    Etienne Villavaso, James E. Zunts, Subrogated, vs. Augustus W. Walker. Joseph Hernandez, Intervenor and Third Opponent.
    Two acts of mortgage executed In 1850 and 1853 by Cucullu in favor of Yillavaso have not been reinseribed, and the question is whether the inscription and re-inseription of the act of sale from Cucullu to walker, reciting the said mortgage from Cucullu to Yillavaso, preserve the said mortgage. The question must be answered negatively.
    The article 3309, It. O. C„ requires that the reinseription shall be made in the same manner in which the first inscription is made. This has not been done in thi s case.
    Knowledge has been held not sufficient to dispense with reinseription.
    The position of plaintiff that Hernandez, the intervenor and third opponent, who claims to be paid, as holder of one of Walker’s notes, in preference to plaintiff or his subrogee, Zunts, is estopped from setting up a want of reinseription, because he acquired his rights from Cucullu, can not be maintained. Hernandez is clearly a third person as to the acts of mortgage given by Cucullu to Yilla-vaso which have not beqn reinseribed. It was within the power of Yillavaso or his subrogee to preserve these mortgages by having them reinseribed according to law.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J.

      Lacey & Butler, L. A. Sheldon, and John U. Ilsley, for plaintiff and appellant.

      A. Q. Brice and John 8. Tully, for defendant and appellee.
    Senimes & Mott, for third opponent and appellee.
   Howell, J.

In 1850 and 1853, respectively, J. S. Cucullu executed two notes for ten thousand dollars each, secured by mortgage in two several acts on his plantation known as “ Myrtle Grove,” in the parish of St. Bernard. On twenty-eighth September, 1857, Cucullu sold by notarial act the said plantation and the slaves thereon to A. W. Walker for one hundred and thirty-five thousand dollars, twenty-five thousand dollars cash, two notes of Walker for five thousand dollars each, six notes of Walker for §13,333 33J each, and the assumption of the two notes and mortgage of Cucullu hold by Yillavaso. On the twenty-first of October, 1861, Villavaso obtained, on the said three acts, a writ of seizure and sale, and, after a protracted litigation, the said plantation was advertised to be sold, under said proceedings, on the third of October, 1874; whereupon Joseph Hernandez filed a third opposition, claiming the proceeds of the sale as holder of Walker’s notes for $13,333 33£, with interest, in preference to Villavaso or his subrogee, Zunts, on the ground that the mortgage in favor of Villavaso had lapsed or perempted for want of reinscription.

The two acts of mortgage, executed in 1850 and 1853 by Cucullu in favor of Villavaso, have not been reinscribed, and-the question is, does the inscription and reinscription of the act of sale from Cucullu to Walker, reciting the said mortgage from Cucullu to Villavaso, preserve the said mortgage ?

Article 3369, R. C. C., says the effect of the inscriptions “ ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time (ten years) in the manner in which they were first made.”

In this case the inscription of the mortgages in favor of Villavaso was made by recording the acts at large. In the act of sale of the land and slaves by Cucullu to Walker, the following is the recital: “ And for the balance of the said price the said purchaser hereby binds himself to pay in the place and stead of the said J. S. Cucullu two promissory notes of the sum of ten thousand dollars each, drawn by the said Cucullu, and made payable as follows, to wit: One dated on the first day of February, 1850, payable twelve months after date, and secured by mortgage on the plantation only, granted by said J. S. Cucullu to Etienne Villa-vaso by act before L. A. Ducros, recorder of the parish of St. Bernard, on the seventh day of February, 1850, and the other dated on the fourth day of February, 1853, payable one year after date, and secured by mortgage on said plantation only, granted by the said Cucullu in favor of Etienne Villavaso, by act before the said recorder, on the fourth day of February, 1853; both which notes have been renewed from time to time, and now fall due on the first day of February next; and the said purchaser also assumes the two mortgages by which the payment of the said two notes is secured.

“By reference to the annexed certificate of the-recorder of said parish of St. Bernard, it will appear that the said plantation and slaves are free from incumbrances, with the exception following, to wit:

“ First — The two mortgages of Etienne Villavaso kerebefore described and assumed.” * * * * * * . * *

It is clear that the inscription and reinscription of the foregoing are not the manner in which the inscriptions of the said two mortgages were first made, and are not therefore a faithful compliance with the article •oí the Code cited. The article requires that the reinscription shall be made in the same manner in which the first inscription is made. See 21 An. 204; 22 An. 402, 453. .

Knowledge has been held not sufficient to dispense with reinseription. ■21 An. 426; 22 An. 402.

The position of plaintiff, that Hernandez is estopped from setting up a want of reinscription, because he acquired his rights from Cucullu, and in support of which he cites the case of Batey vs. Woolfolst, 20 An. 385, can not be maintained in this case. Hernandez is clearly a third person •as to the acts of mortgage given by Cucullu to Villavaso, which have not been reinscribed. It was within the power of Villavaso or his subro-■gee to preserve said mortgages by having them reinscribed according to law.

Judgment affirmed.

Morgan, J.,

dissenting. I think this case is governed by the case of. Beattie vs. Woolfolst, 20 An. —. Under the authority of that case, I think the judgment of the district court should be reversed.

I therefore dissent.

Behearing refused.


author: MORGAN, J.

text:
    No. 4482.
    J. P. Harrison, Jr., vs. New Orleans, Jackson, and Great Northern Railroad Company.
    Tliis is a suit for damages in consequence of an alleged violation of contract.
    It is impossible to say what will be the result of an enterprise which depends upon the employment of labor and the wants of a community, and so the future profits which the plaintiff expected to make can not be considered. The question is. what damages had the plaintiff sustained up to the time this suit was instituted, and how these damages are to be ascertained.
    The plaintiff is not entitled to any interest on the amount of money expended by him in the erection of his buildings, etc.; neither can the defendant be held responsible for the difference between the cost of the brick-yard with its buildings and its present value. It may have been extravagantly built; it may not have been worth the price paid for it; it may increase in value after the rendition of this judgment. In other words, it is subject to the same fluctuation in value that every other species of property is subject to, and does not form an element in the consideration of damages.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      John A. Campbell, John Bay, and B. H. Marr, for plaintiff and ■appellee.

      Semines & Mott, Hayes & New, and L. JE. Simonds, for defendant and appellant.
   MORGAN, J.

This is a suit to recover from the defendants one hundred thousand dollars damages.

