author: DeBlanc, J. Spencer, J.

text:
    No. 7108.
    James O. Fox et al. vs. Wm. McKee.
    A lessor may consistently demand in one action the dissolution of the lease, and rent up to the moment the defendant surrenders possession of the leased property.
    Where a lessee contracts to pay five per cent attorney’s fee on the amount of the rent for the whole term of the lease, in ease it becomes necessary for the lessor to sue, and the lessor subsequently sues for and obtains a decree dissolving the lease, the lessee can be held for only five per cent attorney’s fee on the rent which had accrued at the time the dissolution of the lease took effect.
    A lessor may in one action sue his lessee on two separate leases of two pieces of property, and may provisionally seize any effects on the two premises subject to his privilege.
    The failure of a lessee to pay the rent agreed on at the time stipulated in the lease, authorizes the lessor to demand a dissolution of the lease.
    .Before a lessee can recover damages for any disturbance of his possession or enjoyment of the leased property by a third person, he must give personal, formal notice to the lessor of the disturbance, and call the latter in warranty. ■
    Mere failure to pay an installment of rent the day it is exigible will not warrant a provisional seizure when it appears that the accrued rent was tendered a day or two after it was due, and before the writ of provisional seizure-issued.
    Nor a wrongful provisional seizure of his effects, a lessee may recover only such damages as he shall prove he has suffered in consequence of the seizure.

      A PPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      Thos. M. Gill for plaintiffs and appellees.

      W. L. Thompson and 0. McRea Selph for defendant and appellant.
    The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the rehearing by Spencer, J.
   DeBlanc, J.

This suit is brought by plaintiffs to dissolve two leases from them to defendant, of certain properties owned by them in Algiers, and made for the space of five' years, one from the 1st of August 1876, ■the other from the 1st of January 1877. The cause alleged to obtain that dissolution is that defendant has repeatedly failed to comply with his obligations .as a lessee, and to pay — at,the dates fixed by his,contract. —the instalments of( the rent agreed upon. . ; ...

At the date of the institution of this suit, there was due but one, instalment of three hundred dollars, for the quarter which ended .on the-31st of August 1877. . .

In their petition, filed on the 3d of October 1877, plaintiffs allege that, they had good reason to-believe that their lessee would, remove from, the rented premises the property and effects subject,to their lien, and they accordingly prayed: ...

1. That said property' and effects be provisionally seized .to ¡secure-their claim.

2. That the two contracts of lease be dissolved.

3. That McKee be condemned to pay them the rent then due, and alt other and further sums, at the rate of three hundred dollars by quarter, as long as he will retain possession of their property, and — besides—five-per cent for attorney’s fees, in conformity to one of the stipulations contained in each of the leases.

The provisional seizure applied for was ordered and executed, and! the property seized bonded by McKee, who excepted to the proceedings directed against him, on the grounds:

1st. That plaintiff could not, in one action, sue upon two separate- and distinct leases of two pieces of property.

2d. Nor provisionally seize property on leased premises, in a suit, where separate premises were rented under separate leases, etc., etc.

The exceptions were overruled, and the defendant answered, reserving his right to urge the same exceptions :

That he leased the batture property described in plaintiff’s petition:-

1st. For landing boats and timber;

2d. For building steam-ways for hauling boats and other watercraft, out, and repairing them.

3d. That his steam-ways cost him four thousand dollars.

4th. That he never -violated the lease, but had tendered the rent, money sued for, viz $300, to one Vincent, the authorized agent to receive-the same, who declined to accept it;

5th. That the $300, for the rent due August 31st, 1877, the very amount sued for, and which was tendered to Vincent, was deposited with the sheriff.

Thus far as answer; defendant then claims, in reconvention, damages in the sum of twenty-five hundred dollars, for this:

1st. That David R. Fox, the agent of these plaintiffs did not quiet the defendant in the undisturbed possession of the property leased, from the unlawful infringement by one George Shorey, on the rights of McKee to the property leased.

2d. For the unlawful provisional seizure, obtained by plaintiffs, in "this suit.

3d. For not defending McKee against the suit of Shorey vs, McKee.

4th. Because McKee has not been able to enjoy the use of 'the' property leased, and the general misconduct of plaintiffs' who combined" to break the léase without legal cause or right.

Judgment was rendered in favor of plaintiff:

1st. Dissolving the leases.

2d. Evicting Wm. McKee of the leased property, and putting plain-' tiffs “ in corporeal possession thereof.”

3d. For nine hundred dollars, with five per cent interest per annum, on $300, from September 1st, 1877, until paid ; and like interest on like sum from the 1st December, 1877, until paid ; like interest on like •sum from 1st March, 1878, until paid, and

4th. For “such other sums as may become due and owing at the-rate ■of ‡300 per quarter,” “ as long as the defendant remains in possession.”

5th. • Condemning defendant to pay five per cent attorney’s fees on six thousand dollars.

6th. Recognizing plaintiff’s lien and privilege as landlord on the property herein provisionally seized.

In the record filed in this court, we have found sixty-six mentions •of sixty-six objections urged during the course of the trial, against the Introduction of evidence, and which testify of the zeal and vigilance with which this case was prosecuted and defended.

Defendant’s exceptions to the form of plaintiff’s action were properly overruled. Though based on different leases, that action in those parts which are excepted to, does not contain inconsistent demands,' contrary to or exclusive of each other, and the provisional seizure' ordered by the court was executed on none but the property and effects ■subject to the lien resulting from the two leases. O. P. 148-151. - '

Have plaintiffs shown sufficient cause for the dissolution of the leases ? They have: it is true that, when this litigation commenced, defendant was owing but one instalment of the rent, but it is also true that he had not been very punctual in paying the others. The payment of the rent, not by fractions, not after repeated demands or the institution of a suit to recover it, but at the date fixed by the contract, and in its entirety, is — on the part of the lessee, an obligation which he can neither avoid nor postpone; and if — through negligence or for want of' funds — he fails to comply with that obligation, his failure justifies the dissolution of the contract.

Rev. C. C. 2046 — 10 L. R. 22 — 1 A. 42214 A. 432.

