author: DeBlanc, J.

text:
    No. 6317.
    Joseph Jouet vs. Mrs. E. F. Mortimer.
    The signing by the sheriff (or his deputy) of the notice of demand made on the defendant in executory proceedings, is an irregularity which can only be availed of by the defendant, by pleading it before the sale of the mortgaged property.
    The notice of the sale, in executory proceedings, need only be published three times. during the thirty days delay.

      The benefit of the appraisement of his property, may be legally waived by the mortgage debtor.
    The validity of a sheriff’s doed is not affected by the fast that the accrued taxes on the property conveyed by the deed, had not been paid.
    The nullity of a j udgment, or of a judicial sale, can only be demanded by one, who has used due diligence to prevent, what he seeks to annul.
    The adjudication of the property by the sheriff, an'd the payment of the price invest the purchaser with the legal title. The deed of the sheriff is merely evidence of the fact.
    APPEAL from tbe Fourth District Court, parish, of Orleans. Lynch, ■ J.

      Sairibola & Lucros, for plaintiff and appellant.

      J. L. Tissot, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

More than eight years ago, on the eighth of March, 1869, Joseph Jouet, the plaintiff, appeared before a notary public of this city •and acknowledged that he was indebted unto Louis Florval Givins in the sum of five thousand dollars, for which he delivered three notes drawn by him to his own order and by him indorsed, two, each for two thousand dollars, the other for one thousand dollars, payable on the eighth of March, 1870.

To secure the payment of these notes, the interest thereon stipulated, and, in case of a suit thereon, the attorney’s fees, Jouet gave a mortgage, on a lot of ground and the improvements attached to the same. In that act he waived his right to have said property appraised, if seized to satisfy the aforesaid notes and mortgage.

Two of the notes then drawn, indorsed, and delivered by plaintiff passed into the hands of Mrs, Mortimer. She was certainly not a hard creditor, for she proceeded- against -plaintiff -only when there was no hope that he would comply with his obligations.

On the twenty-second day of May, 1874, more than four years after the maturity of the notes — tired, as she was¡ of promises often made and as often violated — she applied for the seizure and sale of the mortgaged property. The order was granted, the property seized, advertised for sale, and, on the sixth of July, 1874, adjudicated to her for three thousand four hundred dollars.

After that sale, plaintiff asked Mr. Tissot’ to rent said property for him from Mrs. Mortimer, or Charles Lafitte, her agent; that he would pay twenty-five dollars a month for the portion occupied by him. Mr. Tissot complied with his request, but those parties declined renting to him. He then threatened to go into bankruptcy, and executed Ms threat.

Oh the eleventh of September, 1874, more-than two months after the property had been adjudicated to Mrs. Mortimer, plaintiff sued out an injunction, in which lie prays —

First — That the sheriff of the parish of Orleans and Mrs. Mortimer be prohibited from molesting or interfering with the possession of the property adjudicated by the former to tne latter on the sixth of July, 1874

Second — That said sheriff be prohibited from making,o.ut or completing defendant’s title to said property.

Third — That tile adjudication of the sixth of July, 1874, from the sheriff to Mrs. Mortimer be avoided and annulled, and she condemned to pay to plaintiff, as damages, the sum of one thousand dollars.

That injunction is based on the grounds —

First — That Mrs. Mortimer had agreed, to spspend her execution against him, and to allow him one additional year, or so much tinie as might suit him, to pay tho notes sued upon, on condition that he should satisfy the taxes due on the property and the necessary interest for that purpose.

Second — That defendant violated her promise, deceived him, had the property sold in-disregard of their agreement, and should not be permitted to so take advantage of her own wrong and profit by the frightful sacrifice of his residence.

Third — That the notice of demand served upon him is informal, not, having been signed by the clerk of the district court.

Fourth — That instead of,being advertised once ,a week, as required by law, tho sale of said property was advertised only three times in the official paper.

Fifth — That said property was offered for sale and sold without being appraised.

Sixth — That tho State, parish, and municipal taxes duo on tho lot of ground and improvements so adjudicated have not been paid.

First — Defendant has signally failed to prove any agreement on the part of Mrs. Mortimer to suspend her execution, or extend, as by him alleged, the long-sineo expired term of his obligations. Placed on the stand as a witness in his own behalf, he said: “ I was not present at the sale of my property, and was very much astonished to learn that it had been sold. After I received notice of her judgment, I saw Mrs. Mortimer; she told me that if I could pay the interest and a part of the taxes she would do all in her power to extend the time. I then offered the rent which would be due at the end of the month by two of my tenants; that was forty dollars. Mrs. Mortimer gave me no answer, but she was pleased with the arrangement, and invited me to go and see Mr. Tissot, her attorney. I did. He told me to settle my taxes, and he would give me as much time as I required to pay the interest. I was satisfied that the matter was entirely settled. I looked in tho paper to find out whether my property was advertised for sale. It was not. There remained due of the interest, which was payable in advance, two hundred dollars; for that I offered Mrs. Mortimer the monthly rent of forty dollars. I did not waive, as I know, my right to have the property appraised. The property, when sold, was worth eight thousand dollars, and mortgaged for six thousand dollars.”

Cross-examined, he said: “ The conversation between me and Mrs. Mortimer took place a few days after or tho day after I saw in tho paper the advertisement that my property was to be sold, and again a few-days later. This was between tho first and tenth of May. I was in the way to collect money to pay the taxes, and I could, but did not, pay-’ them.”

Mrs. Mortimer testified in substance as follows: “ Plaintiff came to my house to ask me to stop the sale and grant him time to pay my notes. I told him I had' waited long enough and could not wait-any longer. I think it was in Juno that Mr. Jouet called; his property was.then under seizure. I told him I would- listen to him after ho had paid all tho back taxes, back interest, and one of tho notes. Mr. Buisson was then present.”

Mr. E. Buisson fully corroborates Mrs. Mortimer’s declaration. In addition to it, ho said: “When Jouet offered a certain amount on tho interest due, that lady exclaimed: ‘Why, the first time you offered me more than that.’ Ho replied, ‘I did; I had it then; I have it not today.’”

Plaintiffs own declaration does not establish that Mrs. Mortimer agreed to suspend her execution and postpone the payment of the note she held, but it does establish that if, as pretended, she made a proposition to plaintiff, or he to her, he has not complied with any of the conditions fixed or accepted by them. He has paid neither the interest nor tho taxes.

Second — The charge that Mrs. Mortimer has broken her agreement,deceived plaintiff, and that she should not be permitted to take advantage of her own wrong, and profit by the frightful sacrifice of his property, is as unfounded as tho first. She was guilty of no wrong, resorted to no deceit, pursued the course indicated by law, purchased at public auction property on which she had a mortgage, and for that property paid a price equal to its value. That is sworn to by Messrs. Charles Lafitte and E. W. Murphy, two disinterested witnesses.

Third — The third ground urged by plaintiff to annul tho sale to Mrs. Mortimer is that it was a deputy sheriff who signed the notice of demand served upon him. This, as we have already decided, constitutes an irregularity. That notice should have been given by the clerk of the court or one of his deputies. But is it one of those irregularities which can be complained of more than two months after the sale ? Could plaintiff fold his arms, wait until the purchaser had paid taxes amounting to 14 hundreds of dollars, and then, without tendering back any fraction of these taxes, assail the purchaser’s title? In our opinion he could not.'

Fourth — As to the advertisement of tho sale, what fact is disclosed by tho evidence ? De Armas, deputy sheriff, said: “ The notice of the sale was published three times in the official paper, from the second of Juno to the sixth of July. This for thirty-five years lias been the custom in the office of the sheriff of tho parish of Orleans.”

What docs the law provide ? “ Tho sale of immovables shall be. made thirty days after tho first notice given of thé same.” O. P. 670. In this case the notice was published.during the prescribed delay. Plaintiff read the first advertisement. 'Ho know that an execution had been issued ; that under it his - property had been seized ; notice of said seizure was served on him; he know that said execution had not been returned ; and though he may have imagined that these proceedings had been suspended, ho had no reason, not even a pretense, to so imagine, and had every reason to believe exactly tho reverse.

The articles of the Civil Code relied upon by plaintiff’s counsel have reference to tho notice to be given of an application for the curatorship of a vacant estate, and of sales of property belonging to successions.

Fifth — On tho trial plaintiff was asked : “ Have you ever waived your right to have the property appraised?” He answered “No, not as I know.” This answer contradicts the declaration made by him in the act of mortgage, and which wo hero transcribe: “ Tho said mortgager expressly dispenses with all and every appraisement of tho property, waives and renounces the benefit of appraisement, and of all laws or parts of laws relative to the appraisement of movable or immovable effects seized and sold under executory or other legal process.”

In tho nineteenth Annual, page eighty-nine, tho court said : “ The only question presented in this appeal is whether the clause in the act of mortgage, dispensing with the appraisement of tho property, is valid in law. The same point was presented in the case of Broadwell vs. Rodriguez, and, after Mi discussion by counsel, and mature deliberation by tho court, it was held that such a claim is legal and valid, and wo find no reason to change our opinion.” 19 An. p. 89; 18 An. p. 68.

Sixth — The law provides that “the sheriff of the parish of Orleans •shall not pass or execute any act for the sale of any real estate unless the taxes duo on the same bo first paid. If he does, ho shall be fined.” This provision only enlarges the legislation which existed on tho same .subject, and which required every notary, before passing an act of sale, mortgage, or donation, to obtain from tho recorder of mortgages a certificate showing the rights existing against tho property, and to mention -those rights in his act.

