text:
    No. 984
    Succession of Edward Herron. On Oppositions to Final Account.
    An Opponent to the Account of an Administrator, who has not appealed from the judgment of the lower Court, and who is not Appellee either, cannot be heard in this Court asking for an amendment of the judgment.
    It is too late to urge an objection to the legality of the appointment of an Administrator, in an Opposition to his final Account,when it appears that he was regularly appointed by a competent Court.
    "ÍThen the sale of Succession property was legally ordered and made, and the Administrator received the price thereof in Confederate money, which was then the only currency in the State, he cannot be held liable for the said price in any other than the same Confederate money. Decision in Succession of Womack, 29 An. 579, affirmed.
    APPEAL from the Fifth Judicial District Court, parish of Ouachita. Richardson, J.
    Stubbs & Stillman for Opponents and Appellees:
    First — An administration is unnecessary when there are no debts.
    Second — If such an estate is administered, and to its material injury, the administrator is liable personally for his acts of maladministration.
    “Third — An administrator who forces a protracted administration of over sixteen years of an estate perfectly solvent and owing no debts, and who fails to file a single annual account of his gestión within that period, should be compelled to pay interest at ten per cent per Annum on sums in his hands, from a period one year subsequent to the time of his receiving and failing to account for them down .to their payment.
    Cobb & Gunby for the Administrator, Appellant:
    First — When the administrator of a succession, opened during the war, received Confederate money, the only currency in circulation, for the price of personal property sold at succession sale, and afterwards distributed the pro rata share of the proceeds to seven of eight heirs, the eighth being a minor, to whom, on attaining her majority, her pro rata is tendered in Confederate currency, and refused, the loss ■should fall on the latter, and not on the administrator, if he is shown to have dene his duty.
    Second — When what is known as “currency,” or current money, is received by one acting in a fiduciary oapacity, it is not necessary for him to keep the specific bills or coins received, but it will suffice to lender a like amount of such currencey. Aliter, when unourrent money or property is received by such fiduciary. Succession of Womack, 29 An. 579.
   The opinion of the Court was delivered by

Todd, J.

Edward Herron died in Ouachita parish in January, 1863, leaving an estate appraised at 17611 25, of which $2811 25 was personal property, and a number of heirs, some of whom were minors.

Shortly after his death, David MeQuiller, a son-in-law of the deceased, was appointed administrator of his succession; and soon after his appointment caused to be sold, under an order of court, all the personal property belonging to the succession. The sale was for Confederate money. The shares of the heirs of age in this money was paid over to them by the administrator, and their receipts taken for the same. The land was partitioned among all the heirs.

On the 25th of August, 1879, David MeQuiller, at the instance of the two of the heirs of deceased parties to the present proceeding, rendered an account of his administration of said succession, showing a balance due by the succession to him of $172 31. This account was opposed by Catherine E. Herron, wife of R. A. Phillips, and R. A. Phillips, tutor of the minor, Mary E. Phillips, child of Louisa Y. Herron, deceased, who was a daughter of Edward Herron, deceased.

■ The grounds of the opposition were substantially these: That there were no debts owing by the succession, and that the appointment of an administrator was unnecessary; that there was no necessity for the sale of the personal property, and that the administration was unwarranted and injurious to the succession. Opposition was made, also, to several credits claimed by the accountant.

There was judgment rendered in' favor of the tutor of Mary E. Phillips for ninety-five dollars, with five per cent interest from the 16th May, 1867 ; and from this judgment the administrator has appealed.

The opponents have asked in this Court an amendment of the judgment. This judgment was only in favor of one of the opponents (Mary E. Phillips), and the silence of the judgment as to the claim or opposition of the other opponent, Catherine E. Herron, is equivalent to its rejection. She did not appeal from this judgment, and tho administrator is appellant only from the judgment against him in favor of the opponent, Mary E. Phillips. The other opponent, Catherine E. Horron, being neither appellant nor appellee, has no right to be heard before this Court, nor ask for an amendment of the judgment. 6 L. 228; 8 L. 192 ; 14 A. 564; Boutté vs. Boutté, 29 A., N. R.

It is too late to urge an objection to the legality of the appointment of an administrator in an opposition to his final account, when it appears that the appointment was regularly made by a competent court, and the succession has been fully administered.

In this case the evidence shows that there were some debts owing by the succession, though small, it is true, compared with the property.

It has, however, been held by this Court, that “ even if there be no-debts, the appointment of an administrator may sometimes be advantageous, and even necessary. The propriety of subjecting successions to-such a charge must rest in the judge’s discretion on the facts before-him.” 3 A. 502.

And again: “ That where several of the heirs were minors, for whom the succession could only be accepted with the benefit of inventory, in such cases the Code specially authorizes the appointment of an administrator.” Dees vs. Tildon, 2 A. 412. See, also, 2 L. 299 ; 7 B-24.

Without expressing our entire concurrence in the decisions front which we have quoted, we are satisfied that the legality of. McQuiller’s appointment cannot be questioned in this proceeding.

Nor can the sale of the personal property complained of be successfully attacked at this late day and under this form of proceeding.

The sale was not opposed at the time by the heirs of age, nor by the tutor of the opponent, who was then a minor; but, on the contrary, the evidence in the record shows that it was approved by all parties interested. Besides, when we consider the situation at the time this sale was made, and all the facts, circumstances, and surroundings connected with it, we are not prepared to condemn the sale as unnecessarily or illegally made. In regard to the condition of affairs at that time, we. find the testimony in the record of the most respectable witnesses-Among others, Judge Bobert Bay, on the trial of the case, was called as a witness for the opponents, and we quote from his testimony as. follows:

“I suppose it would have been the best thing that could have been done with personal property belonging to an estate to have sold it, and not tried to keep it, especially such things as could be taken by armies- * * During that year the country was filled with troops, and, I believe, in 1863 a raid was made, and they swept away every thing like hogs and cattle; and if one army had respected it, the other would not.”

And J. W. Scarborough, a neighbor of the administrator, and an old citizen of the parish of Ouachita, of the very highest respectability, stated on the trial:

“I think it would not have been safe for an administrator to have-attempted to keep the personal property at that time, because the personal property of the succession of Herron was perishable property, and without personal attention would certainly have gone to waste. It would have cost nearly as much to have kept the property as it was worth.