Can the plaintiffs claim the dissolution of the leases, and — besides' —that defendant be condemned to pay them from and after that dissolution, in accordance with the terms fixed in the leases for the payment of the rent, from quarter to quarter, until delivery.of the leased premises, a sum corresponding to that which the lessee had- to pay during the existence of the dissolved contracts ? They can not: as remarked by Mr. Justice Slidell — the organ of this court in “ Sign vs. Lloyd” — that, relief is given by our Code in a single case: if the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease. The lessee — in that case — shall be bound to pay the rent until the thing is again leased out, etc. Immediately succeeding this article ■ of the Code is the following: “ The lessee may be expelled from the tenement, if he fails to pay the rent when it becomes due.” But no provision is made as to loss, by delay in re-letting.

C. C. 2681 (2711) 2682 (2712) — 1st. A. p. 421, 422, 423.

The court further said: “ It is to be remarked that, whatever apparent equity there may be in the view presented by the plaintiffs’ counsel, the omission to provide such relief as he asks cannot be considered as accidental. Our Code — in the great mass of its provisions — follows the Code Napoleon. That Code contains an express provision on this subject, which the compilers of our Code have thought proper to omit, * except in a special case.”

1 A. p. 422.

There is, in the two acts of lease a clause which we hereby transcribe : The lessee binds himself to pay all attorney’s fees in case it should be necessary at any time to sue for the collection of the rent or any part thereof, or to enforce the conditions of this lease: the said attorney’s fees to be fixed at five per cent upon the full amount for which the property is leased, from the beginning to the expiration of said lease.” One of the express, though unnecessary conditions inserted in the act of lease is “ that the lessor reserved the right to cancel it for any failure to comply with its terms.” The lessee by failing to pay at the time agreed upon, has himself authorized the action to cancel the-' contract, and he must bear an expense, the proportion of which he has himself fixed. He is not, however, liable for a commission on both the full amount for which the property was leased, and on every.fraction, which the plaintiffs claim as now due and to become due of the aggregate amount. Only one suit has been brought, and — for the attorney’s fees in that suit, only one commission can be allowed, and that is three hundred dollars.

In our opinion, plaintiffs are entitled to a judgment against defendant, dissolving the t.wo leases and condemning said defendant .to .pay them for rents — but only whilst the relation of lessors and lessee continued between them, that is until the 16th of March 1878, when the leases were dissolved, the sum of nine hundred and fifty dollars, three-hundred of which were deposited with the sheriff on the fifth of October 1877, and, for attorney’s fees, five per cent on six thousand dollars, the. full amount for which the property was leased.

Defendant claims in reconvention, against the plaintiffs the sum of twenty-five hundred dollars, for the alleged reasons that they have not-protected him in the possession of the leased premises, that they have combined to violate their contract with him, and that their provisional seizure was causeless and unlawful.

It was not, sho.wn that defendant’s possession of the premises, as. delivered by the lessors and within the limits designated by them apd which — for years — have been recognized by those who live in that neighborhood, has been interfered with or disturbed. It does not satisfactorily appear that Shorey was claiming any right to the leased premises, or within its recognized boundaries. If otherwise, McKee was bound to apprise his lessors of that fact by personal notice, to call them in, warranty, and — by his neglect so to do — he has lost his recourse against them for the damages which may have resulted from the pretended disturbance. We do not consider as a sufficient notice of that disturbance, McKee’s conversation with one of the plaintiffs, in which he called his attention to a steamer lying partly in front of the leased property and which — it seems — had Deen there tied up by Shorey — for, in that conversation McKee intimated that he would take charge of the matter and cause Shorey to move off.

C. P. 48, 43 — C. C. 2703 (2673) 2704 (2674).

This court has often decided that the lessee’s failure to pay the rent constitutes a good reason for the lessor to apprehend that the property, subject to his pledge may be removed from the premises leased. 8th A. 366, 374. That was and is the strictest construction that could or can be placed upon the law, and — inasmuch as it has been adopted for upwards of twenty-five years — we adhere to it; but we are not inclined to-extend it and to hold that the lessor has the right to provisionally seize the effects of his tenants, for the only reason that the rent was not paid on the day fixed in the lease, and though the next day or before the seizure the tenant offers to pay and the lessor refuses to receive the amount of the rent. Under such circumstances, the failure to pay authorizes the dissolution of the lease, but does not authorize the provisional seizure.

McKee, though willing, was unable to punctually comply with his obligation, but did in no way attempt to avoid it, or remove from the premises any of the effects subject to his lessors’ pledge. On the 17th ■of September, he sent one of his employees to pay the rent then due, tó thé agent' designated by plaintiffs to receive it, and that agent informed the employee that his instructions were to refuse the amount of the r’ent, if tendered after the 15th. The tender was informally made, emphatically refused, and — shortly after — the provisional seizure was applied for, granted and executed. That provisional' seizure was wrongfully’'Obtained, and those by whom it was obtained are personally responsible1 for the damages which it has caused to the defendant.

; d 'P. 295.

What damages did he prove that he. has suffered ? He claims, in his answer, that he was damaged in the sum of twenty-five hundred dollars', an'd-hás a witness, he swore — on the., trial — that he has lost, on account'of his alleged disturbance and the seizure, from five to eight thousand dollars. If less than a manifest exaggeration, this is certainly a mistake.

The seizure was executed on the 4th, released on bond on the 5th of October. He did not prove that, thereby, his credit had been either materially or otherwise affected — he did not prove what expenses he has incurred, and — under the only evidence which we can legally consider — we believe that, for. the inevitable troubles and costs which that causeless and wanton seizure has entailed upon him, he is entitled to neither less nor more than three hundred dollars. C. P. 295.

It is — therefore—ordered, adjudged and decreed that the judgment of the lower court is amended, the leases of the 1st of August 1876 and 1st of January 1877 dissolved, and that — after deduction of the damages allowed to defendant, and which we compensate against the amount allowed to plaintiffs for their counsel’s fees, they — the said plaintiffs — recover of said defendant, for rent, the sum of' nine hundred and fifty dollars, with legal interest thereon as follows, to wit: on three hundred dollars,-.the amount deposited in court from the 1st of September 1877 to the 5th of October of that year — on a like sum from the 1st •of December 1877 — on an additional and like sum from the 1st of March 1878, and on the sum of fifty dollars, from the dissolution of the leases, -on the 16th of March 1878. •

It is further ordered, adjudged and decreed that all other moneyed demands of plaintiffs against defendant and of the latter against the former are hereby rejected — and that, as thus amended — the decree appealed from is affirmed: the costs of the appeal to be paid by plaintiffs.