Plaintiff alleges that his father, whose interests in this matter have nil been transferred to Mm, desiring to establish a brick-yard at Ham-jnond Station, a point on the line of the Jackson Railroad, entered into a contract with the defendants by which they agreed, between the months of March and October, 1871, to furnish transportation for all the bricks that might be offered, and that between the months of October and March they would furnish transportation for not less than sixty thousand bricks per week.

He says that extensive and expensive works were put up by him at Hammond Station, and that he was prepared to manufacture large quantities of bricks, upon which he would have made a profit in the sum claimed. He avers that he was deprived of these profits by reason of the defendants not complying with their contract.

That the defendants did not comply with their contract is fully made out by the evidence, and that the plaintiff is 'entitled to damages there is no doubt. The difficulty is in assessing the damages. It is impossible to say what will be the result of an enterprise which depends upon the employment of labor and the wants of a community, and so the future profits which the plaintiff expected to make can not be considered. The question is, what damages had the plaintiff sustained up to the time this suit was instituted, and how these damages are to be ascertained.

The district judge adopted as the basis of his judgment the cash disbursements made by plaintiff, including cost of property, amounting to $137,797 55, to which he added interest, $10,208, making the total debit $148,005 55. From this he subtracted receipts, $86,554 25, value of lands, stock, etc., $27,575 10, making in all $114,129 35, thus leaving a balance of $33,-876 20 in favor of plaintiff, for which he gave judgment.

This mode of computation is not correct, we think. The plaintiff is not entitled to any interest on the amount of money expended by him in the erection of his buildings, etc., and the account upon which the disbursements are charged includes many things besides money expended in making bricks. Neither can the defendants be held responsible for the difference between the cost of the brick-yard, with its buildings, and its present value. It may have been extravagantly built; it may not have been worth the price paid for it; it may increase in value after the rendition of this judgment. In other words, it is subject to the same fluctuation in value that every other species of property is subject to, and does not form an element in the consideration of damages. Ve are satisfied, however, that the plaintiff is entitled to some damages, and we fix them at seven thousand and five hundred dollars.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by reducing the amount thereof from $33,876 20 to $7500, and that as thus amended the judgment beaffirmed, defendants-to pay costs in the court below, plaintiff to pay those of appeal.

Rehearing refused.


author: Howell, J. LudeliNG, C. J.,

text:
    No. 4675.
    Succession of John Heavia. On the Third Opposition of Daniel L. Stanton.
    The Second District Court had jurisdiction to determine whether or not property was properly seized under a writ issued by its authority. The levying of the fieri facias brought the property within its jurisdiction, and it was the only tribunal to pass upon the correctness of the seizure.
    Act No. 2 of 1873, in its first section, provides that said act shall not be construed to prevent the Second District Court for the parish of Orleans from exercising all the powers granted by section five of act No. 2 of the special session of 1870, approved March 16, 1870.
    The reservations contained in said act of 1873 concerning the Second and Third District Courts were made in view of the exclusive jurisdiction of injunctions, in all other respects conferred on the Superior District Court created by said act; the jurisdiction of the other courts in other matters not mentioned in said act remaining undisturbed. The power of the respective courts to pass on and determine all matters connected with the jurisdiction of each, and the execution of writs issued by each, as it before existed, was not infringed.
    The Second District Court had jurisdiction of Johnson’s claim against the succession of Heavia and of the execution or enforcement of the judgment rendered thereon, and necessarily of all auestions arising in the execution or enforcement thereof, there being no limit as to value to its jurisdiction, as in the case of parish courts.
    If Stanton, the third opponent in this instance, were to institute a petitory or pos-sessory action to recover real property, he would of course have to go into a court of ordinary jurisdiction: but when his property is seized under an execution against another person, he can go into the court issuing the writ to have it released because it did not belong to the-debtor.
    Stanton having established the reality of his purchase, the property purchased by him could not therefore be seized under an execution against his vendor until the sale was duly set aside.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      li. H. Jlarr, for C. S. Johnson, appellant.

      Bice, & Whitaker, for Stanton, third opponent and appellee.
   Howell, J.

S. C. Johnson filed an opposition to the account presented by the widow of John Heavia, administering as tutrix, and obtained a judgment on his demand. Failing to get payment^ he took a rule on the tutrix to make her liable, personally, and upon issuing execution against her, seized certain property as belonging to her, whereupon D. L. Stanton filed an opposition, claiming the said property as owner by purchase from Mrs. Heavia prior to the seizure. No injunction having issued, the property was sold by the sheriff, and Johnson became the purchaser. Upon trial of the opposition, Stanton was declared the owner, and Johnson appealed.

In the brief Johnson’s counsel suggests that the Second District Court was without jurisdiction of the controversy between these parties. We think it clear that said court had jurisdiction -to determine whether or not property was properly seized under a writ issued by its authority. The levying of the fieri facias brought the property within its jurisdiction, and it was tlie only tribunal to pass upon the correctness of the seizure.

Act No. 2 of 1873, in first section, provides that ‘-'said act shall not he construed to prevent the Second District Court for the parish of Orleans from exercising all the powers granted by section five of act No. 2 of the special session of 1870, approved March 16,1870, * * * and shall not be held to deprive any judge or court of the power to issue injunctions to stay the execution of any order of seizure and sale, or any writ of execution or possession granted by such judge or court, and shall not be held to deprive any such judge or court of the power to issue the writ of injunction to stay the execution or enforcement of any judgment or order of sequestration, attachment, or provisional seizure made by such judge or court. The power reserved to the Second and Third District Courts to issue writs of mandamus and injunction in aid of their special jurisdiction and the power reserved to each of the district courts to issue writs of injunction to stay proceedings in said courts, as herein set forth, shall be exclusive of the Superior District Court herein created.”

These reservations were made in view of the exclusive jurisdiction of injunctions, in all other respects conferred on the Superior District Court, created by said-act; the jurisdiction of the other courts in other matters not mentioned in said act remaining undisturbed. The power of the respective courts to pass on and determine all matters connected with the jurisdiction of each, and the execution of writs issued by each, as it before existed, was not infringed.

The Second District Court had jurisdiction of Johnson’s claim against the succession of Heavia, and of the execution or enforcement of the judgment rendered thereon, and necessarily of all questions arising in the execution or enforcement thereof, there being no limit, as to value, to its jurisdiction as in the case of parish courts.

If Stanton were to institute a petitory or possessory action to recover real property, he would of course have to go into a court of ordinary jurisdiction; but when his property is seized under an execution against another person, he can go into the court issuing the writ, to have it released because it does not belong to the debtor.