“The personal property belonging to people living in that part of the-country, including mules, cattle, etc., was taken from them by one or the other armies as they occupied the country.

“ As a prudent administrator and man, I think Mr. McQuiller acted ’right in the course he took in selling the property as soon as possible. -1 think-1 advised him. to this course myself.”

This testimony, and that of other witnesses to the same effect in :the record, is uncontradicted.

Under these circumstances, and with these facts before us, we must -conclude that the sale was not improperly or illegally made. O. 0.1051, 1162.

If the sale was proper, it could only be made for Confederate money, .-as that was the only currency in circulation, and its circulation enforced •by public sentiment, and indirectly by the legislation and action of the only government which then exercised authority in the State, and possessed the power to compel obedience to its laws.

The administrator was then practically compelled to receive Confederate money for the property sold ; and having thus received it, and it having become worthless in his hands, it would be abhorrent to our ■sense of justice to compel him to pay to either heirs or creditors gold, silver, U. S. currency, or, in fact, any other money than he received. The loss must be theirs, not his, as was well said by our immediate predecessors in 29 A. 579, Succession of Womack:

“ The sale of the movables was a necessity. Witness says they or ■'their value would have been lost if they had not been sold. There was •but one currency in which tne administrator could be paid at that time. The court that ordered the sale knew that. No other money could have been permitted to pass current by the government that dominated the «country where these proceedings took place, and the use of force was not needed to effectuate this policy. A spontaneous and clamorous ^public sentiment supplemented and supported the financial policy of that government. The administrator could have done nothing but receive the Confederate currency, and there is no pretense that he derived «advantage from its use. It perished in his hands. He ought not to be :held responsible for it.”

The present case is plainly within the purview of this decision.

It is shown that the only money other than Confederate money •that ever came into the hands of the administrator was fifty-seven dollars and seventy-five cents in gold and silver, mentioned in the inventory ; and the evidence shows that he paid out more than this sum for "the estate, after the termination of the war, in United States currency.

Since it is shown that the entire fund received by the administrator, -with the exception mentioned, was in Confederate money, it would be ..Idle in us to discuss whether this fund was properly distributed, and ’■whether the objections raised by the opponents to some of the credits «claimed for alleged payments made were just or not.

It is shown that the administrator tendered to the mother of •opponent, who was herself a minor at the time of the death of Edward .Herron, when she became of age, her share of the Oonfederate money received by him, which she declined to receive, but in so declining, ac•cording to the evidence in the record, she recognized that it was her loss, and not the administrator’s.

With these views of the issues embraced in this case, and of the legal principles involved, we conclude that there was no liability on the part of the administrator to the opponent for any amount.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed ; that the opposition of the opponent, Bichard A. Phillips, tutor of the minor, Mary E. Phillips, be dismissed, and that in other respects the judgment of the lower court remain undisturbed ; opponent to pay costs of opposition in both courts.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 987.
    Elizabeth E. Bailey, Tutrix, et al. vs. David Ward.
    Permission given verbally to occupy immovable property during tbe lifetime of tbe donee ■without any rent or charge, does not confer any right of usufruct, use or habitation, but simply constitutes a tenancy at will, revocable at the pleasure of tbe owner.
    Oral evidence is admissible, in such a case, to prove the simple fact of the permission to occupy the property without rent, but not to establish any title to the property itself, whether of ownership or usufruct, use or habitation, derived from, or created by spelt permission.
    APPEAL from the Eleventh Judicial District Court, parish of Union. Graham, J.
    James A. Bamsey Attorney for Plaintiffs and Appellees :
    A contract by which one party transfers and grants to another the right to occupy and use land, and derive from the same all the benefits of it during his or her natural life, free of any ehaige, is a contract of usufruct, and can be established only by written evidence. C. C. 470-1, 533-40, 628, 646, 2275,1536 ; 7 An. 103 ; 23 An. 242.
    One who occupies the premises of another, even with his consent, for a time, gratuitously, is bound to deliver the property to the owner upon demand, and if he does not deliver it upon demand he must pay rent thereafter.
    J. E. Trimble for Defendant and Appellant:
    The right to the use aud occupancy of land does not imply any right of ownership therein, and may be proved by parol evidence, re-afflrmr ing 18 L. 70; 8 M. 702 ; 2 L. 161.
    A personal servitude, as a real servitude, may be established by the destination made by the owner of the land, and this destination can only be established by parol evidence. The destination is equivalent to title.
    Continuous apparent possession for ten years gives title to a personal servitude. .
    One possessing real property through the owner and with his consent is a possessor in good faith, and if evicted is entitled to pay for all improvements placed upon the land.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit has for its object the recovery of real estate and of money for the occupancy of the same.

The defendant resists dispossession and payment, relying upon acts of benevolence on the part of the owner.

The circumstances of the case, which it is unnecessary to reiterate, are fully set forth in the two opinions delivered by the previous Court in this matter, on the subject of the admission of oral testimony in support of the defense. To those opinions we specially refer. By the decree rendered, the case was remanded for the purpose of admitting the evidence previously rejected. That testimony was offered, but was opposed. To adverse ruling a bill was taken, and the evidence received.

We do not consider that the late Court, byremanding the case, intended to permit the introduction of parol evidence to show title to an element of ownership of real estate, but merely to allow the defendant to establish the character of his alleged title, ip view thereafter of passing upon the validity of such testimony and of regulating its effects.

So far as the testimony is offered, and was permitted to be introduced, to show any title whatever to the realty, whether in the shape of ownership, usufruct, use, or habitation, it is illegal, and is to be eliminated, as the law requires written evidence in such cases ; 7 A. 103 ; 23 A. 212 ; but, in^ so far as it was purposed to show permission on the part of the owner to occupy the property without paying rent or contribution for such occupancy, it is legitimate and can be weighed.

The evidence establishes that McLelland, the owner of the land, and father of the minors, plaintiffs, had given verbally the free enjoyment of the land to his mother and to her husband, his father-in-law, for the term of their life, thereby exonerating them from all rent during that period. The verbal permission to occupy during life cannot have the effect of conferring any right of usufruct, use, or habitation, and must be considered as not. uttered. Such, permission must be treated only as authority to occupy the property during the good pleasure of the owner, thus constituting the defendant a tenant at will, subject to be ejected at any moment. ¥e find no evidence of the value of the occupancy of the land.