The law, however, does not pronounce the nullity of any contract evideuced by an act passed in derogation of those enactments, and, more particularly, of an adjudication of property sold under execution, for the sheriff can not tell the purchaser, “ You are the last bidder ; come forward and pay the taxes, or else I shall withhold the adjudication.” He is bound to first adjudicate, and may suspend the completion, not of tho title, but of the evidence of the title. Is this any concern of plaintiff’s ? Not only he docs not pay his creditor, not only he compels that creditor to pay the taxes for which he is liable, but he assumes the right to oppose the execution of a deed from the sheriff to defendant until she satisfies a claim due by him to tho State. Had the sheriff been disposed to disregard the law, the collector and not the delinquent taxpayer could have properly interfered.

We adhere to tho doctrine that in forced alienations of property the law must be strictly complied with to give validity to those alienations ; but many of the irregularities which may be relied upon to retard a sale can not be successfully urged to annul it; otherwise, as said by Mr. Justice Martin, in the case of'Grant & Olden against Walden, “the floodgates of litigation would bo uplifted, cupidity would bcinvited to repeated attacks, and tho people woyfid feel alarmed and insecure at the precariousness of judicial sales.” The law has nearly lost its authority: the current of justice is nearly checked ; and, howsoever disposed we aro to respect and causo to be respected tho forms prescribed by law, we consider it as tho first duty of a court to discourage the reckless, the illegitimate litigation which — in our State — has rendered so difficult, so onerous, tho exercise of the most indisputable rights.

In the cases cited by appellant’s counsel wc have found in one that tho notice of demand was served on defendant’s counsel, after tho seizure, that the notes declared upon were prescribed; in tho others that tho judgment under which tho sale was made had not boon introduced in evidence, that there had boon no appraisement made of the property, that the sale had not been advertised during thirty days, or that a sale had taken place when no seizure had been executed. It is evident that under such loose and defective proceedings no title was or could have been divested.

In tho assailed proceedings there was hut one informality ; instead of being signed by the clerk, the notice of demand was signed and served by a deputy sheriff. Though informal, that previous demand was made. The debtor might have then and on that ground enjoined the execution. He did not do it, allowed the sale to be advertised, the property to be .sold, after it was sold offered to rent it from the purchaser, and, sixty-four days after, filed an action to annul it. His only object was to obtain delay ; he must be satisfied.

In opposition to plaintiff’s authorities, as a bar to his pretensions, there is a long list of decisions which, command that ño judicial sales shall be-disturbed, unless by one who has the right to rescind or annul them, by ohe who can show injury to himself or an advantage to be gained by the cancellation of the sale.

The original plaintiff is now an adjudged bankrupt, represented by an assignee. The latter appeared in the State court, averred that it had lost its jurisdiction, and prayed for a transfer of this case to the Federal court. His application was denied; ho excepted; but as he has not urged we presume ho has abandoned his exception. From the judgment dissolving the injunction he has appealed.

In this case the order of seizure and sale was not, could not, be reached by plaintiff’s injunction. Wore'we to annul the sale, that order would stand unaffected by our decree, and we would have but assisted plaintiff in harassing his creditor. Of ten debtors who take the benefit of the bankrupt act, five at least drag their creditors in the Federal court,, to gratify their spite, to harass the creditor.

In regard to those who seek the nullity of judgments, what is the rule?’ It must appear that they have conformed to those essential requirements which equity exacts from litigants who invoke its aid. They must have used all reasonable diligence, and not neglected to use such means as they possessed to prevent the evil of which they complain. Are judicial sales exempted from the operation of that rule ? They are not. 18 An. 497.

Immediately after the sale from the sheriff to Mrs. Mortimer, plaintiff applied to her to rent the portion of the premises which ho then occupied,, and which we presume he continues to occupy. Does not that application constitute a ratification? Is it less than a recognition of her title? It may be said that this is not sufficient to validate an invalid title; that as to immovables the evidence of the ratification should be reduced to. writing.

In the eighth volume of his Commentaries, under No. 491, Toulier mentions two sorts of ratifications, the second of which is : “ Celle par laquelle nous approuvons un contrat ou autre acto auquel nous avons concouru, ou auquel nous avons óté appcllés, mais qui était susceptible d’etre attaqué pour des vices reels ou apparents, do nature a en i'aire prononcer la nullitó ou rescisión.” This last sort of ratification is that-provided for in our Code, and in one, as well as the others, “ pent étrefaite expressóment ou tacitoment, verbaloment, par ócrit, ou par des actes. qui manifestent clairement notre volonté, parfois memo par le silence.”

Several instances of express and tacit ratification are found in our jurisprudence, in which this court, in accordance with the principles recognized by Toulier, has uniformly tlecided that an act may be approved by implied .or tacit ratification, though null and void ab initio. 10 M. 526; 7 L. R. 17; 4 R. R. 134.

Out of the price of the property adjudicated to her, or out of her funds, and because of that adjudication, Mrs. Mortimer has paid a considerable amount of taxes due by plaintiff. Besides, in spite of the sale from the sheriff to her, and since that sale, plaintiff has had possession of the property in dispute. Can we, in presence of these facts, annul the defendant’s title and legitimate plaintiff’s possession ?

' On several occasions this court said, in substance: “ Nothing could be more unjust than to permit a debtor to recover back his property, because the sale is irregular, and yet allow him to profit by that irregular sale, to discharge his debt. 11 M. R. 615; 3 N. S. 466; 4 L. 198; 19 L. 283; 2 R. R. 180; 5 R. R. 65; 6 R. R. 450; 21 An. 425.

In 5 An. 584 this court said: ' “We are of the opinion that the judgment, execution, and- sheriff’s return showing the adjudication are sufficient to prove the sale, without the deed. The adjudication and pay-ment of the price are now, by express provisions of the Code of Practice, sufficient to transfer the property. The sheriff’s deed is an additional muniment of title to the purchaser, but the defendant’s rights were -entirely divested by the judgment, the execution, and adjudication.

When we consider that, at the date of the sheriff’s sale^the acknowledged mortgage and the taxes affecting said property amounted, including interest, to about eight thousand dollars; when we consider that said property is worth but thirty-four hundred dollars, the price which Mrs. Mortimer paid for it; that since the sale plaintiff, though enjoying possession of the property, has allowed it to be offered for sale for taxes, and that defendant’s agent has again been compelled to pay that tax; that even if we were to annul the sheriff’s sale no possible advantage could thereby accrue- to plaintiff or his creditors; and that, under all circumstances, the property itself or its price would inevitably return to Mrs. Mortimer and the holder of the other note of the eighth of March, 1869, we can but conclude that it would be as gross as frivolous an injustice to prolong a litigation as fruitless to the debtor as expensive to the creditor.

There is no reason to disturb the judgment of the lower court.

It is therefore ordered, adjudged, and decreed that said judgment be and it is hereby affirmed at the costs of plaintiff.


source: Caselaw Access Project

author: Makr, J.

license: Public Domain

text:
    No. 6548.
    Mary D. Cooper et al. vs. Samuel C. Cappel et al.
    C'o-trcspassers are liable in solido.

    The husband may and should sue in his own name, to enforce any right of his wife, except when-the wife exclusively administers her own property, or when tho ownership of some dotal.or paraphernal effect, or real right of hers is involved. A joinder of the wife will be treated as mere surplusage.

      In a suit for damages on account ot a trespass the trouble and expense the plaintiff has been illegally put to are to be considered in estimating the damages. Attorney’s fees are a part of such expense, and may be proved, even when they have not been specifically alleged.
    The attempt of a lessee, or his vendee, to forcibly remove from the leased premises, property subject to the lessor’s privilege, is a trespass, sounding in damages.
    An irregularity in the method of returning a verdict by a jury, which does not injure any of the parlies, will not vitiate the verdict.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J. Trial by jury.

      H. J. Bowman, for plaintiffs.

      Hobart P. Hunter, for defendants.
   The opinion of the court was delivered by

Makr, J.

This is an action by husband and wife to recover damages for alleged wrongs to person and to property.

The petition charges substantially, that on the sixteenth of February,, 1876, the defendants came to the gin on the premises of petitioners and forcibly .and violently took and carried away seven bales of cotton, belonging to the wifo and in her possession at the timo. That this cotton was raised on the plantation of the wife by one of the defendants, Joseph D. Bass, who was indebted to lior in the sum of six hundred and twenty dollars for rent, and loft with her this cotton, on which she had the lessor’s lien and privilege.

That defendants came to the gin with two wagons, and one of tho number threatened to kill Silas H. Cooper, the husband, who resisted the taking of the cotton by them; that one of thorn shot at and assaulted him, and two others of them held him while the others took possession by force and violence, placed the cotton on the wagons, and carried away and converted it to their own uso.

That the cotton was worth fifty dollars a bale; and that petitioners, by the violent invasion of the premises, and tho disturbance of their peace and security, as well as by the assaulting of the husband and the lawless deprivation of their property, have been damaged in the sum of six thousand dollars, for which they pray judgment against defendants in solido.

Defendants excepted on tho grounds — that the petition discloses no cause of action; that it is too vague and indefinite; that there is a misjoinder of parties; and that defendants can be brought into court only by separate suits against each individually.

These exceptions aro simply frivolous. The petitioner charges with sufficient distinctness and clearness such wrongs, both to person and property, as form the basis of civil actions for reparation in damages,, and of public prosecutions for the insult and injury to tho peace and dignity of the State under all civilized governments.

The word “jointly” was used improperly in the English text of article-2301 ol the Civil Code by mistranslation of the corresponding word, “soUdairement,” in the French text. This article was amended by the act of 1811, page fourteen, so as to make the English text agree with the French text, and since the passage of that act there has been no room for question that co-trespassers are liable in solido. Article 2324 of the Revised Code, which takes the place of article 2301 of former editions, uses the words “ in solido” instead of “jointly,” in accordance with the act of 1844.