Upon the merits of this controversy we agree with the district judge that Stanton has established the reality of his purchase, and that, therefore, the property purchased by him could not bo seized under an execution against his vendor until the sale was duly set aside.

Judgment affirmed.

LudeliNG, C. J.,

(¡Assenting. The creditor of the succession obtained a judgment against the tutrix personally, and caused certain property to be seized as bers, under an execution issued against her individually. Whereupon one Stanton sued out a third opposition, claiming that the property belonged to Mm. The seizing creditor, in his answer, alleged that Stanton’s title was simulated.

The only question at issue is' the title of Stanton to the property seized. The Second District Court, which is a probate court, has not jurisdiction in the ease ratione personce and ralione materice.. The plaintiff and defendant are both living persons and strangers to the succession, and the matter in dispute is the title to real estate. By the express terms of article eighty-three of the constitution, the Second District Court of the parish of Orleans has “ exclusive probate jurisdiction,” and it has long been settled that titles to real estate can not be decided directly by the probate courts. 5 N. S. 217; 6 N. S. 305; 7 La. 378; 12 La. 214; 14La. 177; 15 La. 455; 17 La. 238; 3 Bob. 100; 4 B. 165, 290; 8 B. 488; 3 An. 582.

In Reels vs. Knight, 5 N. S. 10, it was decided that the probate court has no jurisdiction where plaintiff alleges title pleaded by defendant to be simulated, which is exactly the question involved in this case. If the act of the Legislature which gives courts the power to regulate the executions issued by them was intended to confer jurisdiction which they did not possess, it would, in this case, violate article eighty-three, -which makes the Second District Court a probate court exclusively. But I do not understand that to have been the intention.

I therefore dissent from the opinion of the court.

Mr. Justice Taliaferro concurs in this opinion.


author: Morgan, J.

text:
    No. 616.
    George T. Ventress vs. W. N. Collins, Sheriff, et al.
    The homestead law can not be in-Ned to defeat the vendor’s privilege, nor ean it be exercised upon property held in indivisión.
    irom the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      J. B. Watkins, for plaintiff and appellee.

      George ■& Taylor, for defendant and appellant.
   Morgan, J.

Plaintiff was married to N. Caroline Leavy. A community of property existed between them. He sued for a divorce. She reconvened and claimed a divorce from him. There was judgment in her favor. In settlement of the community he purchased her interest therein, giving, in part payment, his notes therefor, she retaining thereon ¡special lien and vendor’s privilege to secure their payment.

The notes were not paid at maturity. She caused the property to be .seized to satisfy her claim. Plaintiff enjoins the sale upon the ground that it will interfere with his homestead. The homestead law can not be invoked to defeat the vendor’s privilege, nor can it be exercised upon' property held in indivisión.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the injunction herein issued be dissolved in toto, with fifty dollars special damages and fifty dollars general damages, the costs in both courts to be borne by the plaintiff.


author: Taliaeerro, J. Taliaeerro, J.

text:
    No. 562.
    Mary Travis, Tutrix, Individually, vs. W. T. Insley, Administrator.
    A ease is here presented which makes it the duty of this court to enforce the law in relation to the obligations and liabilities of administrators. It is essential to-the rights of all persons interested in successions, whether heirs or creditors, that the weighty and responsible duties of administrators should be, as the law emphatically demands, well and faithfully performed. They are expected and intended to be faithful agents, regarding strictly what the law reauires of them and conforming in all their proceedings to its provisions, not speculators and spoliators looking to their own aggrandizement, reckless of the injury and ruin of those whose interests they have under their control. A sufficient showing has been made in behalf of the plaintiff in this case to grant the prayer of her petition for the removal of the administrator.
    APPEAL from the Parish Court, parish of Eichland. H. C. Potts, lawyer, selected to try this ease.

      Cobb & Gunby, for plaintiff and appellant.

      H. P. Wells <& Williams and Morrison & Farmer, for defendant and appellee.
   Taliaeerro, J.

The plaintiff, who is the grandmother and tutrix of the minor and sole heir of L. P. Simms, instituted this action to remove W. T. Insley, who had procured the appointment of administrator of the estate of L. P. Simms. The grounds set up for removal are unfaithfulness, and fraudulent mismanagement.

The administrator applied for and obtained aij order of sale of all the personal property of the estate of Simms, for the purpose, alleged by him, of paying the debts of the succession. The tutrix obtained an injunction restraining the sale, on the ground, among others, that there-were no debts due by the succession, except expenses of the last illness,. and that these have been paid by the firm of Irwin & Simms, of which the decedent was a member. On trial of the injunction it was dissolved and no appeal was taken from the judgment. The suit to remove the administrator was also decided adversely to the plaintiff, and she prosecutes this appeal.

L. P. Simms was the commercial partner of the firm of Irwin & Simms,, doing a large business in the parish of Eichland. It appears that Simms left a considerable amount of property, comprising his separate estate, independent of his equal interest in the partnership. His estate is shown to be solvent. Irwin qualified as liquidator to collect and settle debts of the firm, and controlled notes, accounts, and drafts due the firm amounting to about thirty thousand dollars. The complaint of the tutrix that Insley is acting unfaithfully and fraudulently in his administration she aims to make good by detailing various acts of his which she alleges to be wasteful, reckless, illegal, and uncalled for, causing loss and great injury to the estate, and a ruinous sacrifice of the property belonging to it. She shows that Simms died on the fifth of October, 1874; that on the tenth of October, 1874, the defendant applied for the administration of the estate; that this application was founded on no allegation of any right whatever to the administration; that he qualified on the third of November; that two days afterward he applied for and obtained an order for the sale of all the personal property of the succession to pay debts. It seems that at this juncture the grandmother of the minor having qualified as tutrix interposed and enjoined the sale, alleging there were no debts of any kind due by the succession of L. P. Simms, except expenses of the last illness, and that these were paid by the firm of Irwin & Simms; that Insley, when he obtained the 'order of sale, knew of no debts due by the estate. She avers with earnestness that at the date of the'order of sale there were no debts liquidated or acknowledged by the administrator as due or owing by the estate. The order of sale embraced the selling in lump, it seems, of the undivided half-share of the property and effects of the partnership belonging to L. P. Simms among the rest of the property comprising his succession. This was remonstrated against as wholly illegal and irregular, no petition having been made, and because a sale thus made would inevitably result in irreparable injury, and in violation of the minor’s rights. The injunction was dissolved, released on bond, as we have seen, and the administrator proceeded to a sale of the property on the thirtieth of December. The tutrix, subsequently to the sale, filed this suit to remove from office the administrator. In the petition in the case before us she reiterates the allegations made in her petition for injunction, and charges, further, that the sale was provoked, urged on, and made in violation of law by the administrator at the instigation of Irwin, and in his interest, and not in that of the minor. She alleges that although the order of sale directed the property to be sold for cash, at the appraised value by the inventory, yet no cash was paid to the administrator, but that all, or by far the greater portion, of the effects were sold to Irwin, the surviving partner, who retained the price, contrary to law. Interrogatories were propounded to Insley in relation to this sale, and among them one asking whether he received any money from Irwin for his purchase of Simms’s interest in the stock of goods and for other property of the estate of Simms purchased at the sale by Irwin. To this interrogatory he answered that he did not, assigning as a reason that Irwin was on his bond; that he knew of notes outstanding against the firm of Irwin & Simms and left the money in his hands to pay as they became due, which he said Irwin has paid.