The District Judge gave judgment in favor of the plaintiff for the land, but did not allow the rent claimed. Plaintiff must be nonsuited as regards the rent claim.

It appears that improvements have been'put upon the land by the defendant. The right to remove them, or demand their value, must be reserved to the defendant.

Judgment affirmed with costs, reserving the rights of parties to claim value of occupancy on the part of plaintiff and value of -improvements on the part of defendant.

On Application nor Rehearing.

We are asked to allow to the defendant in this suit the value of the improvements put by him on the property which he was to occupy free of rent, as the evidence in the record shows such value. Conceding that proof of such value has been introduced and establishes the claim, it does not follow that plaintiff is to be condemned to pay under the showing made for such improvements. As a condition precedent, it should have been established that plaintiff would not permit their removal. There is no evidence to prove that the defendant offered to remove those improvements. The testimony, on the contrary, shows his determination not to move his person, effects, or property, and to remain in possession of the land to the end of his life.

We think it is just to leave to both parties the assertion, vindication, and liquidation of the rights which they uphold the one against the other; the plaintiff to claim value of occupancy, and the defendant to •claim value of improvements, in subsequent proceedings.

Eliminating, as we have done, from the testimony that portion of it which was admitted to show authority to occupy the land, “ during life,” we construe the remaining evidence which is considered as legal as, proving nothing beyond a tenancy at will.

Rehearing refused.


text:
    No. 966.
    State of Louisiana vs. Charles Nelson.
    The power of this Court, in passing upon questions of law, in criminal cases, to look into the-facts with which those questions of law are “blended, is fully discussed m this Opinion.
    This Court cannot take cognizance of the evidence upon which a Motion for a New Trial was-refus'ed by the Court a Qua, unless that evidence is embodied in a Bill of Exceptions.
    Hules laid down for the conduct of the District Courts, juries and'sherifis; in criminal cases-
    APPEAL from the Fifth Judicial District Court, parish of Richland-Richardson, J.
    F. G. Hudson, District Attorney, for the State, Appellee.
    Boatner & Liddell for Defendant and' Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted for murder, tried, convicted, and sentenced to hard labor for life.

On appeal, he complains :

First. That the lower court erred in permitting the prosecuting' attorney to put to a State witness on the stand, during the trial of the case, the following question: “ Previous' to the killing of the deceased, did you ever tell the accused that if he did not quit frailing the child, you would give him a frailing ? ”

Second. That the lower court erred, in overruling his motion for a new trial, charging misconduct on the part of the sheriff and jury, in this:

(a). That the sheriff, without the knowledge or consent of the court or of the accused, after the j ury had received the charge of the court and retired, and were deliberating on their verdict, took them to the hotel in the town for supper, and afterward removed them to the court-house ;

(b). That the jury, while in the court-house, had access to the law-books used upon the trial, and did examine them in coming to their verdict.

Third. That the lower court ered in refusing a juror named to-be sworn and heard, as a witness.

1. The question which the District Judge allowed the State to propound and the witness to answer does nor appear to have been intended to elicit any important or significant fact. Its object was not to-proye an Offense not charged in the indictment. It was not intended to prove a frailing of the child, but was merely designed to show the-telling of the witness to the accused. The fact sought to be drawn. might have been made to appear by a question put in a different and' unquestionable form. The question propounded was one of easy answer.

Which ever way it was answered, provided the answerer was categorical, no injury could result to the accused, as the mere telling of any thing to him by the witness could not have incriminated him in the least degree. It may well be, however, that the witness, after answering the question, did add details uncalled for, which would have been inadmissible, but the bill of exception does not incorporate what was uttered by the witness in response to the question. The witness could and should have been guarded, at the instance cf the accused or his counsel,, before answering, and instructed by the court, as to the mode of answering. It was the right of the accused to have requested the judge so to direct the witness ; but it does not appear that any such warning-was asked or given. If the witness gave details or stated matters not responsive to the answer, and which should not have been admitted,, and which went to the jury unqualified, and which influenced the jury to-the injury of the accused, he has no one to blame but himself for not. availing himself of privileges accorded to him by law. He cannot now ask this court informally to relieve him, without presenting his grievances in proper form, and even then, without showing that they-are well' founded.

The Court considers, without further light, that the question was-irrelevant, and that so must have been the answer, and that neither can have prejudiced the accused.

It is possible, however, that the question was intended to prove-some fact forming part of the res gestee, or springing from the act under-trial, or which was to be a medium to prove an aggravating circumstance,, concurrent with the act charged in the indictment; such, as for instance, the intent of the accused. If the question was so designed, it was legitimate to permit it to be propounded. If the witness, instead of answering categorically, and no further than was necessary, had improperly attempted to amplify his answer, or had actually unduly magnified it,, he might have been nrevented from giving an unauthorized utterance,, or the jury might have been instructed to disregard or ignore the superfluous, uncalled, or unauthorized statement. 3 A. 512 ; 30 A. 457, 601 ; Greenleaf, part 3, ch. 3, $ 434 ; 2 Russell on Or. pp. 694, 698 ; Wheaton’s. Crim. L. v. 3, 3090.

It cannot be perceived how the answer of the witness, if it was-categorical and proper, could have proved detrimental to the accused,, or how it could have proved of any significance to the prosecution.

The bill of exception is not sufficiently full and explicit to enable ua to say that the ruling of the District Judge (which we must presume to» be correct' until the contrary is established) was erroneous and wrongfully made.

We cannot afford relief to parties who do not place their grievances in the only form in which the law requires them to be framed to demand •and obtain our attention.

2. We do not consider that we lack authority to revise the judgment of a lower court, refusing a new trial in a criminal case, over which the Constitution vests us with jurisdiction.

It was formerly and for a long period considered that in limiting the jurisdiction of the Supreme Court in criminal cases before them to questions of law alone, the constitution had, in terms, excluded from them all cognizance of questions of facts, and, therefore, that the Supreme Court had no power to inquire whether the discretion of the lower ■court in refusing a new trial in such eases, on the ground of misconduct ■of the jury, or want of due diligence in procuring the attendance of ■witnesses, was or not properly exercised.