These exceptions were properly overruled, and defendants immediately filed o-hers, which should have been disposed of in the same way:

First — That there is a misjoinder of plaintiffs; that the wife sues for the value of seven bales of cotton, and vindictive damages, while the husband sues exclusively for vindictive damages for the attack upon his person and the injury to his feelings.

Second — That an action for vindictive damages must bo based upon or grow out of actual damages.

Third — That the district court was without jurisdiction, because the action is based upon the wrongful taking- of seven bales of cotton, alleged to be of value less than five hundred dollars.

First — It may be true that the plantation leased to Bass belonged to the wife as alleged, but it is not alleged that the wife was separate in property, nor that she administered her paraphernal property separately and alone. We can not assume that to be true which is not necessarily so, and which is neither alleged nor proven. Most wives re y upon their husbands to manage their affairs, and this is so consonant with the trust and confidence which should ever exist between husband and wife that we would presume it to be true in every case ia the absence of allegation and proof to the contrary. C. 0., article 2385 (2862).

The fruits of paraphernal property administered by the husband or by husband and wife indifferently belong to the conjugal partnership if there be a community of gains. C. C., article 2386 (2363). And rents are civil fruits. C. C., article 545 (537).

Community is a consequence of marriage where theio is no stipulation to the contrary. ' C. C., article 2399 (2 369). And this community consists of the profits of all the effects of which, the husband has the administration and enjoyment, either of right or in fact. C. C., article 2102 (2371).

Husbands may proceed in their own names to enforce the possessory and personal rights of their wives. It is only where the wife administers her paraphernal property separately and alone, or where the ownership of the dotal or paraphernal property or some real right belonging to her is involved that suit must be brought in her name, with assistance of her husband or the authorization of the judge. C. P., article 107.

Actions for personal wrongs to the wife or for injury to her paraphernal .property not administered separately and alone by her should be brought in the name of the husband alone, because the damages recovered would fall into the community, of which he is head and master and solo administrator. C. C. 2404 (2373). But as this eoxirt said, in Barton vs. Cavanaugh, which was a suit by husband and wife for the malicious 'arrest of the wife, “ the joinder of the wife does not destroy the action, and it may be regarded as surplusage.” 12 An. 333.

If it had been alleged in this case that plaintiffs wore not in community, or that the wife administered her paraphernal property separately and alone, and that trespassers entered upon her promises and assaulted and beat or otherwise maltreated the husband while he was endeavoring to protect her rights and her property, we see no good reason why they might not unite in a single action against the wrong-doers and recover tlie aggregate of the damages proven by them respectively. The-'lawless invasion of the rights and property of the wife would be aggravated by the violence clone to the husband while endeavoring to protect and defend them, as his duty required; and the assaulting and maltreatment of the husband would be aggravated by the injury done simultaneously to tlio rights and property of the wife.

We have no doubt the allegations of the petition would authorize an action by the husband in his name alone; but the joinder of the wife, where she is not a necessary party, may be treated as surplusage, and it can not in any respect prejudice the right of recovery.

' Second — If by actual damaged pecuniary loss is meant, and the intention is to assert that an action can not be maintained for violence done to a man while endéavoring to protect property lawfully and peaceably in his possession, because it does not belong to him, and he does not allege loss to himself of money or of property, the proposition is not true in law, and the tendency and consequences of such a doctrine would be most mischievous.

Third — It is certainly a new idea, and one which wo can not sanction, that, in an action for assaulting and shooting at a man, and for taking forcibly and violently and carrying away property which was lawfully in his possession, whether in his own right or in right of another, the measure of damages is the value of the property.

These exceptions were referred to the merits. They have no foundation in law, and they should have been overruled absolutely.

Three of the defendants, Matthews, Amos, and Pierre, pleaded a general denial, the two others, Cappel and Bass, answered separately. Cappel, after the general issue, avers that he bought the cotton from Bass in good faith for a valuable consideration. That Bass represented to him that he had paid the rent. That Bass had leased the premises and the gin-house from Mrs. Cooper, and was holding over, in his posses-«ion as lessee, until he could gin ancl remove the crop made by him; and that he entered the premises after the purchase of the cotton, bona ficle, and in company with Bass, for the sole .purpose of accepting the delivery of the cotton from Bass, at his request, and in pursuance of the sale. He denies that the cotton was over delivered to or in the actual possession of Mrs. Cooper or-of her husband and agent, Silas H. Cooper. 'He denies that she ever had jus in re, and alleges that her claim on the cotton ivas only jus ad rem, which was imperfect, and gave her a right of action only.

He denies that lie ever disturbed the peace or security of Mrs. Cooper; he denies that the loss of seven bales of cotton can bo made the basis of an action for damages for six thousand dollars, so as to give the court jurisdiction, and he expressly reserves his peremptory exception to the jurisdiction.

ÍBass pleads the general issue; and he specially avers that ho leased the premises for the year 1875 from plaintiffs, and was, at the time sot forth, holding over in his possession of the land and the gin-house; that he never delivered the seven bales of cotton to either of the plaintiffs in payment of rent or other claim; that he sold the seven bales to Cappel for a price agreed upon, and that he -went with Cappel arid wagoners for the purpose of delivering the same to Cappel upon the premises, of 'which he was still in possession; and that he did then and there deliver the same to Cappel.

The case was submitted to a jury on these pleadings; and a verdict rendered against defendants, in solido, for one thousand dollars in damages. From the judgment rendered on this verdict both parties appealed; and the plaintiffs have answered the appeal taken by defendants, and pray that the judgment be so amended as to allow them six thousand dollars.

Five bills of exception were taken by defendants, which we shall dispose of before entering upon the merits:

First — Defendants objected to the admission of testimony to prove injury to the feelings of plaintiffs, and attorney’s fees as part of the damages, on the ground that the only specific sum claimed as damages was the value of the seven bales of cotton; that defendants having excepted to the jurisdiction plaintiffs could not prove any amount of damages to give the court jurisdiction. They also objected that plaintiffs had not claimed attorney’s fees, and they could not bo permitted to prove more than they claimed.

The court admitted the testimony on the ground that the cause of action is an offense against the person and property of plaintiffs; and the fees of attorneys, the value of the property, and the injury to the feelings of the plaintiffs might all be the subject of inquiry in the assessment of damages.

la a caso like this thoro is no basis upon which the damages can bo fixed with absolute certainty; and the jury may well consider the trouble- and expense to which tho plaintiffs have been subjected by the wrongful act of defendants; and it is proper for them to take into the account, as part of tho expense, the reasonable fees of attorneys. See Dyke vs. Walker, 5 An. 521, 522. The suit is for damages, and not for attorney’s fees; and it was not necessary to claim the attorney’s fees specifically in order to let in the proof as an element of damages.

The objection on the ground of want of jurisdiction is altogether unfounded. Where tho jurisdiction depends on tho amount in controversy tho sum demanded determines the question; and tho amount sued for in this case is six thousand dollars.

Second — Under an agreement, counsel for plaintiffs introduced tho testimony of two witnesses, who were not present, taken in writing on the preliminary trial of the case of tho State vs. Cappel and others; to which defendants objected on the ground that it was res inter alian; and that the agreement only related to such witnesses as wore present and subject to cross-examination.

The court correctly ruled that the admission of tho testimony was in accordance with the agreement between tho parties, as. entered on the minutes.

Third — Counsel for defendants read to the jury and commented on the case of Black vs. Carrollton Railroad Company, 10 An. 33, and asked the court to charge the jury in the language used by Chief Justice Slidell in that case, p. 44. The bill of exceptions states that the court refused to give the charge. The judge says he did not so refuse. That ho told the jury all the law read by defendant’s counsel was good law, but that tho case was different from that at bar, and tho decision read was not applicable. He told the jury, however, that they were the judges of tho law and the facts.

It is most remarkable that the judge did not tell the jury that the language which the counsel for defendants desired him to tell them -was the law, and applicable to the case, was that used by one’member of the court in his dissenting opinion; that it was not tho language of the court; that the majority of tho court decided that it was rot law in that case, and that it had no application whatever to the case they were trying. '

Fourth — Tne court charged the jury that tho lessor may take the effects upon tho leased premises, and keep them until he is paid; that his lien is as valuable to him as if he were the owner of the property itself; and not even a sheriff or marshal can take away the property before paying the lessor his rent.

This charge is almost in the very words of the Civil Code, article 3185, and of this court in Robb vs. Wagner, 5 An. 112, and Arick vs. Walsh, 23 An. 605, 606. As there was no seizure by sheriff or marshal, the judge had no special occasion to refer to them, but what he says might well be stated to tho jury, arguendo, to show the wrong done by the defendants in depriving the plaintiffs of property by force which even the sheriff or the marshal could not take away under legal process without paying the rent.

Fifth — The case was submitted to the jury Saturday evening about five o’clock, and tho court adjourned until Monday morning. On Sunday morning at ten they notified the judge, through the sheriff, that they had agreed upon a verdict, and they came into tho court-room, accompanied by the sheriff, and handed their verdict to the judge, which was read aloud to them, and which they, each and every one, stated was their verdict. Tho judge told them they might he discharged from the confinement of tho jury-room, but that they must return Monday morning and render their verdict, which they did in open court, and which they again declared was their verdict.

All these proceedings were in the presence of the counsel for defendants, and the verdict which was handed to the judge and which was read on Sunday is the same which -was rendered on Monday in open court.