It is alleged that, in the advertisement of the sale, the property to be sold was not clearly set forth and described as required by law, so as to inform the public of the specific property to be offered for sale, and with the view to attract bidders. But, on the contrary, the advertisement would discourage the attendance, especially of such as desired to purchase merchandise in small amounts, as the advertisement merely set forth that one half interest in a large stock of goods would be sold, and particularly where it was known that the owner of the other half would be a bidder. The stock of goods, it appears, was appraised by the invoices.

An examination of the evidence in this case brings us to the conclusion that all the allegations made by the plaintiff of bad faith and reckless conduct in office of the administrator, and the ruinous consequences to the interests and rights of the minor resulting therefrom, are fully established, with perhaps one exception only, and that one, the charge that the sale of the property was instigated and urged on by the influence of Irwin over the administrator. But, we must add that the evidence does not permit us to doubt that the acts of the administrator had a tendency to promote the interest of Irwin at the expense and detriment of the succession of Simms, and this to the knowledge and by the sanction of the administrator. Here a large estate, stated by Irwin on the stand as a witness, to be solvent, shown to be free from debt, except a medical bill or two and some other small debts, expenses of the last illness, is put under administration upon the application of a man not even alleging a claim of any sort to administer it, who, right upon the heel of his induction into office, files a petition for a sale of all the personal property of the estate, for cash, to pay its debts (almost the entire estate consisting, as it appears, of personal property), an order is obtained for the sale without the exhibition of a tableau or schedule of debts, and before any debt had been presented to the administrator for acceptance or acknowledgment. The sale is adroitly advertised so as to deter instead of inviting bidders. The surviving partner becomes the chief and almost exclusive purchaser, his purchases amounting to more than four thousand dollars. He pays not a cent. The administrator’s reason for not demanding the payment we have already seen. Insley, the administrator, it appears, received only about one hundred dollars from the sale. What becomes, then, of his anxiety to raise money by a cash sale to pay debts of the estate, when he makes no demand of money from the purchasers, and especially from the surviving partner, whose success in the liquidation of the partnership concern the administrator takes more interest in than he does, in the administration of Simms’s estate, for which he is acting under bond and oath ? It could not have escaped his notice that Irwin had in his hands assets to a large amount, wherewith to pay the partnership debts. It is shown that this administrator is a debtor of the firm of Irwin & Simmg. Irwin is the surety of the administrator on his official bond, and was his surety on his bond to dissolve the injunction. The administrator is one of Irwin’s sureties on his bond as liquidator- of the partnership business.

We are satisfied that a case is here presented which makes it our duty to enforce the law in relation to the obligations and liabilities of administrators. It is essential to the rights of all persons interested in successions, whether heirs or creditors, that the weighty and responsible duties of administrators should be, as the law emphatically demands, well and faithfully performed. They are expected and intended to be faithful-agents, regarding strictly what the law requires from them, and conforming in all their proceedings to its requirements; not speculators and spoliators looking to their own aggrandizement, reckless of the injury and ruin of those whose interests they have under their control. We conclude that a sufficient showing has been made in behalf of the plain-, tiff in this case to grant the prayer of her petition.

It is therefore ordered that the judgment appealed from be annulled, avoided, and reversed. It is now ordered that William T. Insley, administrator of the estate of L. P. Simms, deceased, be and he is hereby removed from the office of administrator of said estate. It is further ordered that the defendant pay all costs incurred in the prosbcution of this proceeding.

OjST APPLICATION POR A BEHEARING.

Taliaeerro, J.

Unfaithfulness in the discharge of his functions authorizes the discharge of an administrator from his office.

Has the administrator in this case been unfaithful in the discharge of the duties of his office ?

He administered the separate estate of Simms. That consisted of certain personal property and the interest of Simms in the partnership with Irwin. With this share of Simms in the partnership the administrator of Simms’s separate estate had nothing to do until a partition took place and Simms’s portion of the estate was definitely ascertained. The liquidation of the partnership affairs and business belonged exclusively to the surviving partner; with its indebtedness the administrator was not concerned. It was.no part of his business to sell Simms’s interest'in the partnership to raise money to pay the partnership debts. His business was exclusively confined to the separate estate of Simms until after the partnership business was settled, and by partition that interest was ascertained and passed over to him. When therefore he petitioned the court for a sale pf all the personal property of Simms’s estate to pay the debts of Simms’s estate, which he alleged was necessary to do to-pay them, this declaration was not true. He proceeded to the sale therefore without grounds, and I call this unfaithfulness in his administration. He advertised the sale of Simms’s undivided share in the partnership in globo without regard to the interests of the estate, the manifest-purpose of which was to drive off small bidders and enable the surviving partner to put it at a low figure, and this I call unfaithfulness. When this interest in the partnership was adjudicated to Irwin under the cash sale, the administrator declined receiving a dollar, and turned the whole sum over to Irwin to go to pay partnership debts. He acted, in my opinion, unfaithfully toward the separate succession of Simms, noting by the way that he caused the property to be sold under the pretense that there were debts of his separate estate to pay, and when the property was sold he collected no money to pay them.