2 A. 838, 983 ; 3 A. 500 ; 4 A. 438 ; 5 A. 398 ; 6 A. 311, 593, 657, 691; 7 A. 47, 122, 284, 531; 8 A. 114 ; 10 A. 501; 11 A. 478 ; 13 A. 45 ; 14 A. 79, 673, 785 ; 20 A. 236 ; 22 A. 9, 468 ; 23 A. 149, 433 ; 25 A. 418 ; 30 A. 305, 539, 1324.

A review, of the contradictory, vacillating, unsettled, and unsatisfactory jurisprudence of the State and of the conflicting foreign authorities by which it was sometimes propped, leaves the mind, however, ■under the fortunate and salutary impression that the Supreme Court would have the power to review the ruling of the court in such and ■similar instances, when the facts, upon which it was made, are established and presented, with the question of law submitted in a bill of exceptions.

Had that jurisprudence absolutely consecrated the doctrine that the ¡Supreme Court has no power to revise such ruling under any contin.-gency, even when the facts are embodied in a bill of exception, we would unhesitatingly decline to assume to countenance, and would repudiate ■such doctrine, however ancient, for we would then have dealt with it as with one fundamentally erroneous, which, if sanctioned, might prove exceedingly oppressive to the accused, in recognizing in the lower judge arbitrary powers bordering upon autocracy, to which no one can claim that any particular sanctity attaches under our system of government. The actions and rulings of judicial officers, presiding over the trial of cases in which the liberty or life of persons is at stake, should always remain open to criticism, revision, and correction by the superior legitimate authority in proper cases.

It unquestionably was the object of the framers of the different «constitutions of this State, which limit the jurisdiction of the Supreme 'Court in the criminal cases specified to questions of law alone, that such court should not have the power of reviewing the facts proved on the trial of the ease and passed upon by the jury, and so, that it should not have the right of determining, upon those facts, the guilt or innocence •of the accused; in other words, of reviewing the verdict of the jury. It was deemed by them that such matters were to be left solely and exclusively to the determination of competent juries, and that with matters within such province the appellate court should not interfere. They, however, have provided for the security of the accused, whose rights are vigilantly protected, that the Supreme Court should have the power of passing upon questions of law.

Questions of law, as a rule, are so intimately connected or blended with questions of fact, that it is almost impossible to consider the former without dealing with the latter. The facts may have been admitted or agreed to, or may have been proved, leaving the appreciation thereof, or the application of the law thereto,' to the court; but in any contingency, there must necessarily exist a certain order or condition of facts, upon which, as a basis, the decision of any question of law can be predicated.

In the issue before us, the question would be:

“ Under the facts which the record establishes was the accused entitled to a new trial ?”

A mere question of law would, after all, be presented.

The prohibition to the exercise of the jurisdiction of this Court lies to its power to find pure questions of facts, such as were submitted to and found by the jury. The inhibition does not extend to the questions •of law based upon facts submitted to and determined by the judge. Of course the Court could not review, under any circumstance, the verdict of the jury on the facts before them, on the trial of the accused.

This Court has, therefore, authority to consider the facts established on a motion for a new trial, when they are such as were not submitted to and passed upon by the jury, but were considered and decided by the judge only. It has also authority to determine whether under the circumstances of this case the lower court should or not have granted the new trial asked, provided the matter be presented in the proper form.

The lower court on the motion for that relief considered the affidavit of the defendant, as well as the evidence introduced to show misconduct on the part of the sheriff and jury. That testimony was taken in writing. The lower judge overruled the motion for a new trial, but no bill was reserved. Under the jurisprudence as it is, this was a grave ■omission.

Had it not been ruled otherwise, we would unhesitatingly hold that it was unnecessary to present those facts in the shape of a bill of exceptions, as it may well be that the exceptor and the judge may disagree as to what the facts proved were, make different statements, and this to the mystification of the appellate court. We could not perceive, even were it otherwise, how a bill could be required, as a bill of exception is intended solely to put in the record matters which, without it, would not be found in it.

However incongruous the ruling may appear, it is infinitely preferable that it do exist than if it did not; as in the latter case, the accused would be without remedy against the adverse ruling of the lower judge, as this Court could not extend any.

The difficulty of a disagreement between the judge and counsel as to the facts proved may well be obviated by requiring the testimony to be reduced to writing, and, next, annexing it to a bill of exception, as a component part thereof, it being the clear duty of the judge incases of motions for a new trial, involving facts not submitted to the jury, to have such testimony put of record at the instance of either party, as the same is to be weighed, first, by the judge a quo, and, next, by the appellate tribunal.

In the insianee before us, both the evidence and the overruling of the motion for a new trial are of record ; but as the matters urged as grounds for a new trial are not presented in the form prescribed by long existing jurisprudence, we do not feel authorized to pass upon the same; and, therefore, cannot disturb the refusal complained of. While we do not propose to pass upon the sufficiency of the evidence to justify a new trial, we make it our duty, for the better administration of justice, to take occasion to express our views on the law which should regulate courts and juries after submission of a criminal case, in instances like those presented by the record:

1. After a jury has received the charge of the judge, and has retired to deliberate on its verdict, it should not be promenaded through the streets of a city or town, or outside of its deliberation room. The jury should be retained in that room, where the meals and refreshments to which they are entitled while engaged in the discharge of the onerous and important functions imposed upon them can be furnished them, the latter to a reasonable extent. The dangers attending such removal of juries from their room of deliberation, unless in cases of indispensable necessity, which exposes them to improper communications, by language spoken, written, or signified with outsiders who may so easily convey reprehensible information, or offer criminal inducements, unnoticed by the officer in charge, at once suggest themselves to an. experienced and impartial observer.

Against such practices, in cases of felony, we make it the duty of district judges, of district attorneys, and of sheriffs, particularly, to guard.

2. The proper course for juries whose members desire information touching the law involved in cases submitted to them, is to apply to the presiding judge, who is authorized to charge them accordingly, in open court, in the actual or constructive presence of the parties, and from whom it is safe for them to take the law to be as by him officially expounded to them. 11 A. 81, 206, 429 ; 12 A. 264, 386.

It would be irregular for the prosecution or for the counsel of the accused, without the sanction of the court, or the consent of the accused or knowledge of the State attorney, to submit books and authorities to the jury. It would be even imprudent to allow the jury to have access to law-books found in their room or elsewhere, without permission of the court or consent of the parties, as jurors who have not been trained to the knowledge and construction of the law may well misunderstand and misapply it, to the injury as well of the State as of the accused.