When the court adjourned Saturday evening the judge might have told the jury, in case they agreed, to return a sealed verdict. It seems ne did not do this. Where tho jury return a sealed verdict it is handed to the clerk, but it is not easy to perceive any good reason why, in a civil case, if tho judge should bo willing to repair to the court-room, the jury might not, in presence of tho parties or their counsel, hand to the judge their verdict in writing, on Sunday, and be discharged from the confinement of tho jury-room. The publicity given to the verdict, the signature by the foreman, tho reading it aloud, and having the declaration of each and every juror that that was tho verdict, afforded ample-security against any subsequent alteration, and this seems to us equally as safe as tho delivery of a scaled verdict to the clerk. If the proceeding in tho case was irregular, it certainly -was nothing worse, and it in no manner prejudices either party to tho cause, nor can it vitiate the verdict.

Joseph D. Bass leased tho plantation of Mrs. Cooper for one year, ending January, 1876,'for §700. He remained on the place for the purpose of gathering the crop, good part of which he shipped to market. On tho twenty-fifth of January he and Cooper made a settlement, and Bass made out, in his own writing, and signed a statement showing- balance due by him for the rent, §620 40, “ for which my entire crop is bound until satisfied.”

Bass left the place on that day, twenty-fifth of January, 1876, and Cooper permitted him to take away his personal effects, including two mules and a horse, leaving, to pay the rent, tho cotton that was in the field, which Cooper had picked by hands hired and paid by him.

On tho sixteenth February, when this cotton was passing through the gin and being put into bales, Bass returned and superintended the work. About five o’clock in the evening ho left and went to the store of Cappel, about one mile from the gin, and there, in the presence of persons who seemed to have been called to witness the transaction, he sold to Cappel the seven bales, the entire remainder of his crop, at eight cents a pound, city weights, which means simply that Cappel was to ship the cotton to New Orleans and to allow Bass for so many pounds as tho cotton might be found to weigh at New Orleans.

There was no money paid, and none was to be paid. Bass owed Cappel, and was to be credited with tho amount in account.

Immediately on the closing of this transaction, Cappel, his clerk, Matthews, Ralph Amos, and Zeddo Pierre got on the two wagons which belonged to Curry, tho uncle of Cappel, and which had arrived from Evergreen at an early hour in the day, and sot out for tho gin on the Cooper placo, accompanied by Gilhnore Cuiry and Bass on horseback, to receive delivery of the cotton, and to remove it from tho premises. On the way, between Cappel’s store and the gin, they passed tho shop of Odom, about sunset. Matthews and Cappel callod to Odom to got his pistol and go with thorn, which Odom, did and his brother accompanied them.

After tho Odoms got on tho wagon, Cappel told one of them, who testified on the trial, that they were going to have some fun. They were going to Cooper’s to get some cotton. That Joe Bass was to do the fighting, as he had his pistol and his brass knuckles on; that Cooper had some eight or nine armed negroes at the gin and “says wo shan’t have that cotton.” He then drew his pistol, and said with an oath, “ If I get among them I’ll make them scatter,” and he handed his pistol to Odom to look at, which he did, pronounced it all right, and returned it to Cappel.

About this time, and as they were approaching the gin-house, Odom jumped off the wagon and Gillmoro fell behind. Cappel and Bass headed the party and led the wagons into the gin-lot or inclosure in which the gin-liouse stood, and turned them round near the gin-house.

Cooper inquired of Cappel what his business was. Cappel said he had come for two bales of cotton belonging to one Griffin, also a tenant of Mrs. Cooper, and he offered to pay the rent due by Griffin. Cooper asked Cappel why he had brought two five-mule teams to take away two bales of cotton, and Cappel then informed him that he intended to have all the cotton there. Cooper said he could not do that, that the cotton belonged to his wife; if he took it he must take it by force, and that he would be robbing an innocent woman. Cappel, addressing Bass, said: “ Joe, Mr, Cooper, says this is his cotton.” Bass answered, “It is no such thing, for I made the cotton, and I turn it over to you.” Cappel then said, “ If that’s the way it is, put it in the wagon, boys.”

About this time Cooper and Cappel wore, near together, and there is some proof that Cooper took Cappel by the shoulders and.sh.ook him. Cooper drew, or had in his hand, a small derringer. Cappel drew his revolver, aimed it directly at Cooper, and threatened to kill Cooper if he did not put up his derringer. Curry, who up to this time had remained on his horse, jumped off and struck down Cappel’s arm, so that his pistol was lowered and the ball missed Cooper. Cappel struck at Cooper with his pistol, and either the blow knocked him down, or he stumbled and fell. Curry, the uncle, and Matthews, the clerk of Cappel, immediately laid hands on Cooper, and took him off and held and detained him in spite of his resistance and struggles, while the cotton was put upon the wagons, and until Cappel left, followed by the loaded wagons.

Curry and Matthews say they held Cooper to prevent his shooting Cappel or Cappel shooting him, but no one held Cappel. Cooper insisted on their releasing him, and Curry said he would if Cooper would give up his pistol. Cooper said he wanted to go where Cappel was. Curry said he might if he would surrender his pistol. About this time Odom came up and interposed, and told Curry he ought to let Cooper have his pistol, -to which Curry answered, “ If you have any business to attend to you had better ylo it.”

Cappel corroborates Odom fully with respect to the preparation he had made for a fight. He says:

“ AVhen we were on the wagons I heard that there were some seven or eight negroes at the gin-house, and I showed my p:stol to Mr. Odom, and said if I got after them with it I would make them scatter if they interfered with me.”

He says, on cross-examination: “The cause of the row was because Mr. Cooper would not let me take the cotton, and pulled a pistol on me. The cause of the row was because Mr. Cooper resisted me in my attempt to take the cotton, which he said belonged to his wife, and because he pulled a pistol on me.”

It is sufficiently proven that Cappel knew from Cooper’s statements to him, on the Saturday before the sixteenth of February, that Bass had not paid the rent, for Cooper told Cappel he would give one hundred dollars to any one who would take the cotton and pay the rent due by Bass.

The pretense that Bass was holding over and was in possession under the lease, .and that he could give authority to enter the inclosure and take away the cotton, is idle. Bass should have gathered the cotton and have ginned it, so as to have made it available. to Cooper for the rent, and his presence at the gin-house on the sixteenth, for the purpose of baling the cotton, was not unlawful, because it was with Cooper’s consent. But in no sense was ho a lessee holding over on the sixteenth of February, after halting left the premises, moved off, on the twenty-fifth of January. The entire party, all the defendants, were simply trespassers and violators of the rights of possession and of property when they left the road with their wagons and drove into the gin-house inclosure.

Cappel paid no money for this cotton. He and Bass and Matthews testify that Bass owed him more than the value of the cotton, as they say, for advances and supplies to make the crop, and Bass wanted Cappel. to have the cotton, because Cappel promised to advance to enable him to make another crop. Cappel had not recorded any privilege for the debt due by Bass ; and the property, the cotton, was on the leased promises, in possession of the lessor. There is no room to question the right of the lessor to keep and retain this property until the rent was paid; and this right was superior to any right which Cappel liad or could liavo acquired.

Cappel know that Cooper would not give up the cotton willingly. He know that before he loft the store. It was not necessary to go with eight others, armed, to receive delivery of seven bales of cotton from the owner. But Cappel told Odom that Cooper “ says we shan’t have this cotton and there was apparent necessity for him to go in force when ho knew that Cooper either had or professed to have superior rights and claims to it, and had also the courage and manhood to assert his rights, and to attempt to maintain them.

What Cooper did after Cappel had, with his co-trespassers, entered the promises and Cappel had ordered the boys to put the cotton on the wagons, notwithstanding the remonstrances of Cooper, and his repeated declarations that Cappel would have to take it by force, and that ho would be robbing an innocent woman, it is not material to inquire. Far bo it from us to encourage or sanction by any word of ours violence or a resort to force to vindicate rights which may be enforced through the machinery of the law, but we deem it not improper to say under all the circumstances of this case, if Cooper had killed Cappel he would have incurred no criminal responsibility; while if Curry had not at the critical moment struck down Cappel’s arm he would in all probability have been guilty of one of the highest crimes known to the law — murder—while engaged in a lawless violation of the right of property.

There was, beyond doubt or question, a lawless combination, a conspiracy, a pre-arrangement by the defendants, to go to the gin-house at a late hour — it was after sunset when they left the store, getting dusk when they reached the gin-liouse — to take and carry away the cotton by force, by the use of deadly weapons, firearms, provided in advance, if Cooper could not be overawed and the anticipated resistance repressed by numbers and by bluster.

Such lawlessness must be repressed, must be put .down by the strong harid of the law, and wrong-doers must bo taught that “ the way of the transgressor is hard.” It is only when the laws are enforced and obeyed, when rights are observed and respected, and when the citizen can feel that ho is secure in his person and property so long as he does no wrong to others, that there can be peace, good order, and prosperity in the land.

We have searched the record in vain for one single mitigating circumstance. An old grey-headed man, as Odom describes him in his testimony, a “ functionary of the Methodist Church,” as Cappel calls him in his answer, an itinerant preacher of the gospel, while peaceably engaged at work on the premises of his wife, is assaulted, shot at, held forcibly by two men while others of the same party take and carry away property which he claims in behalf of his wife, and which two of the chief trespassers knew was subject to her right of pledge as lessor. Comment would but weaken the force of the simple statement of the facts.