In joining himself with Irwin as a quasi co-administrator, to provide means to settle the partnership affairs, he was acting unfaithfully to the separate estate of Simms, to which he should have had an' eye single. His counsel says Insley had a right to administer the estate. A mere abstract, negative right he had. He was without the shadow of any equitable right. There was no reason why he should be appointed. He knew that the legal tutrix of the minor, sole heir of Simms, was entitled by law to the administration of the estate. He knew she was about to apply for it. He used vigilance, however, to push for and get the office before the old woman; ignorant and unaware of the maxim that the law favors the vigilant, could procure it. Such vigilance I am inclined to favor but little. Neither morals nor propriety of conduct sanction a man’s thrusting .himself into the business of an estate without the remotest personal right in himself, and uncalled for by any party having rights. This administrator has done this thing. If he had the legal right to do it, he has that right with bad grace, and has exercised it unfaithfully toward the estate he swore to be faithful to. When, therefore he asks this court to be continued' in office, because a removal would not redound to his credit, he should not be listened to. . The court should look to the interests of the minor child whose all is in possession of this unfaithful administrator, and not to what people might think of his removal. In worming himself into the office he took the risk of all the consequences, and he should abide by them.

There is pleaded in his behalf that he proceeded under legal advice. If he received bad advice, which has brought him into trouble, he must suffer for acting finder that advice, if, as it is fully proved he did, he acted illegally and unfaithfully. When it is pleaded in extenuation of his illegal acts that he acted through ignorance and not by design, I hold that a greater reason is shown for his removal. A man both unfaithful and too ignorant to perform the duties of the office should be superseded by One faithful and competent.

For these reasons, and several more that might be readily stated, I oppose granting a rehearing.


author: Howell, J.

text:
    No. 609.
    State of Louisiana vs. Harvey Courtney, Henderson Courtney, Frank Green, Ben Robinson, and Joseph Dotts.
    It is not necessary to be a registered voter to be a Qualified talesman.
    There is no part of the act No. 9i of 1873 which declares that only registered voters are competent jurors. The j udge a qiib erred therefore when rejecting the juror on that ground.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouach-ita. Bay, J. Criminal case.

      William B. Hardy, District Attorney pro tem., for plaintiff and appellee.

      John H. Dinkgrave and G. H. JEllis, for defendants and appellants.
   Howell, J.

The defendants, who were found guilty of robbery and sentenced to imprisonment at hard labor in the Penitentiary, have appealed. They urge as error the ruling of the judge a quo rejecting a tales juror because he was not a registered voter.

Act No. 94 of 1873 says: “ Section one — That the qualifications of a juror to serve in any of the district courts in this State shall be the following, and no other shall be required: To be a bona fide male resident of the parish in and for which the court is being held and the jury drawn, twenty-one years of age, not under interdiction by a decree of a competent court, or charged with any crime punishable at hard labor in the Penitentiary, or death, pending at the time the competency is to be determined; provided, however, that there shall be no distinction made on account of race, color, or previous condition; and, provided further, that nothing in this section shall be so construed as to deprive the judges of-this State of the discretion to decide upon the competency of jurors in particular cases when, from any physical infirmity or from relationship within the fourth degree, to be computed according to the civil law, or from ignorance of the English language and inability to understand the same when read or spoken, or other cause, the juror may be incompetent to sit upon the trial of any particular cause.”

It is plain that being a registered voter is not here made a qualification. But it is contended on the part of the State that because in other sections of the act it is provided that, in parishes except the parish of Orleans and parishes where the books of registration are accessible to the officer of court required to draw juries, the clerk of the court shall procure a book, and with the sheriff and recorder enter therein, in alphabetical order, the names of the qualified jurors, it must be inferred that the Legislature intended that only registered voters could be qualified talesmen. This inference, wo think, is not justified. There is no part of the act which declares that only registered voters are competent jurors, and, taking the first section 'as prescribing the qualifications of a juror, we can not say that a talesman must be a registered voter. The other sections referred to by counsel for the State prescribe the mode of making out the list from which jurors are to be selected and summoned. They do not fix the qualifications of jurors.

The judge a quo erred therefore in rejecting the juror mentioned in defendants’ bill of exceptions, and the case must be remanded for another trial.

It is therefore ordered that the judgment and verdict of the lower court be set aside, and this case remanded for a new trial according to law.


text:
    No. 475.
    M. D. C. Cane vs. Caldwell & Kahn.
    An extension oí the return-day does not carry with it the “ days of grace ” added to the original return-day, and a second or subsequent application for an extension must be made on or before the day to which the extension is made. This has been repeatedly held.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      JEgan & Wise and Ashton & Blanchard, for defendants and appellants.

      Nutt & Leonard, for plaintiff and appellee.
   Howell, J.

A motion was made at the July term of 1873 to dismiss this appeal on two grounds, the first of which is because the transcript was not filed in time.

The appeal was made returnable on the third Monday of July, 1872, which was the fifteenth day of said month. On the seventeenth day of the same month, on motion of counsel for the appellants, the return-day was extended to Monday, the twenty-second of July, 1872. On the twenty-third of July, 1872, another motion was made and granted extending the return-day to the third Monday of July, 1873. This last motion was too late, and the order made on it without effect in law, as the delay on the first extension to the twenty-second of July, .1872, had expired, and it was not in the power of the court to make a return when the delay had expired. It has been repeatedly held that an extension of the return-day does not carry with it the days of grace ” added to the original return-day, and that a second or subsequent application for an extension must be made on or before the day to which the extension is made.

It is therefore ordered that the appeal herein be dismissed with costs.


text:
    No. 653.
    Wallace & Co. vs. Thomas R. Burnham. John Chafee & Sons et al. Intervenors.
    The exception to the action of the intervenors was correctly sustained. The property had, through their instrumentality, been released from seizure and removed from the jurisdiction of the court, and hence the privilege asserted by them, if it existed, could not be enforced.
    APPEAL from the Fourteenth Judicial District Court, parish of Qua-chita. Bay, J.

      B. W & B. Bichardson, for plaintiffs and appellees.

      Morrison & Farmer, for defendant and intervenors, appellants.
   Howell, J.

This is a suit by attachment, instituted the twenty-ninth of April, 1875, by plaintiffs, residents of New Orleans, against a non-resident, on a promissory note for $3424 66, dated May 8,1871, and due February 1,1873, with eight per cent interest from maturity, subject to a credit of $1360 27 on the fourteenth of June, 1873. Goods in transitu were attached, and were afterward bonded by defendant, with John Chaffe, Brother & Son and John Chaffe & Sons as sureties. Defendant filed an exception of prematurity, alleging that while in New Orleans, in April, 1875, not being able to pay his debts, and wishing to get more goods to enable him to continue his business until the growing crop could be taken to market, he entered into a verbal agreement with all of his creditors in said city, including plaintiffs, by which they were not to sue or press him until the time mentioned, and he was to obtain goods as desired, on the acceptance of his commission merchants and his own credit, which agreement was carried into effect, but plaintiffs have, in bad faith, violated it by suing him and attaching the goods so purchased from others.