Wheaton’s Am. Crim. Law, ?¿ 3138, 3149 ; Graham & Waterman on New Trials, vol. 2, p. 332; R. S. 991; 30 A. 539 ; 29 A. 715 ; 19 A. 143.

3. The proposition that a juror sworn to do his duty, and who is presumed to have done it, cannot be offered as a witness to impeach his official act by showing under oath his own misconduct, or that of his fellow-jurors, in disregard and contempt of the .law, is too well established to be for one moment questioned. The court must derive its knowledge of the misconduct of juries from some other source than the jurors themselves. 3 A. 435 ; 6 A. 653 ; 1 N. S. 514 ; 11 L. 141.

It is therefore ordered that the judgment appealed from be affirmed.

On Petition eoR a REHEABiNe.

It is due to -the counsel who represented the accused, both in the lower and Supreme Court, to say that they have done so with a learning and zeal which are the more creditable, as the defendant is a pauper, incapable of offering any remuneration for the valuable services rendered him. No blame whatever can be attached to them for not presenting the matters incident to the motion for a new trial in the shape of a bill of exception, as the bench and bar have been, for a long series of years, in doubt as to whether the facts submitted to the judge in such a proceeding could at all be reviewed by the appellate court. District Judges have gone so far as to refuse permitting the testimony from being taken at all in writing, and in this they were sustained.

It is fortunate, however, that the testimony was so reduced in the present instance.

We readily admit the uselessness of a bill where the evidence and' the ruling are of record ; but think that we have gone far enough in favorem libertatis civis, without upturning a sort of irregular practice, which, was a step in the right direction, and which may be viewed as a protest against the refusal of the judge to grant the relief sought. The rulings in the cases of Swayze and Gunter, 30 A. 1323, 537, do not lay down that this Court can review the facts on a motion for a new trial, in the absence of a bill of exception. They refer to the 11 A. p. 478, which requires the taking of such a bill. The opinion which we have rendered in this case itself shows how inconsistent and superfluous we consider such a practice: but we are not prepared to alter our views presently on the subject.

Eor the quiet of the consciences of the counsel who have conducted the defense, we will take the liberty of saying that even had a bill of exception been taken in this case embodying the affidavit and the testimony produced on the motion for a new trial, and had we to express an opinion on that evidence, we would have considered it as insufficient to support the alleged grounds of misconduct on the part of the sheriff and jury.

The acts complained of were tolerated under what was considered to be admitted rules in such instances. Those which we have laid down are intended to operate prospectively, and cannot, in justice, be applied to cases originating previous to their announcement.

Rehearing refused.


author: Todd, J.

text:
    No. 989.
    W. R. Tugwell vs. J. L. Tugwell.
    "When tlie Community of acquets and gains is dissolved by the death of the -wife, the respective interests of the surviving husband and of the deceased wife attach, at the moment of its dissolution, to the property of the Community, subject to the payment of , the Community debts. This right will be recognized if sued for in the proper action, and may be enforced at anytime, when demanded by a partition of the property or otherwise,- — even when the property is burdened with the usufruct in favor of the surviving husband; unless an opposition is interposed by creditors of the Community, or by the Administrator of the succession of the deceased wife, demanding security for the Community debts.
    Heirs of the deceased wife, suing, not for a partition of the Community property, but only for the recognition of their rights in the same, need not malee their co-heirs parties to the suit.
    Hor is it necessary that their heirship should have been decreed by the Probate Court, before the institution of a suit for the recognition of their rights in the Community property.
    APPEAL from the Eleventh Judicial District Court, parish of Union. Graham, J.
    -James A. Ramsey for Plaintiffs and Appellants :

      When a married woman dies, leaving at her death an undivided interest in community property in possession oí the surviving husband, and when at her death the community owes no debts, her heirs may sue in the District Court for their share of said community property as soon as the husband enters into a second marriage. 9 L. 580; 12 E. 266 ; 4 O. S. 653; 3 A. 562 ; 5 A. 381-2 ; 6 A. 295.
    An heir may sue for his share of a succession without making his co-heirs parties to the suit. 4 O. S. 472; 3 L. 134 ; 5 L. 430.
    In an action for the ownership and possession of property in the District Court, that court may inquire into the proceedings of the Probate Court when plaintiffs were no parties to those proceedings. 28 A. 303 ; 10 O. S. 1; 11 L. 384, 390 ; 12 L. 214; 27 A. 625.
    An heir may sue for the possession of property inherited by him, which has been disposed of by defendant, without ever having been recognized as heir by a judgment of the Probate Court. 7 E. 183 ; 5 E. 9 ; 2 L. 300 ; 7 L. 292 ; 12 E. 258.
    J. E. Trimble and Eutland & Hyams for Defendant and Appellee:
    The father, who is tutor to his minor children, cannot be forced by their major co-heirs to surrender to them specific property, nor stated amounts of money, until a settlement of the’tutorship has first been made, showing what is due them. Baird, Under Tutor, vs. Love et al., 32 An., not yet reported.
    Neither can the heirs of the deceased wife claim certain property nor definite sums of money, from the surviving husband, until there has been a settlement of the community, where one has existed. 25 An. 214, 379.
    A suit by some of the heirs of a succession for a certain portion of the property belonging to the said succession .is in the nature of a suit for partition, and cannot be maintained where the other co-heirs are not cited or made parties thereto. 19 La. 239 ; 17 La. 348 ; 4 An. 56, 260.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs in their petition allege in substance:

That they are the legal heirs of their mother, Mrs. Sarah Tugwell, and the issue of her marriage with Joseph L. Tugwell, defendant in the suit; that their mother died in 1865, and at her death there was property, real and personal, belonging to the community which existed between her and her husband, Joseph Tugwell, who survived her; that their mother brought into the marriage eight hundred dollars, which had been disposed of by her husband; that in October, 1866, J. L. Tug-well contracted a second marriage; that since the death of their mother the defendant had disposed of all the personal property that belonged to the community, and continued to occupy the land ; that there were, besides petitioner, five other children of said marriage still surviving; that in 1878 the defendant qualified as tutor to two of the children and co-heirs, then minors, and caused an inventory to be made of nearly all the property that belonged to the community at the time of its dissolution, including in this inventory the property that was no longer in existence, and that by the advice of a family meeting, alleged to have been illegally composed, caused all the land that belonged to the community to be adjudicated to himself.