On Rehearing.

Spencer, J.

A reconsideration of this case induces us to modify our previous decree to some extent.

It is true, as stated in our former opinion, that upon dissolution of the lease, for other cause than that of misuse of the property, the tenant is not liable for rent until the property is re-let. But that is not the case before us.

Plaintiffs demand the dissolution of the lease, and rent up to the time that defendant surrenders possession to them. There is nothing inconsistent in these two demands, as was expressly decided by this court in Dubois vs. Xiques, 14 An. 428. It is but equitable and just that defendant should pay for the use of plaintiffs’ property during the time he occupies it — -the rent fixed by the contract being taken as the best proof and measure of the value of that case. The court a qua so decided. . The defendant agreed to pay as attorney’s fees five per cent on ■the whole amount of rent, “ from the beginning to the expiration of said lease,” in case of resort to law to enforce any of the rent demands or conditions of the lease. This, to say the least of it, was an onerous exaction; but it is “so nominated in the bond.” The plaintiffs must have their “ pound of flesh ” but no more. The plaintiffs, by their own demand, voluntarily put an end to this lease by the decree in this case, rendered on the twelfth day of March, 1878, which retroacts and relates back to the date of bringing this suit, to wit: fifth day of October, 1877. The date of the expiration of the leases therefore was said last named day, and the five per cent attorney’s fees must be computed on ■the whole amount of rent from the beginning to said expiration of lease. This makes the attorney’s fees $57 08, instead of $300, as heretofore fixed. We see no reason to modify our former conclusions in any other Tespect than as above indicated.

Itis therefore ordered, adjudged, and decreed that our former decree herein be set aside ; that the judgment appealed from be amended, by reducing the sum allowed plaintiffs as attorney’s fees, from $300 to ^$57 08) fifty-seven 8-100 dollars, and by allowing to defendant on his reconventional demand the sum of three hundred dollars to be credited to him as of date fifth day of October, 1877 ; that in all other respects said judgment be affirmed.'

That defendant pay costs of the court below and plaintiffs those of this appeal.


source: Caselaw Access Project

author: Spencer, J. Egan, J. DeBlanc, J. Mare,- J.

license: Public Domain

text:
    No. 7084.
    Martin Lannes et al. vs. Jean Courege et al.
    A depositary has a right to sue for and recover property fraudulently and surréptitiously taken from him.
    One having a joint interest may proceed alone to recover possession from a mere, trespasser.
    An affidavit which verifies the necessary allegations in the petition for writs of sequestration and injunction-, is sufficient to maintain the writs.
    Allegations showing right of possession in the plaintiff and wrongful possession. of defendant, and the fear of plaintiff that defendant will part from the property, are sufficient facts to warrant,a sequestration.
    The fact that defendant has sued on certain promissory notes, and filed them in co.urt as evidence of^the elaimisued.onrwillnofcprevent.the plaintiff, who has a ■ right to tlieir posseSáion, from sequestering thorn.
    The Third District Court for the parish of Orleans has no authority on the application of one party to enjoin another party from prosecuting suits brought by him in-a justice’s court against third persons, and to which the one asking for the injunction is not a party.
    The fraudulent possessor of a note may be enjoined by its legal custodian from using the note as evidence in a suit brought on it by the fraudulent possessor. One who has the right to a separate action for the recovery of property, is not obliged to intervene in a suit between other parties involving the property.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe, J.

      Sambola & Ducros for plaintiffs and appellees.

      Frank D. Chretien for defendants and appellants.
    The opinion of the court on the original hearing was delivered by Spencer, J., and on the rehearing by Marr, J.
   Spencer, J.

Plaintiffs.allege that they, together with one Jean M. Bertbin, constituted a committee on behalf of an Association of Butch-' ers, doing-business at'-'certain 'public markets in New Orleans, and formed with the view of suppressing private markets by judicial proceedings; that said committee was charged with the duty of collecting money and obtaining notes from the public butchers, for the sole purpose of defraying the expenses of the contemplated judicial proceedings ; that for said purpose they obtained from various butchers their promissory notes (a list of which is annexed to petition), payable in December, 1874, to the order of and indorsed by said Berthin, with the distinct understanding between the makers of said notes and said committee that said notes should not be> paid or used, unless all private markets were effectually and permanently closed prior to their maturity; that petitioners as such committee promised and agreed to surrender to said makers said notes, if said results were not attained ; that the effort to close the private markets failed, and that it is the duty and obligation of petitioners to return said notes to said makers; that said notes, from their dates to December, 1875, remained in the possession of said committee, and in the office and special charge of said J. M. Berthin, in New Orleans, as worthless paper. That one Jean Courege, in December, 1875, and January, 1876, obtained possession, surreptitiously, fraudulently, and without legal right or consideration, of 137 of said notes, aggregating in amount $5100. That he kept private secret possession of said notes until lately, when he entered suits in the Fourth Justice’s Court on thirty-eight of said notes against the makers thereof, alleging himself to be owner thereof, and is seeking by said suits to collect the said notes. They aver their right of possession of said 137 notes, and their duty and obligation as depositaries to restore them to the makers under the said agreement. They therefore bring this suit in the Third District Court, pray that said 137 notes- be sequestered, and restored to their possession ; and that said Courege be enjoined from disposing of any of them, and be enjoined from prosecuting said thirty-eight suits in the Fourth Justice’s Court, and that said Fourth Justice’s Court be also-prohibited and enjoined from proceeding further therein, until the rights-of plaintiffs be determined, etc.

Upon oath and bond, the writs of sequestration and injunction issued as prayed for.

Jean Courege excepted in limine as follows:

1. “ That the said petition discloses no cause or right of action in. the said plaintiffs.

2. “ That the affidavit for the injunction and sequestration therein obtained is not sufficient and not in accordance with law.

3. “ That the allegations in the said petition do not disclose sufficient grounds for an injunction and sequestration.

4. “ As to the thirty-eight notes referred to in plaintiffs’ said petition, and now pending in’suits before the.the Fourth Justice of the-Peace Court, he especially excepts to the above petition for the reasons :

1. “That the court was without authority to enjoin the plaintiff in the prosecution of these suits.