This exception was overruled, and defendant answered by a general. denial and a plea in compensation for' amount of a note of plaintiffs held by him.

John Chaffe, Charles Chaffe, William H. Chaffe, and Christopher Chaffe, Jr., intervened in behalf of the firms of which they were the members, setting up the alleged agreement, upon which they had advanced to defendant and assisted him in buying more goods, being the same that are attached, and asking for a privilege as vendors thereon to the amount of thirty-six hundred dollars in preference to plaintiffs.

Plaintiffs excepted to the intervention on the ground that the property attached had been bonded prior thereto and delivered to defendant, and is now beyond the jurisdiction of the court; and, secondly, that interven-ors, having become the sureties on the release bond, are estopped from asserting any claim to or privilege on the property so delivered- to defendant.

This exception was maintained and judgment was given in favor of plaintiffs, subject to the credit claimed. Defendant and intervenors have appealed.

The first question is the plea of prematurity, on the trial of which defendant excepted to the ruling of the judge admitting the testimony of G-. W. Carey and others, taken under commission before the plea or exception was filed, as not having been taken with reference to the issue therein raised, and defendant had no opportunity to cross-examine the witness on such issues. This ground is good. There should have been an opportunity to cross-examine the witness, as urged by defendant, and such evidence will not be considered. There is also a bill of exceptions to the action of the judge in striking out certain parts of the answers of s'ome of defendant’s witnesses as hearsay. Portions of said answers stricken out are manifestly hearsay, and were properly stricken out, but there are portions which are part of the res gesta, to which we will give legal effect in weighing the evidence.

The evidence legally admissible satisfies us that the judge, a quo did not err in overruling the exception of prematurity. The agreement between the plaintiffs and defendant was conditional that the latter should make purchases to a fixed amount for one half cash and the balance on time. He began the selection of goods under this agreement, but discontinued in a manner and under circumstances which justified plaintiffs in considering the agreement at an end.

The exception of plaintiff to the intervention of the Chaffes was correctly sustained. The property had, through their instrumentality, been released from seizure and moved from the jurisdiction of the court, and hence the privilege asserted by them, if it existed, could not be enforced.

On the merits, the evidence sustains the judgment of the district judge.

Judgment affirmed.


author: Ludeling, O. J.

text:
    No. 683.
    W. E. Wamsley vs. G. W. Robinson.
    The plea of res judicata can not be based on the judgment of a justice of the peace in bar of a suit in -which the title to real estate is in question. Such a judgment would be void ratione materice.

    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Chapin, J.

      L. JB. Watkins, for plaintiff and appellant.

      Bun-can & Moncure, for defendant and appellee.
   Ludeling, O. J.

This is a pactitious suit, coupled with an injunction to prevent the defendant from molesting the possession of plaintiff.

The defendant pleaded res judicata, and, subsequently, without waiving the plea, filed an answer setting up title in himself, and praying to have the injunction dissolved with damages.

The judge a quo sustained the plea and dissolved the injunction with damages.

The judgment pleaded in bar of this suit was a judgment rendered by a justice of the peace, which appears to have been declared null for want of jurisdiction ratione materice; but whether it was or not, it is clear the judgment could not be a bar to this suit, as the justice’s court could not have validly rendered a judgment in regard to the title to real estate. If he did render such judgment, it was absolutely null. C. P. 1063, 1068. If he did not render a judgment for the title to the land, it can not be res judicata in this case, which involves title to the land.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment overruling the plea of res juclicctia and remanding the case to be tried on the merits according to law ; and that the appellee pay costs of appeal.


author: Ludeling, C. J.

text:
    No. 689.
    Eliza Tison vs. R. L. Taniehill, Sheriff, et al.
    The main question in this ease is, whether-fhe creditor can be allowed to sever from the lands the mills thereon existine.'in order to seize and sell them. The answer must be in the negativo. The mjiía and machinery are attached to the realty. It is proved that the boiler is incased in rock and mortar, having its foundation in the soil. J

    APPEAL from the Twelfth Judicial District Court, parish of Winn. Taliaferro, J.

      S. M. ¡Brian & George Wear, for plaintiff and appellant.

      Jack & Pierson, iov defendant and appellee.
   Ludeling, C. J.

The Aaintiff mortgaged a tract of land with all the improvements thereon to J. H. Hadnot, in May, 1872. On this land was situated a steam saw and grist mill. In 1874 the legal representative of J. H. Hadnot, deceased, obtained judgment on the notes executed by plaintiff, with recognition of the mortgage. Execution was issued under this judgment and the saw and grist mill was attempted to be seized, separately from the land, and was advertised for sale.

This execution was enjoined on the grounds—

First — That the mill formed a part of the realty, and coulcl not be seized separately from, the land; and

Second — That the land and improvements thereon were exempt from seizure and sale under the homestead exemption law, as it was her home, and was not worth more than two thousand dollars.

The evidence shows that the tract of land contains about one hundred and sixty acres, and that the plaintiff is a widow, with children dependent upon her for support, and that she has no other property except this land, with the improvements thereon, etc., which is worth less than two thousand dollars, and that she cultivates a few acres of the land as a farm and resides thereon.

This land, with the improvements thereon, is clearly exempt from ■seizure, under the exemption law.

Can the creditor be allowed to sever from the land the mills, in order to seize and sell them? We think not. The mills and machinery are attached to the realty. One of the witnesses states that the boiler is incased in rock and mortar, having its foundation in the soil.”

It is therefore ordered, adjudged, and decreed that the judgment of tthe lower court be reversed, and that there be judgment in favor of the plaintiff, perpetuating the injunction, with costs of both courts.


text:
    No. 608.
    State of Louisiana vs. Harvey Courtney.
    is manifest that the defeiutant^caiW^ot avail himself of the pretended illegality of a proceeding in another and different case. He should himself have made the objection (if it existed) at the propertinie, and not acquiesced in the drawing of the jury, and after judgment urged the'febjection, as he did. He dan not take the chances of a trial and then object. \
    from the Fourteenth Judicial District Court, parish of Oua-chita* Bay, J. Criminal ease.

      William j£. Hardy, District Attorney pro tem., for plaintiff and appellee.

      John H. \Dlnkgrave, for defendant and appellant.
   Howell, J.