It was alleged that at the time of the dissolution of the community it owed no debts.

By inheritance from their mother, they claim to be owners of two undivided ninths of the land, and the rents thereof from the date of the second marriage of the defendant; also the same interest in the value of the personal property of the community alleged to have been disposed of, and also the amount alleged to have been brought by their mother into the marriage. Judgment was asked for accordingly, with the further prayer that the adjudication of the community land referred to might be declared null.

An exception was filed to the suit in substance, as follows:

First. That the petition did not allege that there had been a settlement of the community between the mother of the plaintiffs and the defendant, nor of the tutorship of the minor heirs ; and that until such settlement, both of the community and the tutorship, plaintiffs had no right of action in the District Court.

Second. That the co-heirs were not cited, nor made parties to the suit.

Third.' That an action to annul the judgment and proceedings in the Probate Court will not lie in the District Court.

Fourth. That plaintiffs cannot sue defendant for a debt due their mother, without first being appointed administrators of her succession, or having themselves previously recognized as her heirs.

Fifth. That plaintiffs cannot maintain a suit against defendant individually for property which he holds as tutor, until such property is first shown by an acco nt to belong to them.

Sixth. That the Court is without jurisdiction ratione maierice and ratione personce.

The exception was sustained by the judge a quo, and plaintiffs have appealed.

First — For the purposes of this exception the allegations of the petition. must be considered as true. It is distinctly alleged in the petition that at the time of its dissolution the community owed no debts. And this presents the question, whether the heirs of the mother can sue to recover her interest in the community that existed between her and her surviving husband without alleging and showing that there had been, previous to the suit, a settlement of the community, even though they do allege that such community owed no debts at the time of its dissolution.

We hold that such an action will lie, and the allegations of the petition are sufficient to maintain it. If there were no debts owing by the community, there was no settlement of it to be made, and the property belonging to it could at once be partitioned among the parties interested.

Art. 2405, O. 0. declares :

At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess are presumed common •effects or gains.”

And art. 2406 :

“ The effects which compose the partnership or community of gains are divided into two equal portions between the husband and wife, or between the heirs, at the dissolution of the marriage.”

The construction of this last article, although seemingly so plain in its terms, and the nature of the interest of the surviving wife or her heirs in a community dissolved by her death, and the rights of action growing out of it, have been the subject of many and conflicting decisions by the courts of the State, and the jurisprudence on this point is somewhat unsettled.

In the case of German vs. Gay et al. 9 A. 582, the identical question here presented came up for adjudication. The Court in that case says :

“ The plaintiff as heir-at-law of Nancy Erier, late wife of R. Nichols, and in community with him, sues the defendant for one half of a slave which belonged to the community. The question presented by the exception is whether the heir of the wife has a right to recover the undivided half without alleging that a partition has been made, and the community settled.”

The Court held that the action would lie, and further says:

“It cannot be doubted that the community terminated by the death •of one of the parties ; if the husband survives, he has no longer a right to sell the whole property. The heirs of the wife may renounce or accept the community ; if they accept, either tacitly or expressly, they become joint owners with the surviving husband ; and if the husband sells, he can convey no greater right than he has himself, and his vendee becomes the co-proprietor with the heirs of the wife. * * *

According to our understanding of the Code, the distinct interest of the parties attaches at the dissolution of the marriage, subject, however, to the right of the wife or her heirs, as the case may be, to renounce, and thereby exonerate herself from the payment of the debts of the community. * * * * The District Judge is of opinion that a distinct interest does not rest in the wife or her heirs before a settlement or liquidation of the communitybut if this were so it would be difficult to reconcile that part of the Code which authorizes the wife, or herself, if she survives, to attach alienations made by the husband, even during-marriage, which had been made in fraud of her rights. If her eventual right depended altogether on a settlement to be had of the community, she would be without any right of which she could be defrauded.

“ The pretensions of the surviving husband rest upon the supposition that he has in law a right to settle and liquidate the cómmunity, and that the rights of the wife depend upon such settlement and liquidation, which must be done with him and him alone. His authority as master of the community ceases on the dissolution of the marriage. The right of the heirs of the deceased party then attaches to have a partition of the effects subject to the payment of the debts.” -

The opinion in this case, from which we have just quoted, but reasserts the principles enunciated in the case of Broussard vs. Bernard, 7 L. 222, and they have been followed by a long line of decisions which re-affirm the same doctrine. See 12 R. 266 ; 3 A. 562 ; 5 A. 581, 582 ; 16 A. 49 ; 18 A. 409 ; 19 A. 428.

In the ease of Bennett vs. Fuller, 29 A. 663, the various decisions on this subject were reviewed by our immediate predecessors ; and after referring to the confllict in the decisions, and thoroughly discussing the same, they quote from the earlier decisions which we have cited, and expressly sanction and approve the doctrine which they enunciate. We, too, concur in their conclusions.

To give the article of the Code referred to a different construction or the construction warranted by some of the decisions of this Court, a number of which have been cited by counsel for defendant, would be in a great measure to destroy the force of the article, and almost to deny any right under it whatever to the surviving wife or her heirs ; or if any right is recognized, it is so undefined, and its exercise clogged with so many conditions as to render it virtually impracticable.

To set at rest this vexed question, we distinctly announce that, construing the articles of the Code upon this subject in accordance with what we conceive to be their plain and express language, we hold that when the community of acquets and.gains is dissolved by the death of the wife, the respective interests of the surviving husband and of the deceased wife attach at the moment of its dissolution to the property of the community, subject to the payment of the community debts. This right will be recognized when demanded in the proper action, and may be enforced at any time when demanded by a partition of the property or otherwise, even when the property is burdened with the usufruct in favor of the surviving husband, where no opposition is interposed by creditors of the community, or by the administrator of the succession of the deceased wife, demanding security for the community debts.

Nor was it necessary that the petition should have alleged that a settlement had been made of the tutorship, as urged in the first ground of the exception. This entire tutorship proceeding embraced only the interest of the two minor heirs, according to the allegations of the petition, and the plaintiffs were not parties to it, and in no way affected by it.

There is therefore no force in this first ground of the exception. The allegations do show a cause of action.

Second — The suit is not for a partition, but only for the recognition of the right of plaintiffs to an interest in the community property ; and therefore it was not necessary to make the co-heirs parties. 3 L. 134 ; 5 L. 430; 6 L. 232.