. We consider the case one which eminently requires exemplary damages, and it affords a fit occasion to give warning to the lawless and the violent that they are not to expect leniency at the hands of the judicial tribunals. If the jury had given the full amount of damages sued for, we should not have disturbed the verdict; but the amount -awarded is wholly inadequate. We gather from the record that the grand jury of Rapides parish have dealt with this matter, and that fact may have influenced the jury in their assessment. It shall have all the effect with us to which we think it entitled.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, and that plaintiffs recover of defendants, in aoUilo, the sum .of three thousand dollars with costs in both courts.


author: Manning, C. J. Manning, C. J.

text:
    No. 6538.
    State ex rel. Armand Mercier vs. the Judge of the Superior District Court et al.
    In iomputing the time within which a suspensivo appeal may he taken, neither nonjudieial days nor the day the judgment was signed, nor the day the appeal was taken, are to be counted.
    A law is not obligatory, until promulgated. Thus a court created by statute continues to exist, until the act repealing that statute has been promulgated.
    The mere publication of a legislative act in the official journal, is not necessarily a
      proimUgalion of the act.. Promulgation of an act must bo marte by tlic officers, and in the special mode, prescribed by law.

      S. P. Blanc and A. B. Phillips, for relator.

      George II. Braughn, for Fischel.
   The opinion of the court was delivered by

Manning, C. J.

The relator applied for writs of mandamus and prohibition, tho former to bo directed to tho judge of tho Superior District Court, commanding him to grant a suspensive appeal from a judgment rendered by him against relator in favor of Lewis Fischel, and the latter to be directed to the plaintiff, Fischel, prohibiting him from proceeding to enforce his judgment until that appeal can be heard. The writs were provisionally issued, and, oral argument having been allowed and heard, the application of tho relator now comes up for adjudication.

No answer is filed by the judge, and the other defendant makes several objections to the confirmation of our previous order, of which as many shall bo noticed as are necessary for the decision of the question before us.

One of them is that the petition or motion for an appeal comes too late. The judgment was rendered on the fourth of January of tho present year. The appeal was prayed on the seventeenth of the same month. There were two Sundays in that interval. In computing the time in which a suspensive appeal may be taken, neither the day on which the judgment was signed nor that on which tho appeal was taken are included. The appeal was therefore in time. Garland vs. Holmes, 12 Rob. 421; C. P., article 318.

Another, and tho chief cause, shown by the defendant why tho writs should not be made peremptory, is the alleged abolition of the Superior District Court.

Tho journals of the two houses of the General Assembly for tho session of 1807 have been offered in evidence. From them it appears that a bill was passed abolishing that court, but did not become a law. It is said in argument that it was never signed by the Governor, or by any one assuming to exercise the functions of Governor. Certainly it was never promulgated, and a law must be promulgated before it becomes obligatory. Civil Code, article 4; Cheyron vs. Attorney General, 12 La. 315. Tho Superior District Court must still have a recognized legal existence, unless the law creating it is shown to have been abrogated in some other way.

This is said to have been accomplished by an act, having tho semblance' of legislative forms, and purporting to have been passed by an assemblage of persons sitting in the St. Louis Hotel of this city. A printed slip, purporting to be a copy of this act, is in evidence, from which it appears to have been passed on the fourth day of January, 1877. This assemblage assumed, in passing that act, to be the General Assembly of Louisiana.

It is a part of the public history of the time that there are two persons, each claiming to be tho Governor of this State at this time, and there are two bodies, each claiming to be the legal Legislature of the State. A legal dual government of a State is impossible. There can not be two Governors of the same State at tho same time, each having tho legal right to exercise authority, nor two Legislatures, each with legal right to enact laws. This court recognizes Erands T. Nicholls as tlie sole and lawful Governor of this State, and tho two bodies whose, sessions are held now at Odd Fellows’ Hall in this city as the only legal Legislature of this State. The acceptance of a judicial office is a recognition of the authority of the government from which it is derived. Our own commissions are derived from tho government of which Governor Nicholls is tho executive. If we decide at all as a court, wo necessarily affirm the existence and authority of the government under which we are exercising judicial power. This is stated as a necessary consequence flowing directly from the origin of a court’s authority.in the opinion in Luther vs. Borden, 7 How. 40, wherein it was definitively settled that the power of deciding between the claims of two rival governments in a State vests in tho political department of the national government. It is, however, apparent that questions involving necessarily a decision of tho legality of a State government may and do come before a State court, and in which the j udgment of the court is as authoritative as if rendered upon the question directly. For instance, a State court does incidentally decide who is the lawful Governor of a State by commanding a subordinate officer of the State to release from prison a convict who had received a pardon from that Governor. In like manner we decide tho illegality of a Legislature when we declare the invalidity of an act enacted by persons styling themselves the General Assembly of this State, in and by which the Superior District Court for the parish of Orleans ■was abolished and a new tribunal was erected, styled the Superior Civil Court.

The act is void. Tho protended legislation is without authority. The persons composing tho two bodies which.thus assumed to legislate are not the General Assembly of this State, and are not therefore clothed with legal power to enact laws for the government of the people or for the guidance and obedience of the courts. The act creating tlie Superior District Court is hence in full force, not having been repealed.

We shall therefore perpetuate tlie prohibition forbidding tho defendants from proceeding to enforce tlie judgment of the Superior District Court against the relator until his appeal can be heard, and we make peremptory tho mandamus to the judge of tliat court commanding him to grant a suspensive apppeal to the relator, the process upon tho judge to be served so soon as one shall be inducted into that office by the proper authority.

Let judgment be entered accordingly.

Since this opinion was prepared, publication of an act, purporting to repeal the act creating the Superior District Court, was made in the official journal on last Thursday, of which we take judicial cognizance. Appended to it is a certificate of the Chief Clerk of the House of Representatives, without date, that it “is a true copy of House bill No. 287, which passed both Houses of the General Assembly, in the session of 1876,” which bill was signed by the presiding officers of the two houses and was sent to the Governor on the eleventh of March, 1876, and that “ this act was never promulgated nor returned to the house in which it originated,” with either approval or objections. It is apparent that this publication was supposed to operate a promulgation of that bill.

The promulgation of laws is an executive function. Elle consiste, en réalité, dans Topposition faite par le chef de Tetat, de la formule qui ordonne l’execution de la loi. 1 Marcade, No. 28. It is tho extrinsic act which gives a law executory force. The mode of promulgation may be prescribed by the Legislature, and with us, since the act of 1827, laws are considered promulgated the day after their publication in the State gazette, (Revised Statutes of 1870, section 21G8,) but that publication must be made by authority. The clerk of neither house of the General Assembly has authority to promulgate a law, nor is there any duty imposed on him nor function assigned him, which assists or accelerates the promulgation of a law.

An enrolled bill, with the signatures of the presiding officers of tho two houses, is always presented to the Governor for executive action. We have evidence before us in 'this cause, that the enrolled Dill which was numbered two hundred and eighty-seven in the House bills of 1876, was presented to the officer then exercising executive functions, and that it was returned by him to a body without authority to receive it. No other bill or copy is required to have the original signatures of tho presiding officers of the two houses except that enrolled bill. The attest, “ a true copy,” affixed by the Assistant Secretary of State to the clerk’s certificate, as it appears in the official journal, must, therefore, refer to that certificate alone.

When the Governor has signed a bill, and thereby made it a law, the original is deposited in the office of the Secretary of ’State, whose duty is to deliver a copy thereof to the State Printer, but if the Governor has not signed it within the time allowed, or vetoed it in the manner constitutionally prescribed to him, and it has become a law by reason of his failure to do either, then it is also his duty to deposit the original in the office of the Secretary of State, and it is that officer who, when he sends the copy to the Public Printer, accounts for the absence of the Governor’s signature by a statement of the manner in which it has become a law. If it should happen that a Governor arbitrarily withholds the original, neither signing nor returning it with objections to the proper house, we doubt not it would be competent for the Legislature to avoid the effects of such arbitrary executive non-action, by ordering another enrollment of the identical bill, and have attached thereto the signatures of the two presiding officers, or whore that is not practicable, to order by resolution a copy of the bill as it was signed to be deposited with the Secretary of State. But the consequences of holding that any unauthorized person may deposit what purports to be a copy of an act in the office of the Secretary of State, and that the printing of such act constitutes the promulgation of a law, are too manifest to require comment.

The publication of the act numbered as sixty-one in the official journal of the fifteenth instant, is not a promulgation of a law under the circumstances attending that publication. .

On Rehearing.

A rehearing of this cause is ordered by the court of its own motion.

The opinion of the court was delivered by

Manning, C. J.

In the opinion read on yesterday, wo held that laws could be promulgated only in the manner prescribed by the Legislature, and by the officers to whom such functions belonged, either from the nature of their offices or because it had been specially confided to them. The publication of the act No. 287 of tho session of 1876, in the official journal, was hence declared to be not a promulgation. That act repeals the act creating the Superior District Court.

It appears that the General Assembly at its present session have provided anew for tho promulgation of laws by tho enactment of law No. 20, the first section of which is as follows:

“ That whenever the enrolled copy of any bill shall have been delivered by the Clerk of the House or Secretary of tho Senate to tho Governor, and said enrolled copy shall not have been returned by him to tho House in which it originated, with his objections, within the time provided by law; or whenever the Governor, after delivery to him, has failed to approve the same within the legal delay, and has omitted or neglected to return said enrolled copy to the Secretary of State for promulgation, under tho constitution, without his signature, that the Clerk of the House or Secretary of the Senate, in which tho bill originated, be and is hereby directed to make a duplicate enrolled copy of said law, affixing thereto his certificate that it originated in tho House of which he is Clerk or Secretary, aiid aii additional certificate to tho fact of the delivery and date thereof by him of said bill to the Governor, and of the failure of the Governor to return tho samo, as required by law; and .upon'the delivery to the Secretary of State of said enro.led copy, with said certificate, by tho Secretary of the Senate or Clerk of the House, as the case may bo, ho is héfoby directed to promúlgate the same.”