The defendant having been fouijfrlguilty of attempting to bribe a witness and sentenced to hard labor in the State Penitentiary for the term of two years, appealed. He urges before us his motion in arrest of judgment, based on one made in another case, “ challenging the array for the reason that the parish judge was absent from the parish at the time said array was drawn, and the said parish judge did not assist in drawing the aforesaid jury,” which motion was sustained in the said case, and the case continued on the application of the district attorney pro tem., to save the expense of drawing another jury, which, it is contended, admitted the incapacity and illegality of the jurors, and the consent of the State and counsel can not make valid the jury that was illegally drawn.

It is manifest that the defendant can not avail himself of a proceeding in another and different case. He should himself have made the objection (if it existed) at the proper time, and not acquiesced in the drawing, and after judgment urged an objection, as he did. He can not take the chances of a trial and then object.

Judgment affirmed.


author: Moegan, J.

text:
    No. 640.
    Beniah P. Patton vs. William L. Richmond, Sheriff, et al.
    In November, 1874, plaintiff applied to be and was allowed to settle on tlie land seized in this instance as an actual settler, under tho homestead law of Congress of the twentieth of May, 1862.
    By the terms of this statute, land entered under its authority is not liable to seizure for the payment ot any debt contracted prior to the issuing of the patent.
    'The debt now sought to be enforced existed before the land was entered. It can not, therefore, under the express terms of the statute, be seized.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. JRay, J.

      S. G. Parsons, for plaintiff and appellant.

      Todd & Brigham, for defendant and appellee.
   Moegan, J.

In 1866, Heard obtained judgments against Patton. These judgments were recorded. In 1874, Heard obtained judgment against Patton, recognizing and rendering executory the judicial mortgages resulting from the recording of these judgments. To satisfy these judgments Heard issued execution, and has seized certain lands alleged to belong to Patton. Patton enjoins the sale on the ground that the property ■seized is not liable to be sold.

The land now sought to be sold belonged to the public domain. It was entered by Patton many years ago, but this entry was canceled. The title to the land then reverted to the government. In November, 1874, Patton applied to be, and was, allowed to enter the land as an actual settler, under the homestead act of Congress of the twentieth of May, 1862. By the terms of this statute land entered under its authority is not liable to seizure for the payment of any debt contracted prior to the issuing of the patent.

The debt now sought to be enforced existed before the land was entered. It can not, therefore, under the express terms of the statute, be seized.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the plaintiff, and that the injunction herein issued be restored and made peremptory, defendant, to pay costs in both courts.


text:
    No. 633.
    J. Buntin et al. vs. E. M. Johnson.
    The will in controversy was in the possession of the testatrix. She rectuested one of the witnesses to read it, which he did in her presence and in the presence of the subscribing witnesses. She declared after the reading that it was her will, and she signed it. The will is valid.
    It can not be seen how the testatrix could better have "presented” the will to the witnesses. Indeed^ she could only have done it in one other way. to wit: by taking it up in her hand, giving it to one of the witnesses, declaring at the time in terms: “ This is my last will.”
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      Todd & Brigham, for plaintiffs and appellants.

      Newton & Hall, for defendant and appellee.
   MORGAN, J.

Plaintiffs, alleging themselves to be the heirs at law of Mrs. Rebecca Moore, deceased, institute this proceeding for the purpose of annulling the will made by,her, by which she bequeathed her property to the defendant, her husband. The grounds of nullity relied on are, that the will was written out of the presence of the testatrix; that it was not presented by her to the witnesses with the declarations required by the second clause of article 1681, C. C.; that it was not read by the testatrix to the witnesses, nor by one of the. witnesses to the others in her presence.

“ A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or by seven witnesses residing out of the place. Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper in which he has written his testament, or caused it to' be written out of their presence, declaring to them that that paper contains his last will. In either case “the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator. It must be signed by the testator, if he knows how or is able to sign, and by the witnesses, or at least by two of them, in ease the others know not how to sign, and those of the witnesses who do not know how to sign must affix their marks.” C. C. 1582.

It is not necessary that we should determine whether the testimony of Hall, which was introduced for the purpose of establishing the fact that the will in question was written by Daniel Newton at the dictation of the testatrix, is sufficient The case, in our .opinion, is to be governed by the second clause in the article of the Code above quoted (1582), commencing or it will suffice if, in the presence of the same number of witnesses,” etc. And the question is, was the will which is now attacked presented to the required number of witnesses; was it declared to them that the paper contained the testatrix’s last will; was it read in the presence of the testatrix; was it signed by her and by the witnesses ?

The evidence, we think, discloses the fact that, when the subscribing witnesses were all present, one of them read the will aloud to the testatrix, who declared that it was her will, whereupon she signed it, making her mark, she not knowing how to write her'name. The witnesses then signed in her presence; the number of witnesses was sufficient. It is conceded that the will was written out of the presence of the witnesses, and it is therefore contended that it should have been presented to them by the testatrix, who should hare declared, at the time of presentation, that it was her last will, and that this not appearing to have been done, the will is null.

The case principally relied upon by them in support of their position, and which is certainly the strongest in their favor, is McCaleb vs. Douglass, 16 An. 327. In that case the will was read by one of the witnesses in the presence of the others to the testator, who declared that it was his will. Indeed, he seems to have assented to it sentence by sentence. It was not, however, formally “ presented ” by the testator to the witnesses, and as it was written out of their presence the court decided that the want of presentation was fatal. But in that case it appeared that the testator did not dictate the will to the witness, or party, who drew it up. The facts in that case were, as we gather from the testimony, which is copied at large in the opinion, that Douglass was lying in a dying condition in a room near to which the will was written. No one was present in the room where the will was being written except Dorsey and Bland. ■When Dorsey was about to commence the will he requested Bland to step into Douglass’s room and ask him something about the legacies, and if he did not want to give something to his other relatives. Bland did so, and named most of Douglass’s other relatives to him, to which Douglass answered “well,” and when asked by Bland how much they were to be given he replied you say.” With this answer Bland returned to the room where Dorsey was writing, and had the will written according to his idea as to what Douglass ought to do. The testimony shows that it was Bland who dictated what disposition was to be made of the property. It was Bland devising Douglass’s estate. When the will was taken to Douglass, and the reading thereof was finished, he assented to what had been done, took a pen which was placed in his hand, scratched his name upon the paper, and went into a deranged state of mind which continued till his death.