2. “ That the notes could not be sequestered in the hands of the-judge of said court, thus divesting the court of a jurisdiction of which, it was already seized.

3. “ That the right to prosecute a lawsuit, whether well founded or not, is a right guaranteed by article ten of the constitution.

4. “ That if the plaintiffs in the above suits have any interest in the said thirty-eight notes they could have joined either the plaintiff or defendants in the said suits by third opposition and intervention.”

We will notice these exceptions in their order :

First — The petition, if the facts stated are true (and for the purposes of this exception must be so considered), discloses a clear right in. plaintiffs, as depositaries, to recover the possession of property fraudulently and surreptitiously taken from their custody. C. P. 15 ; 10 An. 552 ; 10 M. 465; 4 M. 619 ; 3 L. 216 ; 4 An. 178 ; 7 An. 110 ; 2 N. S. 20 ; 1 An. 48.

The fact that Berthin, one of the committee", does not or will not join them in the demand, does not prevent the others from proceeding to protect themselves from the acts of a spoliator. One having a joint interest may proceed alone to recover possession from a mere trespasser.

Second — The affidavit verifies the facts charged in the petition, and is sufficient to maintain the writs of sequestration and injunction.

Third — -The allegations showing plaintiffs’ right of possession and '.the wrongful possession of defendant, and the fear of petitioners that ■defendant will dispose of the notes, etc., are sufficient to maintain the ¡sequestration, and the injunction, at least and certainly so far as concerns the ninety-nine notes not sued upon in the Fourth Justice’s Court.

Fourth — "We do not see how the fact that defendant had filed thirty-eight of the notes in question in suits by him brought in the Fourth ■Justice’s Court can prevent plaintiffs from asserting their rights of possession thereof and upon proper affidavit and bond sequestering -them. If defendants’ proposition be true, one who has stolen a note ■can retain possession of it by simply suing on it. The sequestration of ■these notes in the Fourth Justice’s Court in no manner interfered with -or divested the jurisdiction of that court in said suits. The notes were not in custodiam legis, in the sense contended for by defendant. The rule invoked by him is that when property is in custody of one court under its process, another court can not by its process interfere with •such custody. There is no doubt of the correctness of this proposition. But these notes were not held under process of the Fourth Justice’s Court. They were at most simply filed therein as the evidence of the .claim sued upon. 'No law required them to be so deposited, being mere ¡acts under private signature. C. P. 175. By simple leave of the court they could be at any time withdrawn by Courege. Hence their sequestration was not only legal but necessary to the preservation of plaintiffs’ rights. The law, C. P. 275, gives the right of sequestration whenever the ownership or possession of a movable is in controversy, upon the claimant.making oath to his fears of its removal, etc. As these notes were not held under process of the justice’s court, we can see no possible objection to their sequestration. Their production, if required in that court as evidence, could always be enforced by subpena duces tecum served upon the sheriff, or the plaintiff, if the latter has bonded them.

¥e agree with the judge a quo, that the plaintiffs can not enjoin the Fourth Justice’s Court from hearing causes pending between the defendant, and other persons. It would lead to infinite confusion to-allow one,court to thus arrest litigation in another court, on the demand of persons not parties in such suits in such other courts.

We do not think that section 2013 of Revised Statutes applies to a. case like this, but is intended to enable the Third District Court to exercise its appellate jurisdiction over justices of the peace in the parish of Orleans. We think, therefore, that so far as plaintiffs seek to enjoin the Fourth Justice’s Court from hearing, and the defendant from prosecuting, his suits, the court a qua properly refused the application. But if it be true, as alleged, that the defendant is a spoliator of said thirty-eight notes, and obtained their possession fraudulently and surreptitiously, and that plaintiffs are entitled to their possession, we think the defendant may well be enjoined and prohibited personally and individually from using said notes as his own or as evidence of a right in himself.

Plaintiffs are not obliged to file interventions or oppositions in said thirty-eight suits. It is not a proper case for third opposition, and nobody is obliged to intervene in a suit; for the simple reason that he who has a right of intervention has a yet more evident right to a separate action.

Defendant’s exceptions should have been overruled, except to the extent stated.

It is therefore ordered and decreed that the judgment appealed from be modified and amended so as to read as follows :

It is ordered and decreed that defendant’s exception to the sufficiency of plaintiffs’ petition, and to their demand for sequestration of the notes in controversy, be overruled. That defendant’s exception to the injunction sued out by plaintiffs be overruled, except in so far as-said injunction prohibits the Fourth Justice’s Court from hearing, and the defendant from prosecuting, said thirty-eight suits — and to that extent only said exception is sustained, and said injunction dissolved. But the right of defendant to prosecute said suits shall not authorize him to make use of said notes as evidence or otherwise, such use being within the prohibitions of the injunction as herein maintained. It is. further decreed that defendant and appellee pay costs of appeal.

Dissenting Opinions.

Egan, J.

In my opinion it is well and properly settled that a writ of sequestration will not lie. to seize-and take any property or thing at the time in custodiam legis, or on file or deposited for use in a suit in another court. The fact that it was not necessary under the law for Courege to file the notes in controversy with the justice does not alter tlie case, as whether necessary or not he did.so file them- as the basis of the several suits and they were in the lawful custody of the justice and could not be taken therefrom by the sheriff under the sequestration in this case, which would have been ineffective without so taking- them. It is true that the notes might have been ■ withdrawn by Courege with leave of the court, but not otherwise, whether filed in that or any other court. It is, however, not the practice or the law that the plaintiff who has filed a private or other writing in any court can take it from the records without leave, and so long as we recognize the jurisdiction of courts, whether justices’ or others, it would be subversive of all law and propriety to permit the process or orders of another court or its officers to disturb the lawful custody of any paper or thing in its keeping. It is not pretended that within the bounds of their authority or jurisdiction the fact that justices’ courts are not courts of record makes any difference in this respect, or that there is'any reason why they should not be respected within the scope of their jurisdiction and authority. I therefore think the sequestration was both illegal and unnecessary, and that the proper remedy was injunction operating directly upon the defendant Courege and directed to him. I do not think that the constitution or the law gives any man a right to sue on the note, or to recover the debt or property of another, who may therefore at any time on proper allegations and proof obtain and maintain an injunction from any court of competent jurisdiction to restrain the defendant from either suing, prosecuting suit upon, or in any other manner using or controlling promissory notes claimed to belong to the plaintiff in injunction, and from collecting and reducing into possession by suit or otherwise the debt evidenced by the note. This was the view taken by us in the case of Brown vs. Brown, decided .at this term, 30 A. I therefore dissent from the decree in this case maintaining the sequestration. On the other branch of the case, the injunction should be maintained as against the defendant personally, not only to the extent decreed, but to the full extent of preventing his making any use whatever of the notes in controversy or interfering with or using them in any manner and for any purpose, whether by suit or otherwise.