The mode of promulgation prescribed by this act was followed in tlio promulgation of the law which repealed tho act creating the Superior District Court, and that court is therefore abolished. Without such special legislative provision, we held a promulgation in that form insufficient, and we were ignorant that such provision had been made.

The act thus legally promulgated provides that certain records of the Superior District Court shall bo transferred to the Third District Court of Orleans, and tho counsel for tho relator informed us in argument that an appeal had been lodged in that court in the case before us. Wo siiall therefore modify our decree, entered yesterday, and —

It is now ordered, adjudged, and decreed that so much of our judgment as confirms and perpetuates the prohibition to the defendant, Fischel, from proceeding further in the enforcement of his judgment against the relator until the latter’s appeal can be heard, remain undisturbed, and 'that the mandamus to the judge, of the Superior District Court, which was made peremptory, bo set aside and rescinded, and the defendant, Fischel, pay tlio costs hereof.


author: Manning, C. J.

text:
    No. 6558.
    Charles Maduel, Executor, et al. vs. P. H. Mousseaux et al. Union Insurance Company, Garnishees.
    It is only property in tlio possession o£ tho garnishee, or a debt absolutely clue by him, though not exigible, at tho moment tho interrogatories are served on him, that can be seized under a garnishment process. A prospective, contingent debt, can not bo reached by such process.
    REPEAL from the Fifth District Court, parish of Orleans. Ciillom,

      George X. 'Bright, for plaintiffs and appellants.

      M. M. Cohcn'&iid Kennedy Cldápella, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

'Tlio Union Insurance Company of New Orleans, was garnisheed'by plaintiffs and answered the interrogatories. The plaintiffs consiclerecl tlio answers evasive, and on the second of November, 187.5, took a rulo on the company to show cause why judgment should not be rendered against it upon the ground that it had failed, neglected, and refused to answer the interrogatories propounded to it. Four days afterward, Achille Chiapella, one of the judgment debtors of plaintiffs, took a rule on them to show cause why the seizure of his wages as president of the company should not bo annulled and set aside — the garnishee having answered that ho was its president with a stipulated monthly recompense.

The first rulo was tried, an appeal taken from the judgment of the lower court, and final judgment rendered in this court in May, 1876. That judgment was, that the interrogatories wore sufficiently answered. The second fulo was discontinued by Chiapella tho following month.

On tho thirtieth of May, 1876, plaintiffs’ counsel moved to set for trial Chiapella’s rule, and that inasmuch as by tho answers of the garnishee it was indebted and obligated to Achille Chiapella for salary from July 1,1875, to May 10,1876, at four hundred and sixty dollars per month, it was ordered that Chiapella and the insurance- company show cause why judgment should not be rendered against them for $4753 33, the salary due for the time above mentioned, with- interest.

The insurance company to this demand pleaded res judicata.

The company, answering tho second interrogatory of plaintiffs, had said: “The Union Insurance Company of New Orleans does not at present, nor did it at the time of seizure and service of interrogatories, owe any money to the said A. Chiapella. This respondent admits that the-said Chiapella is president of the Union Insurance Company of New Orleans and receives from the said company monthly wages amounting to $460 41 as recompense for 1ns personal services rendered to the said company in his aforesaid capacity of president. But this respondent avers that under tho law the said sums monthly due to the said Ohiapella as wages are not liable to seizure, and respondent avers that it has no funds or moneys in its possession belonging to or due to the said Chiapella.”

The law in force at the time this answer was made provided that the sheriff could not seize “ wages nor recompense for personal services.” Acts 1874, p. 53. By an amendment of April 4,1876, tho.words “ laborers’wages” wore substituted to that sentence. Acts 1876, p. 124. So the recompense for personal services was not exempted from seizure on the thirtieth of May, 1876, the date of fixing for trial the present issue.

The counsel of the garnishee has rested his defense upon the. plea or exception of the thing adjudged, maintaining that the issue decided by this court on the rule for judgment, because of insufficiency and evasiveness of tlio answers, was in fact and in law an adjudication that the garnish.ee had no money or effects belonging to the defendants, or either of them, and since the object of the present rule is to reach what is alleged to be due defendant by garnishee, the identity of object in the two proceedings is established. He also insists that the three other features requisite to support the plea of res judicata are present, viz.: identity of parties, of capacity, and of cause of action, and his elaborate 'brief has conveniently collated for us all the law upon that subject.

The counsel for the plaintiffs in turn forcibly argues that the claim for the salary was not before the court in the pleadings in the former rule, and that the sole question then considered was whether the garnishee’s answers were sufficient and unevasiv.e, or in other words whether the garnishee had or had not failed, neglected, and refused to answer. The exception of res adjudícala must be determined, he properly adds, upon the issue raised in the pleadings and not by the points made in argument.

The distinction is subtle. The phraseology of the opinion of this court delivered when deciding the former rule favors the view of plaintiffs. The substantial matter then decided favors that of garnishee. Wo are relieved from the necessity of applying the Taw relative to the plea of the thing adjudged to the facts of this litigation, because the pleadings and evidence develop an equally fatal and more patent objection to the plaintiffs’ recovery against the garnishee.

The seizure was made by service of the interrogatories on the insurance company on the sixteenth of July, 1875. The garnishee answered on the twenty-seventh of the same month that it did not then, nor at the time of seizure, owe any money to Chiapella, and then added that he received from the company monthly wages as president. He had been paid what, was due him as recompense for these services before the seizure. The plaintiffs never made any other seizure. None could have been made then. The existing law forbade the seizure of this recompense at the date of answering the interrogatories, and continued to forbid it until April 4,1876. After its repeal, the plaintiffs, on the thirtieth of May, without a now seizure or other proceedings, move to set for trial the rule taken by Chiapella the previous November, to show-cause why the seizure of his salary under the garnishment of July, 1875, should not be dismissed, and that is the motion we are now considering. Chiapella had voluntarily discontinued his rule on the third, of June, immediately after service of plaintiffs’ motion was made on him, and docs not answer this motion nor in any manner .object to the hearing, but the insurance company interpose the plea of res judicata.

A debt must exist, although the period of its payment may not have , arrived, in order to make it subject to seizure in the hands of a garnishee. There must be an existing absolute liability to pay at a future time — débitum in presentí, solvendum in futuro — and not a prospective, •contingent, and conditional liability.

The true test is, what could the debtor recover of the garnishee at the date of the service ? On the sixteenth of July the company owed Chiapella nothing. There was a continuing contract, liable to be determined at any moment by various causes, but neither that contract nor the recompense it provided were liable to seizure until nine months after the -only seizure was made, and this process must stand or fall according to the state of facts existing at the time of service. Todd vs. Shouse, 14 An. 426; Bean vs. Miss. Union Bank, 5 Rob. 333; Rightor vs. Phelps, 16 An. 105.

In Coleman vs. Fennimore, 16 An. 253, it is held that answers acknowledging no present indebtedness to defendant, nor any future indebtedness except contingent upon an uncertain event, will not bind garnishees. But the plaintiffs’ counsel maintain that the contract, admitted to exist by the garnishee’s answers, for the payment of a monthly recompense for persenal services, was seized by his process of the sixteenth of Jrdy, . and that the repeal of the law exempting it in the ensuing April put that salary in the condition it wroixld have been in if no such law had ever existed, and consequently the seizure was complete. It is not contested that the salary had been paid up to the time of service, but it is contended that the salary which should thereafter become due on a terminable contract, not then liable to seizure, was by the seizure of July .subjected to plaintiffs’ judgment. We think differently.

In Marchand vs. Bell, 21 An. 33, the city of New Orleans was garnisheed and answered that if it was ever indebted to Bell by reason of any contract between them, any amount that might have been duo him was forfeited on account of his failure to fulfill his part of it, and on the fifth of September, 1866, the city supplemented its answer by averring that a compromise had been made with Bell under which he was to receive five -thousand dollars. Prior to- plaintiff’s suit, Mackenzie had served garnishment process on the city on the eleventh of May, 1866. Held — -that Mackenzie’s right was ascertained the moment the city admitted its indebtedness to Bell, and his seizure had priority over Bell’s. Here was an indebtedness existing at the moment of Mackenzie’s seizure, the amount of which was not ascertained until afterward, but when ascertained reverted back to the moment of seizure and became liable to his judgment. In the case before us there was no existing debt, but merely one that might or would exist provided certain services were rendered, and there was no seizure of any portion of the indebtedness after the rendition of the services had changed the inchoate right of Chiapelia into a substantial cause of action.

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


author: Howell, J. Marb, J.

text:
    No. 6438.
    Succession of H. D. Cochrane.
    Tho clause. o£ a will by which the testator gives a sum oí money to a minor, ami directs that the sum shall bo invested so as to yield a revenue until tho legatee’.-* majority, docs not involve a substitution.

    The dovise of a certain sum to a minor, and “ in tho event of her death,” to another, is a valid disposition, and not a prohibited substitution.
    Where tho clause of a will'is susceptible of two constructions that one will boadopted which gives effect to, rather than'that which avoids the clause.
    A naked trust, to be executed immediately, as where furniture ,is devisod to a mother, for tho benefit of her minor child, is not afldei commissum.

    ^PPEAL from the Parish Court, parish of Jefferson. Hyman, J.

      George If. JBraughn and A. J. Villeré, for, opponent.
    TF. B. Lancaster, for the succession.
   On Motion to Dismiss.