This will was, therefore, never dictated by the testator, and could in no sense be considered as having been presented by him to the witnesses. But in the case before us the facts are very different. The will was in her possession. She requested one of the witnesses to read it, which he did in her presence and in the presence of the subscribing witnesses. She declared, after the reading, that it was her will, and she signed it. We do not see how she could better have “ presented ” the will to the witnesses. Indeed, she could only have done it in one other way, viz.: by taking it up in her hand, giving it to one of the witnesses, declaring at the time in terms “ This is my last will.”

In the cash of Bouthemy vs. Dreux et al., 12 M. 639, Judge Porter said: “ In the case before us it has been found that the will was written by the direction of the testator, that it was read over to him, and that it was signed by him; but it is objected he did not present the testament to the witnesses and declare it to be his. We do not understand the law to be that these words are so material and of such solemnity that they can not be supplied by others expressing tire same ideas. Directing an instrument to be read over to witnesses, accompanied with the testator’s assertion that it was his last will and testament (as is in evidence, was done here), we think the same thing as if he had declared it to be his* We are also of opinion the will was presented. This word, in the sense in which it is used in the law, means to exhibit to view or notice, and is fully satisfied by the testator’s requesting his will to be read over to the witnesses and tolling them it was his. We are unable to find any force in the argument that the instrument should be delivered by the testator, with his own hand, to the witnesses, a ceremony which would often deprive the citizen of the power of making a will at all, as the instances are frequent where bodily weakness would render it impossible to do so, though the mind was sound and healthy. The object of the Legislature was that the act should be transmitted from the testator to the witnesses, in their presence, in such a way as to make it evident that it emanated from him. The court of cassation in Prance has held, in construing a law on the same subject, expressed in the same words as ours, that the presentation need not -be manual; that the object of the law was to-guard against a false testament being substituted in place of the real one, and that object was accomplished when the testator either presented it with his hands or indicated it by gestures or signs.” Seay 14, 458, 18 ib. 210.

It is true that the case just quoted was relied upon in the case of Mc-Caleb vs. Douglass, and that the court there said, “ without inquiring how far that case may now be ednsidered as authority,” thus implying a doubt as to the correctness of the decision; but we have seen no case where the authority has been overruled or disregarded, and we think it was correctly decided, and that the reasons given in support of the decision are impregnable. It is also to be observed that in the case of McCaleb the court said the circumstances of the case of Bouthemy differed materially from the facts in McOaleb’s case. In the case before us the facts are, as nearly as possible, identical with those in the case of Bouthemy.

This was the view taken of the case by the district judge, and we think his judgment should be affirmed.

Judgment affirmed.


text:
    No. 620.
    D. H. Sheppard vs. L. G. Barron, Administrator.
    This suit was instituted in the probate court o£ Bienville parish to have the admin-isfcrator of a succession removed from his trust, if he failed to give new security. An exception to the jurisdiction of the court ratione personae andraiione materia was sustained. It was an error. It is manifest that the probate court which appointed the administrator could alone remove him, and that the present suit is purely probate in its character.
    APPEAL from the Parish Court, parish of Bienville. T. J. Butler, Judge ad hoc.

      L. B. Watkins, for plaintiff and appellant.

      J. B. Pier-son, for defendant and appellee.
   Ludeling, C. J.

The plaintiff, who is the surety oh the bond of L. GL Barron, administrator of the succession of C. B. Thompson, sued Barron, administrator, to compel him to give new security, to have himself released from further liability on his said bond, and to have said Barron removed from his trust, if he failed to give new security. This suit was instituted in the probate court of Bienville parish, where the succession was opened. An exception to the jurisdiction of the court ratione per-sones and ratione materice was filed and sustained, and the suit was dismissed.

Section 3717 of the Revised Statutes declares that “on due proof being made of the maladministration of such administrator, executor, curator, or tutor, thus cited, the court shall require him to give a new bond with other sufficient security for the faithful administration of said estate, and upon failure so to do, within three days after such order, he shall be forthwith removed from the administration thereof, and the judge shall proceed at once to appoint another administrator.” It is manifest that the probate court which appointed the administrator could alone remove him, and that the present suit is purely probate in its character. O. P. 924. 22 An. 131,139.

It is therefore ordered that the judgment of'the lower court be reversed; that the exception be overruled, and that the case be remanded to be proceeded with according to law. It is further ordered that the appellee pay costs of appeal.


text:
    No. 632.
    Succession of Jephthah H. Head. Application to compel the Administrator to Render Account, and to remove Him.
    The causes alleged are not grounds for the removal of an administrator. If the administrator is derelict in his duty in filing an account, he may be ordered to do so, and if he disobey the order of the court, the creditor may demand his removal.
    If the administrator’s bondsman becomes insolvent, the creditor may require other surety to be given, and if the administrator fail to comply with the order of tho court, that will constitute a cause for removal. But nothing of the kind appears in this ease.
    APPEAL from the Parish Court, parish of Franklin. Brice, J.

      A. IV, Moore and Morrison & Farmer, for plaintiff and appellee.

      Mobert J. Caldwell, for defendant and appellant.
   Ludeling, C. J.

The plaintiff alleges that he is a creditor of the estate; that J. H. Crawford has been appointed and qualified as administrator of said succession; that more than twelve months have elapsed since his appointment and no account’hasbeen filed, and that the surety on his bond is not good for the amount of the bond; and he prays to have the administrator ordered to render an account, and to have him removed from his office and to be himself appointed administrator.

There was judgment against the defendant by default, dismissing him from his trust, and for ten per cent per annum interest on the amount of plaintiff’s debt. The defendant has appealed, and has assigned as error, among others, that no cause for his removal has been alleged.

There is no note of evidence or evidence, except as to the plaintiff’s debt, in the record. The causes alleged are not grounds for the removal of an administrator. If the administrator is derelict in his duty in filing an account, he may be ordered to do so; and if he disobey the order of the court, then the creditor may demand his removal. And if his bondsman become insolvent, the creditor may require other security to be given, and if the administrator fail to comply with the order of the court, that will constitute a cause for removal. It is not alleged or proved that the administrator has disobeyed the order of the court in either particular. C. C. 3013; 9 An. 478; 5 An. 563; B. S., sec. 3717.

It is therefore ordered that the judgment of the lower court be reversed and annulled, and that there be judgment rejecting the plaintiff’s demand to dismiss the administrator. It is further ordered that the administrator do render an account of his administration within thirty days after the date hereof.

It is further ordered that the costs of appeal be paid by the plaintiff and appellee.

Behearing refused.