DeBlanc, J.

I concur in the views of Mr. Justice Egan as regards the invalidity of the sequestration resorted to by plaintiffs, and — in my opinion' — their injunction is as invalid as their sequestration, in so far as they interfere with the suits already brought in the Justice’s Court.

The relief to which plaintiffs consider that they are entitled, may be granted by, and should have been asked from the court in whose jurisdiction the aforesaid suits are pending. That jurisdiction cannot — legaily — be invaded by the process of another Court, for the manifest purpose of suspending, embarrassing or preventing the trial of an already commenced and progressing litigation.

Had plaintiffs appeared in the Justice’s Court'and there asserted ■their, right..to .the. possession-of >the 38 .nates sued-upon by-defendants, from the date of their demand not one of those notes could have been withdrawn from the files of that court without their consent. Their appearance in that jurisdiction would have secured every advantage which they could hope to gain by an order of sequestration obtained in •another Court.

The Judge who has the undenied jurisdiction of a suit on a note, cannot be ordered by another judge to suspend his proceedings, until the latter ascertain whether the holder of said note is entitled to its possession. That question should be presented to and determined by the Court first seized of jurisdiction, on application of either the sued drawer of the note, or of those from whose possession it was unlawfully taken.

I respectfully dissent from the views and decree of the majority.

On Rehearing.

Mare,- J.

If the allegations of the petition be true, the defendant, •Courege, is attempting to practice a great fraud, through the medium of ■a justice’s court. The defendant chose to put his case in the court below, on exceptions, which necessarily, pro hac vice, admitted the truth of the allegations contained in the petition.

It is urged that plaintiffs could not maintain this action because •Jean Marie Berthin was one of the committee, of which the plaintiffs, eight in number, were members. But it is distinctly charged in the .petition, that “ they, said notes, remained in the possession of said com- , mittee, your petitioners, but in the office and special charge of Berthin . * * * as worthless paper after their maturity.” And again : “ that your petitioners were the only persons entitled to the possession of said notes, and they only as a committee, and to return them to the makers thereof, which duty they now desire to perform.” These allegations, which ■can not be called in question under the exceptions taken by defendant, show a perfect and exclusive right of action in the plaintiffs to recover . possession of the notes ; and to prevent the alleged fraudulent attempt of Courege to enforce them as valid obligations- belonging to him. If the facts are not as thus charged, these distinct allegations must be put at issue by the defendant, as it is his right to do, in an answer to the merits.

If Berthin was a member of the committee, and entitled as such, equally with any one of the other members of the committee, to the possession of the notes, he could not control the other eight members. It was the committee, not one of its members, that was entitled ; and if one should refuse to join the others in a proceeding to recover the possession, he could be made a defendant if he was á necessary party. But under the allegations of the petition for the purposes of the exception, no such question would arise.

It is true that each one of the makers of the 137 notes might, when sued, defend himself; but that is no reason why the committee, entitled to the possession for the purpose of returning them to the respective-makers, should not sue to recover them for that purpose.

A district court would not be authorized, by injunction or other writ, to forbid a justice to hear and determine a case pending before him, and falling within his jurisdiction ; but there are cases in which it is competent for one court, at the instance of one not a party to, but interested in a suit pending in another court, to deal wjith the parties to that suit; and, in aid of its own jurisdiction, to forbid them, by injunction, to proceed with their suit.

There were 137 notes in the possession of Courege; and he might have brought 137 suits against the makers of those notes. It was the ' right of plaintiffs, according to the allegations of their petition, to sue him for the possession of all of them : to sequester such as were in his possession, and to enjoin him from suing on them. It is true that * plaintiffs might have intervened in every one of the suits ; but they were equally entitled to sue and assert their rights in a single and separate suit, in a competent court. Their right was an entirety, the possession of all the notes; and the proof requisite to establish their right to one of them would suffice to establish their right to all of them. It would be a great defect in our jurisprudence if a person not a party to any one of 137 suits brought in a tribunal of inferior jurisdiction, having a right to the custody and possession of the subject matter of all these 137 suits, who could not assert his right in the inferior tribunal in a single action, could not go into a court of competent jurisdiction, and assert it in a single suit; and by the appropriate conservatory process of that court obtain the remedy and relief to which he is entitled.

Our decree does not enjoin the plaintiff from prosecuting his thirty-eight suits in the justice’s court; but it does forbid him to use the notes as evidence in the suits, and for the very good reason that upon the allegations of the petition, the plaintiff in the thirty-eight suits is attempting to make an unlawful use of the notes to the prejudice of the rights of plaintiffs as asserted in their suit in the district court.

The sequestration need not take the notes out of the possession of the justice’s court. They may be sequestered and detained in that court by proper notice served by the sheriff, on the justice, or his clerk : and the justice might well be appointed sheriff’s keeper. If plaintiffs are entitled as they allege they are, to the possession of these notes for the purpose of returning them to the makers, their right would be of no avail if the plaintiff in the justice’s court might withdraw them, and part with, or conceal, or dispose of them: or if he might proceed to judgment against the makers, and enforce it by execution.

Our decree does not invade the jurisdiction of the justice: it deals with a suitor in the justice’s court, not directly in his relations toward the makers of the notes in the pending suits, but in his relations to the plaintiffs in the district court, touching the right to the possession and use of the notes, the subject matter oE the suit in the district court.

It is no infringement of art. ten of the Constitution to say to a suitor, you shall not make any use of property the possession of which you obtained unlawfully, which you hold and detain unlawfully, and which you are attempting to use unlawfully to the prejudice of the right of another who invokes the aid of a competent tribunal to preserve and to enforce that right.

A careful re-examination of this case has but served to convince us that our original decree is correct, and it is therefore affirmed.