The opinion of the court was delivered by

Howell, J.

A motion is made to dismiss this appeal “on the ground that Mrs. Margaret Kellogg, sister of the deceased and one of his residuary legatees, a necessary party to the appeal, lias not been cited to answer said appeal or even made a party appellee herein.”

The judgment appealed from was rendered on an opposition to an account filed by tho executors, sustaining the opposition of Mrs. Echinger, tutrix, to one item and rejecting it as to another. Tho latter item is in favor of said Mrs. Kellogg and her co-legatee, one of tho executors, and it is contended by the appellee that Mrs. Kellogg is a necessary party to tho appeal, while the appellants (the executors) contend that Mrs. Kellogg was not a party to the proceedings in tho opposition in the court below, and can not be made a party appellee. They say she was not a party because, being a legatee, she was not specially notified of the filing of the account and tableau of distribution and the ordinary publication to creditors does not make her a party.

However this may be, it seems clear to us that all the parties who were before the, lower court on the trial of the opposition are before us as, appellants or appellees, and we can dispose of the appeal as to them. How they may be severally affected by our action can only be determined when we come to pass on tho merits. We do not think -the ground urged is sufficient to dismiss the appeal.

Motion refused.

On the Merits.

The opinion of the court was delivered by

Marb, J.

We are called up m in this case to construe two clauses in the will of Hugh D. Coz Inane, which aro as follows:

“ I give to the little daughter of Catherine Echinger five thousand dollars, say §5000, tho said sum to be invested in such a way that she may receive the interest annually and the principal at her becoming of age. In the event of her death, the said donation to go to the daughter of my niece, maiden name Margaret Kellogg, now living in Evansville, Indiana.

“ I give to Catherine Echinger four thousand dollars, say §4000. I also give to her for the benefit of her little daughter all tho furniture in my bed-room and bath-room, and all curtains which belong to the set of furniture, two blankets, six linen and six cotton sheets, and everything appertaining to the set of furniture in the room; also one of my dinner services, tho decorated set without the monogram.”

The executors filed an account and tableau in which they proposed to distribute the effects of the succession as if both these clauses were null. Mrs. Catherine. Echinger, as natural tutrix of her minor daughter, Margaret Lenora Echinger, opposed this, and claimed the legacies in favor of her child.

The judgment of the court below recognized the first clause as valid, and ordered the executors to invest the five thousand dollars in the name and for account of the legatee, in such a manner that she shall, (luring her minority, receive yearly the revenues and tho principal at her majority.

The judge considered tho second clause a fldei commissnin, and he adjudged and decreed it to bo void and of no effect.

The executors appealed, and Mrs. Echinger, appellee, in her capacity as natural tutrix, answered the appeal, praying for tho confirmation of that part of the' judgment which recognized the validity of tho first dause, and that so much of the judgment as declared the nullity of tho second clause be annulled, and drat there be judgment declaring the disposition to bo valid, and ordering the executors to execute it.

First — It is contended on the part of the executors that tho first clause is a double prohibited substitution, first, because tho property is to be preserved and returned to tho daughter of O. Echinger; second, because it is to be preserved and returned to Miss Kellogg-.

No one is charged by tho testator to keep and preserve this sum, tho fivo thousand dollars, until tho majority of the legatee, and then to return it to her. Whatever tho title may be which by this will vests in the little daughter of Catherine Echinger, it vested eo instan ñ on the death of the testator. “ I give to the little daughter of Catherine Echinger fivo thousand dollars.” That which follows, “tho said sum to bo invested in such a way that she may receive the interest annually and the principal at her becoming of age,” docs not postpone her title to her majority. The testator simply points out tho mode in which this fund shall be administered during the minority, and that which he directs to be done is precisely what the tutor of the minor is required by law to do. He must invest the funds of the minor coming into his hands, and ho can not encroach upon the capital, oven for the maintenance and education of the minor, without the authorization of the judge on the advice of a family meeting.

The plain meaning of this clause is that the five thousand dollars shall become the property of the child at once. If the disposition had stopped there, the tutrix would have demanded this sum of the executors, and she would have administered it, necessarily, during the minority, because of the incapacity of the child. The testator preferred to have the investment made by his executors. This does not prolong the term of their administration. They are not to have the control of the money except to invest it in such a maimer as that the legatee may receive the interest annually. When they make the investment it will bo in the name and for the benefit of the child, .and the thing in which they make the investment will be the property of the child, as the money invested was, and will be in the custody of her tutrix, who will receive the interest for the child during her minority.

We find no semblance of a substitution in this. It has long been settled that the prohibited substitution is that disposition by which the first taker is charged to keep and preserve the thing during his life, and to transmit it to another at his death. If the money had been given to some one charged to keep it until the majority of the child, and then to give it to her, this might have been a prohibited Jidei commission; but it would not have been a substitution. The gift is to the child directly, absolutely, and there is no limitation or restriction of the power of disposal, which belongs to her as owner, beyond that which the law itself imposes during and by reason of her minority.

We interpret that part of this clause which relates to Miss Kellogg as a vulgar substitution; “ a disposition by which a third person is called to take the legacy in case the legatee does not take it;” which the Civil Code, article 1521 (1508) declares to be valid.

Article 1714 (1706), of the Civil Code, declares that “a disposition must be understood in the sense in which it can have effect rather than that in which it can have none;” and this is in accordance with the civil law.

Treating “ de rebus dubiis,” the Digest, lib. 34, tit. v., I. 12, Julianus says: “ Quotiens in actionibus, aut exceptionibus ambigua oratio est, commodissimum est id accipi quo res, de qua agitiir, magis valent quam pereat;" and this is a necessary rule of interpretation.

If the disposition in question were equally susceptible of either of two interpretations, the one making it lawful and valid, the other making it unlawful and void, the courts would be compelled to adopt that interpretation which would make it lawful and valid, rather than that which would make it unlawful and of no effect; “ ut res magia valeat quam per eat”

“In the event of her death.” When? We must presume that the testator knew the law, and that he did not intend to violate it or to make nugatory any part of this last solemn act by which he was disposing of his property and effects preparatory to his death. Ho knew that the legatee would die in the course of nature, as he was about to die. He did not contemplate her death, which he knew would certainly occur, as a mere contingency which might or might not happen. When he used the words “ in the event of her death,” ho had in his mind, not simply that event which is certain with respect to all mankind but an event which was uncertain only as to the period at which it might occur. If he had said: “In the event of her death before the ago of majority the, said sum is to go to the daughter of my niece,” etc., the disposition would have been a substitution. Exit if ho had said: “In the event of her death before my death, the said sum is to go,” etc., this would have been a vxxlgar sxxbstitution, a perfectly lawful and valid disposition.

When tho testator says “in the event of her death,” he evidently means to connect that event with a period of time well fixed in his own mind, as a contingency for which he .desired to provide, and had the power to provide. He has failed to express that period; and the courts are compelled to supply this omission. 'In fixing the period which we must suppose was in.tho mind of the testator, it is as easy, as reasonable, as natural to say, that he means “ in the event of her death before my death,” as to say, “in the event of her death before majority,” or at any time, happen when it may.

In the first hypothesis, it wus perfectly in the power of the testator to provide for the contingency. In the event of her death before he died, the legacy to her woxxld fail, and in that event he desired, and so provided, that it should go to the daughter of his niece.

- In the second hypothesis, it would not have been within the power of the testator to provide for the contingency. If the legacy to the little daughter of Catherine Echinger had been coxxpled with the condition that in the event of her death before the age of majority, or at any time whatever, it was to go to the daxxghter of his niece, the whole disposition would have failed — would have been void; and neither of these objects of his regard woxxld have taken or been benefited by the intended benefaction.

' The testator was at Liverpool, and Mrs. Echinger and her little daughter were in the parish of Jefferson, in the State of Louisiana. He did not know, he coxxld not have known, that the child was actually living at the time he was making his will, much less that she would survive him. He desired to give her five thousand dollars; but ho 'did not wish to secure tins sura undisposed of in the event of the death of the. child during his life, and the consequent failure of the legacy to, her. He therefore provided, by vulgar substitution, that this sum should in that event go to the daughter of his niece.

The law requires us to give effect to this disposition if it can bo done-In order to do this wo have but to assume that the testator did not intend to make a disposition in violation of a prohibitory law, and therefore of no effect; and that ho simply intended to name a person to take as legatee in the event that the little daughter of Catherine Echinger should not be living at the opening of his succession by his death.

Second — It is contended also, that the second clause is a trust; and that all trusts arojidci commissa, and are prohibited.

The prohibition of the Code is leveled at these fiduciary bequests, Jklei commissa, by which the legatee is used merely as the means of transmitting to one incapable the property which is given to the legatee only for that purpose; and a,t the tenures by which property is tied up for a length of time in the hands of individuals, and placed out of commerce. It never was the object of the Code “to abolish naked trusts, uncoupled with an interest, which are to be executed immediately.” Mathusin vs. Livaudais, 5 N. S., 302; succession of Franklin, 7 An.; succession of McDonogh, 8 An.; Henderson vs. Rost, 5 An.

The testator had given five thousand dollars to the daughter of Catherine Echinger. He had not chosen to allow this money to fall into the hands of the mother, the natural tutrix, because ho desired it to yield an annual income for the maintenance and education of the child; and ho had more confidence in the capacity of the executors to make this investment in such a manner as to secure his object, than in that of the mother, necessarily of loss experience in such matters than tho persons to whom he had intrusted tho execution of his will. But the special legacy of the furniture, etc., was of much less importance. If he had given these movables to the child directly, they would necessarily have fallen into the hands of her mother, her tutrix, and when he gave them to the mother for tho benefit of the child, tho effect was precisely the same as if he had given them directly to the child. In other words, he imposed upon the mother, -with respect to these movables, the same obligations as would have devolved upon the executors if he had given them directly to tho child. In tho language of the court in Mathusin vs. Livaudais, 5 N. S., 303:

“ The obligations imposed on tho legatee by the will of the testator in this case can not be distinguished from that of an executor, except in tho name; and it is tho duty of the court to look to things rather than to words.”