Third — The suit is in part for the recovery of property, and thus far is petitory in its character. The defendant interposes a proceeding in the parish court, to which plaintiffs were not parties, as an obstacle to their recovery. The validity of such proceeding might become a legitimate subject for attack and investigation. But, as we have stated above, the adjudication to the defendant of the community land, and the entire tutorship proceeding, could have no material bearing in the case, and could in no manner affect plaintiffs’ rights under the allegations of the petition; and therefore need not even have been mentioned in the petition. 11 A. 384; 12 L. 214; 27 A. 625 ; 28 A. 303.

Fourth — It was not necessary that plaintiffs should have been appointed administrators of their mother’s estate to be authorized to sue. According to the allegations of the petition, the community owed no debts, and to have assumed an administration on a succession that owed no debts was unwarranted; and besides, the heirs by accepting a succession purely and simply, even if there be debts, can enforce any right » derived from the deceased by an action in their own names ; nor need a recognition of their heirship precede such action. 7 R. 183.

Fifth — There is no force whatever in this ground of the exception ; it refers to the tutorship proceeding, which we have shown could have no bearing in the case, nor in any way affect plaintiffs’ rights under their allegations.

Sixth — From what we have said touching the first ground of the exception, it plainly appears that the District Court had jurisdiction of the suit.as relates to the interests in real estate claimed, had the defendant even qualified as the tutor of the plaintiffs.

The rest of the demands embraced in the suit could only have been inferred by requiring the rendition of a tutorship account and-the proper proceedings in connection therewith in the parish court. It, however, appears from the pleadings that the defendant never qualified as the tutor of the plaintiffs ; and therefore they had a right to institute this suit against him in the District Court as though he were a stranger or an intermeddler. As the defendant was a resident of Union parish, he was properly cited in the District Court of that parish, and the plea to the jurisdiction rations persones is alike untenable.

The exception should have been overruled.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and that the case be remanded to'the court a qua to be proceeded with according to law, defendant to pay costs of this appeal and of the lower court from the filing of the exception therein to. this date.


text:
    No. 962.
    State of Louisiana vs. Scott Ross.
    Tlie verdict of tlie jury is not illegal and null because written “gulty withoit capitel par-nisk,” when read aloud and distinctly announced by the Clerk as “ guilty without capital punishment.” Besides, the law does not require, even in cases of capital punishment, that the jury sliould reduce their verdict to writing.
    It is not illegal for the Clerk, instead of the Judge, to propound to the prisoner the question why “ sentence of the law should not be passed upon him.”
    A witness cannot be asked whether the prisoner’s pistol was fired off accidentally or on purpose. It is for the jury to draw their conclusion.
    The special charge asked for by the prisoner’s counsel, that “if there has been any evidence produced on the trial, that the killing of ‘William Henry Anderson by the accused was accidental, then and in that event the jury cannot infer malice from the killing,” was illegal and properly refused.
    This Court cannot consider any question of fact connected with a Motion for a new trial, even when shown by testimony of witnesses regularly taken in open Court, unless the same is embodied in a Bill of Exceptions to the ruling of the Court below.
    Appeal bonne. from the Nineteenth Judicial District Court, parish of Terre-Goode, J.
    Sey. R. Snaer, District Attorney, and L. E. Suthon for the State, Appellee.
    Thomas L. ’Winder for Defendant and Appellant.
   The opinion of the Court'was delivered by

Todd, J.

The defendant was indicted for murder, was tried, convicted, and sentenced to imprisonment at hard labor in the Penitentiary for life. Erom this sentence he has appealed.

He assigns in this Court errors in the proceedings in the words following :

First — “That the verdict rendered by the jury, to wit, ‘gulty with-oit capitel purnish,’ ‘signed H. Eouth, foreman,’ is illegal, null, and void, not authorized by or known to the laws of the State of Louisiana, and does not justify any judgment save that of discharge without day.”

Second — “That it was error in the district judge not asking him, the accused, why the sentence of the law should not be pronounced against him. That the clerk of the court being under the constitution and laws purely a ministerial officer, and not clothed with judicial functions, is not warranted in propounding a question such as this, which is necessary in prosecutions of felony.”

1st. The law does not require even in capital cases that the jury should reduce their verdict to writing. It is sufficient if it is delivered orally. In this case it is shown by the record that the verdict was written in the words which we have quoted verbatim above. That it was handed to the clerk who was directed to read the same. It was read aloud by the clerk to the jury and the verdict distinctly announced as “guilty without capital punishment,” and the judge ordered it to be filed and recorded. The jury was then polled on motion of defendant’s counsel, and upon the name of each juror being called and asked by the clerk if this was his verdict, each one answered that it was. Even if the writing left in doubt what the verdict of the jury was, which is not very probable, the proceedings connected with the delivery of the verdict, which we have detailed, would certainly remove that doubt, and render it conclusive that the verdict was in accordance with and fully supported the sentence.

2d. Respectable authorities support the position that it is not ab- ■ solutely essential to the legality of the proceedings that the question embraced in the second ground of error, above referred to, should be propounded to the accused either by the judge or the clerk ; and that its •entire omission would not be fatal to the sentence.

28 Georgia, 576 ; 27 Mo. 324.

As to the effect of such entire omission, we are not called upon in this case to decide. The prisoner in this case was asked by the clerk “ if he had any thing to say why sentence should not be passed upon him in accordance with law.”

Bishop in his work on Criminal Procedure declares that this question is properly propounded by the clerk, and we believe this to be the ancient rule on the subject, just as he asks the prisoner on arraignment whether he is guilty or not guilty.

Bishop on Criminal Procedure, 1 v. 118.

3d. The counsel for the accused further urges, that upon the trial of the case a witness for the State was asked upon his cross-examination the following question:

“ Was the discharge of Scott Ross’s pistol accidental, or did he fire off the same on purpose ?”

That objection was made to this question, and sustained upon the ground urged by the counsel for the State, that it called for the opinion of the witness.

We think the ruling correct. It was the province of the jury to draw the deduction from the facts and circumstances connected with the shooting, as shown by the evidence, whether the shooting was accidental or not, which seems to have been the main, if not the sole, issue in the case upon which the defense relied. To enable the jury to come to a correct conclusion on this point, it was proper that every fact, .incident, and circumstance connected therewith should have been proved; but it was not competent to assist them in their conclusion by showing what the witness thought on the subject before them in their conclusion on this point. The question was clearly objectionable. 1 Greenleaf, 440; 7 R. 451; 13 A. 45 ; 21 A. 726; 27 A. 316, 392.