Mr. Justice DeBlanc adheres to the opinion expressed by him on the original hearing, and dissents as he then did.


author: Spencer, J.

text:
    No. 5599.
    George W. Byrne vs. the Hibernia National Bank.
    The revocatory action can not be maintained by a creditor who not only fails to allege fraud, but who avers that his debtor parted from his property in error.
    A party can not divest the averments of his petition of their force as judicial admissions by discontinuing the suit in which the petition was filed.
    A creditor who has obtained possession of property of an insolvent debtor held in pledge by another creditor, by paying the debt due the latter, can not afterward sue to recover the money paid by him without offering to restore the pledged property.
    The matters of defense that must be specially pleaded are those set up in avoidance, or extinguishment of an obligation admitted, or proved to have once existed.
    Under the plea of the general issue, the defendant may prove any fact or circumstance which tends to show the non-existence, or falsity of the facts alleged by the plaintiff.
    A voluntary party to an executed contract who has reaped and retains the profits of it, is estopped from assailing it as fraudulent.

      A PPEAL from the Sixth District Court, parish of Orleans. J. Saucier,

      McGloin & Nixon for plaintiff and appellant.

      Thos. Gilmore & Sons for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

In the year 1872, John J. O’Brien was a large dealer in provisions in the city of New Orleans, and kept a deposit account with the Hibernia Bank. In the latter part of September of that year, by connivance of the paying teller, he overdrew Ms account by some $29,000.

The bank discovered this overdraft about the first of October, and at once demanded payment or security, O’Brien on that day executed in its favor an act of pledge of 337. casks of bacon.

In the next few days, and before O’Brien’s failure (which occurred on the eleventh of October), 164 casks of this meat had been sold by brokers under the supervision and direction of O’Brien, and the proceeds of sale collected by the bank, and applied to said indebtedness, reducing the same to about $4717 14. The bank also held a note of one Digges, indorsed or guaranteed by O’Brien, for $2525 05. As stated, O’Brien went to protest October eleventh, owing about $100,000. Among his largest creditors was plaintiff, Geo. W. Byrne.

On that day, October 11, the plaintiff, Byrne, and O’Brien called at the bank for the purpose of redeeming the property remaining in pledge In its hands. The bank furnished them a statement of O’Brien’s indebtedness on that day, which, added to the Digges note, amounted to $7242 19. Byrne, at once paid the bank that sum, and took from it an order, or transfer, for the bacon remaining — 173 casks — which he received and had sold for his own account and benefit, realizing for it several thousand dollars more than he had paid to the bank.

On twenty-ninth August, 1873, about eleven months after this transaction, Byrne brought suit against the bank to recover the amount he had paid, in this settlement, for the Digges note; alleging that it had been paid in error — in this wise: That he had entered into an agreement with O’Brien in October, 1872 (of which said bank was cognizant, and to which it became party), “wherebyfor certain considerations petitioner bound himself to pay said bank the amount due by said O’Brien as a depositor at that date for sums overdrawn from said bank.” That the bank, knowing said Digges note was not embraced within the terms of his said obligation, fraudulently added its amount to the sum he had so agreed to pay it for O’Brien’s account, and was therefore bound to refund the amount so overpaid, etc. That suit, No. 5347 of the docket of this court, was some time since decided finally against Byrne.

On sixteenth September, 1873, about eighteen days after instituting -the aboye suit, Byrne brought the suit now before us against O’Brien And the bank. He claims judgment against O’Brien for $30,662, balance due, as per statement and account annexed to the petition. In this •statement O’Brien is charged, with this sum of $7212 19 paid the bank ■as hereinbefore stated.

It is charged in substance that the bank imposed upon and deirauded O’Brien, by inducing him to believe that he owed it a large sum, when in truth he owed it nothing. That it adroitly saddled upon him” :its claims against other recreant debtors, and thus procured and induced him to execute and sign, in error, the said act of pledge of October 1, '.1872. That having thus fraudulently possessed itself of O’Brien’s prop•erty, it rushed it upon the market and thereby sacrificed it, thus making itself liable to pay all of O’Brien’s debts. The petition then igoes on to say, hypothetically, that even if O’Brien did owe the bank, the contract of pledge was illegal and fraudulent, because it conferred :& preference and had the effect of injuring the other creditors — the said O’Brien being at the time insolvent to the knowledge of the bank. It concludes with a prayer for judgment against O’Brien for $30,662 Also for judgment against the bank for same sum ; that the contract of pledge be annulled, and the bank be condemned to restore all the property received thereunder, and in default to pay plaintiff’s claim, etc.

There is nowhere in plaintiff’s petition any direct or specific charge (that O’Brien made the contract with intent or purpose to injure or ■defraud his creditors. On the contrary, the allegation is that he was •deceived and imposed upon, and made the contract in error and not in Jraucl. It is not easy to reconcile these allegations with the requirements of the Code on the subject of the revocatory action. It is of the essence of that action, that the debtor intended a wrong. True, this wrongful intent is presumed to exist, wherever it is shown that an insolvent has made a contract prejudicial to his creditors; but that pre•sumption of fraudulent intent is not so absolute that a party can not negative it by a direct admission to the contrary.

The plaintiff seems to have realized that these allegations were not supportive of, or in harmony with, the revocatory action ; for he discontinued “ all allegations and causes of action set up, except the revocatory action, and elected to prosecute said cause alone under the allegations tending to maintain such revocatory action.” But this discontinuance did not strip these averments of their character and forcé as judicial .admissions, which bind the party making them, unless alleged and •shown to have been made in error, which is not pretended here.

But there are other and graver difficulties which oppose themselves -.to plaintiff’s action.

When O’Brien went to protest on eleventh October, 1872, there seems to have commenced a general “ grab game ” among his creditors,, in which plaintiff, Byrne, played no insignificant part. Lawler got about $8000 worth of meat; Yose about forty-four casks, and Byrne all that was left, some seventy casks. Byrne did more. He entered into an agreement with O’Brien, as we have seen, in order to get hold of the 173: casks in the bank’s hands. By this agreement, he bound himself to pay up the deposit account and overdrafts of O’Brien in the bank, for which O’Brien had given the pledge of said bacon. In pursuance of this obligation he went with O’Brien to the bank, adjusted the account and paid it,, taking a transfer from the bank for the 173 casks of bacon. Having paid this debt to the bank, for which he had bound himself with and for O’Brien, by said agreement, he was legally subrogated to the bank’s-rights (C. 0. 2157, No. 3), besides holding its express order or transfer for the bacon.