It is the duty of the. mother to execute this trust immediately. We do not see how any rule of law or of policy is contravened by this disposition; and the moment the mother comes into possession the trust will be executed in accordance with the intention of the testator. The mother will hold and possess for her child as natural tutrix, not as trustee under the will; and she will be responsible for the property and effects, not as trustee under the appointment of the testator, but as natural tutrix •under the law.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it relates to the legacy of five thousand dollars, .given to Margaret Lenora Echinger, the little daughter of Catherine Echinger, be affirmed. That said judgment, in so far as it declares void the legacy given to Catherine Echinger, for the benefit of her little daughter, bo avoided and reversed; and that the said legacy be recognized as valid and obligatory. That the executors of the last will and testament of Hugh D. Cochrane bo ordered to execute the same by delivering to Catherine Echinger, for the benefit of Margaret Lenora Echinger, her little daughter, the furniture and effects given by the said will to the said Mrs. Catherine Echinger for the benefit of her said child, according to the tenor and-terms of the said will, and as therein .set forth and described, and that the appellants in their capacity as executors pay the costs of this appeal.


author: Spencer, J. Spencer, J.

text:
    No. 6600.
    Succession of Hugh McCloskey. Opposition of Mrs. Alice McCloskey.
    A donation, of future property, contained in a marriage contract, is not a legacy. It is a donation inter r/ros, and at tlic death of tlio donor becomes a debt of his succession.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.
    21 Gilmore & Sons, for the executors and appellees.

      James Timony, for opponent.
   The opinion of the court was delivered by

Spencer, J.

The decedent, Hugh McOloskey, and “Mistress Alice B. Grant,” before their marriage, entered into a marriage contract before William J. Castell, Esq., notary public, of which the following is one of the stipulations:

“Fourth — In consideration of the marriage, and of the love and affection which the said future husband bears to his said future wife, he does by these presents donate to his said intended wife the sum of $10,000 (ten thousand dollars), in the event that she shoidd survive him, said sum to be taken from the mass of his succession.”

They were married and she survived him.

Is the ten thorrsand dollars a debt of the succession, or is it a legacy ?

The executors say it is a legacy. The opponent says it is a debt of the succession.'

The executors contend that this is a donation of future property by marriage contract, and that it is, therefore, testamentary in its character, and to bo paid as a legacy and concurrently with other legacies. The opponent contends that it is a donation -Inter vivos of present property, suspended by a condition, and that the condition, to wit: survivorship of donor, having happened, it is a debt of the estate and bears interest from donor’s death.

The rules of our Code governing this case are to be found in the general provisions relative to “donations inter vivos,” and more especially in chapters YIII. and IN. of Title II., Rook III., of the Civil Code, entitled, respectively, “Of donations made by marriage contract to the husband or wife and to the children to be born of the marriage,” and “Of donations between married persons, either by marriage contract or during the marriage.”

Wo agree with the counsel for the executors that the disposition in question is a “ donation of property in future.” It is a donation of a “ sum to be taken from the mass of his succession,” so that the donee lias no right which she could enforce during the life of the donor, and a right dependent upon his death and upon his succession. If ho died without property, at the time of his death, there was no recourse for her.

But because the donation is “ of future property,” it does not follow that the donation is testamentary — that it is a legacy.

Donations by marriage contract are not classed by the Code under the title of testaments. They are not subject to the forms prescribed for any kind of testament, but simply required to be passed before a notary and two witnesses, like other donations, O. C. C., 2308. Article 1738, O. C. C., declares that, “ A donation of property in future * * * made between married persons by marriage contract, * ® ® shall bo subject to the rules established by the preceding chapter (YIII.) with regard to similar donations made to them by a third person,” etc. The rules established and referred to are found in acticlc 1728,0. C. C. This article of our Code corresponds to article 1082 of Code Napoleon. Commenting on the articles of this chapter (YIII.), Mercadé, vol. 4, p. 210, says :

“Onavu sous l’acte 893, No. 11, que, malgré l’opinion contraire do Merlin et de Toulin, il n’existe plus, sous le-Code, do donations a cause do niort; ct que les liboralités exceptionnelles dont s’oecupent notro chapitre et le cliapitre suivant ne sont toujours que des donations entre-vifs, qui restent soumises aux regies ordinairos pour tous les cas qui ne sont pas l’objet d’une derogation formelle.”

Again he says, commenting on article 1082, C. N., (corresponding to 1728 aforesaid):

“ Aujourd’hui, comme le prouvent et l’article 893 et la subrique de notre chapitre, et les articles 1082,1083,1089, ce n’est plus la qu’une donation entre-vifs, une donation de biens d venir; et c’est par les regles genérales des donations, non par celles des successions ou des testaments, qu’il faudra suppleer aux regles spéciales de cette maniere de disposer.” Yol. 4, p. 212.

We accept these views as being the true exposition of the law, and as in consonance with the provisions of our Code. We have examined with care the cases in our own courts referred to by the counsel of executors, and we find nothing in them to change our views of the provisions of our Code, under which we think the ancient “ institution contractuelle ” no longer exists.

In Fowler vs. Boyd, 15 L., 562, this court held that a universal donee under a marriage contract, like a universal legatee under a will, is by mere operation of law seized of the whole estate, in the absence of forced heirs, and no demand of possession is necessary of the heirs at law.

In Criswell vs. Seay et als., 19 L., 528, where the husband, having then living two children of previous marriage, makes, in his marriage contract, a donation to his future wife, of “ all the property of whatsoever kind and description he may die possessed of, and which may lawfully be given by act of donation according to the laws of Louisiana; that is to say, of all his property that he may die possessed of, and which ho is or may be entitled by law to dispose of mortis causa, and which portion will be determined by the number of heirs that he may leave at his decease.” It was held by this court that the two children, his only forced heirs, having died before him, his surviving wife became his universal donee and entitled to his entire estate. That the capacity to make such a disposition, as to its amount, must be determined by reference to the time of the donor’s death, because it is not till then that the donation is to take effect. True, the court arrives at this last conclusion by deducing it from the rules of our law in reference to testamentary dispositions, and says that it is a donation causa mortis. But wo do not see that this is to say that it is a testamentary disposition. On the contrary, we think it is not. It is undoubtedly a donation to take effect on the death of donor. It is a contract, an irrevocable act, depending upon the happening of a future event, to wit: the predecease of the donor ; and while possessing some features resembling in their effects testamentary dispositions, yet clearly distinguishable from them.

We, therefore, conclude that the disposition in question is a donation inter vivos, taking effect at the death of the donor. That the donee is not a legatee, but a creditor of the estate, and as-such entitled to be paid by preference to the legatees, and with legal interest from the death of the donor, Hugh MeCloskey.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, and it is now ordered and decreed that there be judgment sustaining the opposition of Mrs. Alice MeCloskey to the fifth provisional account of the executors, and that she be placed thereon as a creditor for ten thousand dollars, with five per cent interest to date from death of Hugh MeCloskey, and that she be paid by preference to the legatees of said decedent, and that in other respects said account be homologated. It is further ordered, that the executors pay costs of both courts.

On Application eor Rehearing.

The opinion of the court was delivered by

Spencer, J.

A donation by the husband to the wife, by marriage contract, of future property, leaves the husband the right to sell or mortgage the. property so given, “ unless he has formally barred himself of it in whole or in part.” O. C. C., 1729.

If in express terms he “ bars himself ” from selling or mortgaging the thing given, it differs from an ordinary donation only in this that it depends upon the survivorship of the donee, and the donor is not disseized of the property immediately. The mere fact that the donation made without such bar to alienation, leaves the, donor free to soli or mortgage, does not prevent its creating an obligation on him. An ordinal’}’ donation of a sum of money, payable on a future day or on the happening of a future event, does not prevent the donor from selling or mortgaging his property, but it does certainly create a debt against him.

So in this case the donation by Hugh MeCloskey of ton thousand dollars, payable out of his succession, to his wife, though not preventing him from selling or mortgaging his property (because he did not thus bar himself), created an irrevocable obligation on him during his life, and on his estate after his death. So binding is this obligation that article 1729, O. C. C., forbids him to dispose of his property to her prejudice “ by gratuitous title.” Yet we are asked in this case to permit him to do what the law says he can not do. Wo are asked to give effect to his will a subsequent “gratuitous title.” to the prejudice of this donation; to allow him to dispose “ on gratuitous title ” of the thing previously given by marriage contract — which the law says explicitly he can not do.

This donation must be preferred to the legacies, or else wo must expunge article 1729 from tho Code.

We therefore adhere to our previous opinion that the donation in this case created cui obligation, a debt, duo at tho death of Hugh McCloskey, and that under the general law it bears five per cent interest from the time it was due. It is concedcdly not a legacy, and, so far as we can see, has none of tho effects of a legacy, except that it is payable after death of the donor out of his succession. It certainly is payable in preference to legacies, which are subsequent “gratuitous dispositions.” We are not called upon to decide whether it would be liable to reduction or defeat by debts of tho donor. Perhaps such debts would have a preference over the donation, but that does not prevent the donation having a preference over the legacies.

Tho rehearing is refused.