4th. Another alleged error complained of was the refusal of the judge to give this special charge asked for, viz.:

“ If there has been any evidence produced on the trial that the killing of William Henry Anderson by the accused was accidental, then and in that event the jury cannot infer malice from the killing.”

The court properly refused to give this charge. The accused was indicted for murder. An essential ingredient in that crime is malice. To charge as asked for¡would have been virtually to instruct the jury to believe any evidence produced on the trial that would show that the killing was accidental, and acquit the prisoner of murder, since without malice there could be no murder.

Besides, this evidence, if there was any such, might have been evidence, in the estimation of the jury, unworthy of credit, and the charge asked for was calculated to deny or restrict their clear right to judge of the credibility of evidence before them, and to accept or reject it as it might or might not commend itself to their confidence and belief.

The jury are the sole judges of the facts in criminal trials. It is their right and duty to consider all the facts before them having any bearing on the guilt or innocence of the accused. The charge in question would have drawn them from this broad field of investigation, and narrowed their inquiries to a single point. The charge asked for was clearly objectionable.

5th. A motion for a new trial was made, and refused by the lower court. The only complaint made here connected with this ruling is that General Lyons, one of the jurors who tried the case, was incompetent, for the alleged reason that he had before the trial formed and expressed an opinion in relation to the guilt or innocence of the accused ; but had sworn when examined on his voir clire that he had formed no such opinion.

Whether or not the alleged fact was established in the court below to the satisfaction of the judge, the record is silent. The only evidence we have of it is an ex parte affidavit of one Harry Hays Gage, made before a notary public, which appears in the record. Such evidence was inadmissible, even in the court a qua, to establish any fact. It is of course far less satisfactory than evidence taken contradictorily between the parties in open court. Tet to such an extent does the constitutional inhibition on the powers of this Oourt to take cognizance of questions of fact in criminal cases go, that we have recently held, in case of the State vs. Nelson, that this Oourt cannot consider any question of fact connected with a motion for a new trial, even when shown by testimony of witnesses regularly taken in open Oourt, unless the same is embodied in a bill of exception to the ruling of the Court. .

The counsel for the accused refers us to the ease of the State vs. Gunter, 30 An. 536, in which Judge Egan, as the organ of the Oourt, intimates that the Oourt might take cognizance of a fact connected with any incidental matter in a criminal case if brought to their attention by an affidavit. This was clearly an obiter, and we do not regard it as law.

We see no error in the proceedings to entitle the accused to relief.

The judgment of the lower court is therefore affirmed.


author: Levy, J.

text:
    No. 988.
    J. B. Rutland, Tutor and Administrator, vs. R. G. Cobb.
    Taluo and settlement of Counsel foes.
    APPEAL from the Fifth Judicial District Oourt, parish of Ouachita. Mchardson, J.
    Boatner & Liddell, for Plaintiff and Appellee, cited:
    4 An. 578 ; 11 An. 637 ; 3 An. 90; 2 Rob. 404 ; 3 An. 518 ; 21 An. 689 ; 27-An. 467.
    Oobb & Gunby, for Defendant and Appellant, cited:
    31 An. 130 ; 30 An. 363.
   The opinion of the Oourt was delivered by

Levy, J.

Plaintiff brings this suit to recover from defendant the • sum of three thousand two hundred and thirty-four dollars and seventy-six cents, alleged to have been collected by defendant, in his capacity as attorney, and to belong to the estate of John J. Hasby and his minor and other heirs, and which sum has not been paid over by defendant. The answer alleges that the suit was maliciously brought for the purpose of defaming and injuring defendant in his business as an attorney-at-law ; that defendant has rendered important services to plaintiffs, which were well worth four thousand dollars ; and he pleads in reconvention the difference between the amount he is sued for and the amount he - claims as a fee.

The defendant is an attorney-at-law; he was consulted with and engaged by plaintiff to represent the minor heirs and the major heir, J. J. Hasby, since deceased, and represented by Rutland as administrator, in all matters necessary to establish their legal rights and obtain their re- . spective shares in the succession of David Hasby, deceased. Thus, acting as the attorney of plaintiff; defendant collected a certain note belonging to the administrator, in his said capacity, amounting to six thousand four hundred and sixty-nine 62-100 dollars. Of this amount he paid to the administrator $3234 76, and retained in his hands the balance of $3234 86, the whole of which balance is claimed by plaintiffs in this suit, without giving the defendant any credit whatever.

• Defendant in his answer claims $4000 as being due to him as fees, for his professional services rendered to plaintiffs, and asks for judg-ment in his favor for the difference ($765 14) between the amount ($3234 86) retaihed by him, and the amount claimed as due him for fees ($4000.) There was judgment in the lower court in favor of the plaintiffs for the sum of $3234 86, and sustaining the reconventional demand of defendant to the extent of $3000. This judgment in favor of plaintiffs, to be compensated by that in favor of defendant for $3000, pro tanto, and the balance in favor of plaintiff, viz.: $234 86, to bear interest at-five per cent from the 12th of April, 1878. Defendant has appealed, from the judgment of the court a qua.

Plaintiff has filed a motion in this Court asking that the judgment-of the lower court be amended so as to give him judgment against the defendant for the sum of $1234, instead of the amount allowed by the decree appealed' from. This is a practical admission or fixing of defendant’s fees at $2000.

We have carefully reviewed the evidence on the subject of the value of the professional services of the defendant, and the record showing the extent and variety of those services, and the professional labor incident to' them. This satisfies us that the services of the attorney were ably, faithfully, zealously, and laboriously rendered, and inured greatly to the benefit of the plaintiffs. We find nothing to convince us that there was any stipulation as to the fee to be received, and we can well understand how the defendant, believing himself entitled to the re-numeration which he claims, .retained the balance of $3284 86 to be imputed thereto.

In view, however, of the amount involved and ultimately realized by, the plaintiffs, and to some extent appreciating the fee proportionately to the amount recovered or received by plaintiffs, we regard the amount allowed by the lower court as substantially fair and just to all parties, and are unwilling to disturb the judgment.

The judgment of the lower court is affirmed with costs.