Having thus obtained possession of the pledge, he enforced it by selling the property and appropriating the proceeds to his own use— realizing several thousand dollars more than he had paid out.

After having thus, subsequent to O’Brien’s failure, bound himself for “ certain considerations” to pay the amount due the bank under its-pledge, after having gone to the bank, and adjusted and paid O’Brien’ssaid debt according to his agreement, and obtained from the bank its pledge ; after having thus acquired the bank’s rights against O’Brien,, and enforced them, to his own great profit and advantage, with what show of reason can Byrne now come, without even an offer of restitution, and demand the nullity of this contract, and claim from the bank not only the money paid it under his own agreement with O’Brien, but all else that O’Brien owes him — unless the bank surrenders to him 337' casks of bacon, more than half of which Byrne himself got possession of and sold ? One occupying the position of Byrne in these transactions-must go outside of a court of justice to enforce such demands. There-is no allegation or pretense that he did not do these things with his eyes, open, and after O’Brien’s failure was “ known of all men.”

There-was no bill of exceptions taken to the introduction of the-record of the said suit No. 5347 in evidence. If there had been, we see no reason to doubt that it was admissible under the general issue. Under that plea the defendant had a right to show the falsity of plaintiff’s allegations — that no obligation had ever existed on its part to-plaintiff; that no right of action ever arose. The matters of defense-which must be specially pleaded are those which are set up in avoidance or extinguishment of an obligation admitted or proved to have-once existed. Gleises vs. Faurie, 6 L. 457 ; 9 L. 111; 5 R. 486.

The general rule is that special defenses waive the general issue. In other words, they admit the facts alleged, but set up another state of facts in avoidance.

But when a defendant contests the existence of the facts alleged by plaintiff, the general issue is the proper plea; and under it he may prove ¡any fact or circumstance which tends to show the non-existence or falsity of the fact alleged by plaintiff. Thus, in the case before us, the plaintiff ■seeks to recover of the bank, among other items, the said sum of $7242 19. The bank introduces the record 5847 to prove that so far from -the bank • ever having owed him that sum, that the plaintiff had judicially admitted that he owed it to the bank, and that he had actually paid it, so that there never was in existence for one moment any obligation or. any state óf facts creative of obligation against the bank.

We hold, therefore, that Byrne having, after O’Brien’s failure, and in ■order to secure advantage to himself, made himself party to the contract between the bank and O’Brien by agreeing to pay, and by paying the money due thereunder, thereby obtaining the bank’s rights and posses■sion of its pledge, selling the said pledge and appropriating its proceeds can not now be heard to say that said contract was fraudulent and illegal.

This case impresses us very much as that of Dwight vs. Bemiss, 16 L. 149, did our predecessors. It seems to us that the plaintiff “was endeavoring to secure some thing from the wreck, and to obtain that preference for himself, which he complains of so much in others.”

The judgment below gave plaintiff judgment against O’Brien, but rejected his demands against the bank. We think the judgment correct, .and it is affirmed with costs.


author: Manning, O. J.

text:
    No. 5797.
    V. Bacas vs. J. Hernandez et al.
    The sheriff is not authorized to receive from the purchaser of property at a judi- , cial sale the amount of the mortgage or privileged debts which rank the claim of the seizing creditor, and hence the sureties of the sheriff can not be held for the amount of such debts received and not accounted for by the sheriff.
    ^PPEAL from the Fifth District Court, parish of Orleans. Gullom, J.

      M. B. Livaudais for plaintiff and appellee.

      Bd. Bermudez and T. Wharton Collens for defendants and appellants.
   The opinion of the court was delivered by

Manning, O. J.

A writ of fieri facias having issued in the case of Macarthy v. Wiltz, in 1866 Charles Bienvenu, in the capacity of sheriff of Orleans parish, seized certain property of the defendant, and after due advertisement sold it to Mioton for twenty-seven hundred dollars. There were two mortgages on the property, both ranking the judgment of the plaintiff in execution. The first in rank, which was also a vend- or’s privilege, was that of Mrs. Bacas, the present plaintiff, and was-for $927.94. The second belonged to Mrs. Portier, and amounted toil,428.89. The property therefore brought $343.17 in excess of the amount of these two mortgages. Mioton, the purchaser, paid the-whole of his bid to the sheriff, and the sheriff did not pay any part of it-to Mrs. Bacas. She therefore took a rule upon him, or filed a third opposition in Maca-rthy’s suit, asking to be paid by preference out of the-proceeds of sale then in his hands, and there was judgment accordingly. No payment was made, and she now sues the present defendants, as sureties on the sheriff’s bond, to recover the amount of her mortgage.

The defences are numerous, and are elaborately developed. Among them are the pleas that the bond was never accepted by the proper-parties — that there were six sureties instead of two — that the bond was-void, or at best inchoate, and a mere pollicitation — that the sureties were-released by proceedings taken under an act of 1873 (Sess. acts, p. 123,) authorizing the Governor to cancel bonds, the proceedings being an application by Bienvenu to have his bond cancelled, made six years after Mrs. Bacas’ judgment against him, and more than five years after his sureties had been cited in this suit, which application was favourably considered, and the bond actually cancelled by the then acting governor.

We do not think the case of the defendants is strengthened by these defences. This cannot be said however of the second ground, i. e.. that Bienvenu, as sheriff, had no official capacity to demand and receive that portion of the price which belonged to those holding mortgages that ranked the seizing creditor, and therefore his sureties were not responsible therefor.

Whenever any property, sold by a sheriff, is subject to privileges or special mortgages in favour of other persons besides suing creditors,, the sheriff shall require from the purchaser only the surplus of price beyond the amount of the privileges or special mortgages, Code Prac.. art. 706, and the hypothecary action lies against the purchaser of such property in favour of creditors having such privileges and mortgages. Ibid. art. 709. The sheriff must give notice, before he commences the-crying, that the property is sold subject to such privileges and mortgages, and that the purchaser is required to pay in his hands only the-excess of the price, at which it shall be adjudicated, over those privileges and mortgages. Ibid. art. 679,

These provisions are very clear and unmistakeable. It is manifest-from them that the sheriff is neither required nor authorized to receive-the amount of mortgages or privileges which prime that under which he is selling. His writ commands him to make a certain sum by and out of the sale of the property. The mortgages that are certified to him exhibit the sums for which the property is bound, and which must be satisfied, before the plaintiff in execution, whose writ he holds, is entitled to anything. If the price bid is insufficient to pay these sums, there can be no adjudication. Ibid. art. 684. If, as in this case, the highest bid exceeds the antecedent liens, the adjudication is valid and the sale complete, and the property passes to the purchaser, but passes, burthened with these antecedent liens, which can be enforced by the holders of them against the property in the hands of its new owner. All this is just, and is admirably contrived to prevent injury to debtor, creditor, or purchaser, and it follows from this, that when the' sheriff takes upon himself to receive money which his writ does not authorize him to receive, his sureties are not bound for the consequences of ap act which is outside of his official duty, and beyond his official authority. And such was early and emphatically declared to be the proper construction of the law. Merchants’ Bank v. Peters, 2 Rob. 214 reaffirming Pepper v. Dunlap, 16 La. 163.

It is equally true that a purchaser cannot exonerate himself from liability by paying that which the law has expressly commanded him not to pay. He is not only permitted to retain, but he is required to retain in his hands the amount of the liens in advance of that of the seizing creditor (Cummings v. Erwin, 15 Annual 289) and the day to which the interest upon them is to be calculated for retention has been fixed. (Firemen’s Ins. Co. v. Gillingham, 1 Rob. 305.)

These being the provisions of the Code regulating the conduct of all parties in judicial sales, how has the plaintiff conformed to them? It was said in oral argument that inasmuch as the property brought sufficient to pay the privileges and mortgages, antecedent to the judgment upon which the execution issued, the i laintiff conceived that she might as well claim her money out of the bid as to provoke another sale by hypothecary process against the property in the hands of the purchaser. And so she could, but the demand should have been made of that purchaser for payment out of the sum retained by him. If he refused, she had immediate recourse against the property. She chose apparently to abandon her right against the property, and recognizing the payment to the sheriff of her portion of the price as a deposite for safe-keeping,” (for that is the language of the Rule) she abdicates the high rank which the law assigned her, and descended to that of a claimant of funds, irregularly and unlawfully deposited with an officer who had no right to receive them. Whatever rights she may have against others, it is very clear that she cannot mulct the sureties of the sheriff for her own error in proceeding against their principal to compel payment of that which the purchaser was compelled to pay her, or submit to have the property 'resold for the satisfaction of her claim. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower Court is avoided and reversed, and that there be now judgment in favour' of the defendants upon the demand of the plaintiff, and that the defendants recover of the plaintiff their costs in the lower court, and the costs of appeal.


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

text:
    No. 6885.
    Lucius Phipps vs. Mrs. Ruth Snodgrass.
    A citation addressed to the wife and “her husband,” is a sufficient citation to the husband.
    The one who pleads prescription must prove the facts necessary to sustain the plea. A plea to the jurisdiction of the court ratione. personal, must be made in limine. It is too late to file it after a judgment by default has been entered.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Breaux, Fenner & Hall for plaintiff and appellee.

      Frank W. Baker for defendant and appellant.
    The opinion of the court on the original hearing was delivered by Manning, C. J., and on the application for a rehearing by Spencer; J.
   Manning, C. J.

This suit was instituted by the holder of a promissory note, secured by mortgage, to enforce its payment against the maker. The citation is addressed to the defendant and her husband, and was served by leaving it at their domicil, by delivering it to a person above fourteen years of age there residing, they being absent. The defendant pleads that a citation addressed to her and her husband is not a citation to the husband.

We do not perceive any indefiniteness in such a citation. The insertion of the name of her husband would not make it more definite. She could have but one, and service upon him would have been sufficient. It was served upon both. Gilmore’s case, 9 Annual, 197. Code Prac. 182.

A default was entered, and on same day an exception to the jurisdiction was filed. We must assume the default was taken before the filing of the exception. The judge would not have entered the default if an exception to his jurisdiction had been made, and that exception comes too late then, since it must be pleaded in limine litis. There was never any trial of it, and it is very vague in its terms.

At this stage of the case a petition was filed to remove it to the 'Circuit Court of the United States, on the ground that the plaintiff was a resident of Missouri and the defendant of Louisiana, and an order was made for its removal. The wife signed the bond, but her husband did not, and her signature without his authorization was nothing worth. There was therefore no bond, and the condition necessary to be performed to perfect the removal was never performed. No attempt was made to remove it. The suit remained in the State court, and it is of no consequence whether or not the clerk of the Circuit Court had authority to certify that the case had not been filed in his court. The fact was as he certified.

Notice was given the defendants that the default would be confirmed, and proof being submitted, it was confirmed, and judgment rendered in favour of the plaintiff for the amount of his note and interest, with recognition of his mortgage, and an order for its enforcement. No appearance was made by the defendants. They now urge that the mortgage is prescribed. If it is, it does not so appear, and would not matter if it did, so far as the mortgagor is concerned. The record does not shew when the mortgage was inscribed, and we cannot assume as a fact that which the defendants have neither attempted to prove, nor have proven.

The appeal is suspensive, and the plaintiff has prayed for damages, because it is frivolous. He is entitled to them.

It is ordered, adjudged, and decreed that the judgment is affirmed, and that the plaintiff recover of the defendants ten per centum upon the amount of the judgment of the lower court as damages for a frivolous appeal, and all costs.

On Application eor Rehearing.

Spencer, J.

There is but one ground we deem necessary to notice. We held in this case that it was too late, after judgment by default or answer, to plead to the jurisdiction of the court ratione persones, the party being sued in New Orleans as an alleged resident of said city. We are aware that our immediate predecessors went, in effect, to the point of holding that a plea to the jurisdiction ratione personae could be made at any time before judgment, and was good cause to annul after final judgment in the cause! See Richardson vs. Hunter, 23 A. 255 ; Alter vs. Pickett, 24 A. 515 ; 21 A. 258 and 551.

In our opinion such a doctrine is destructive of all certainty in judicial proceedings, subversive of elementary principles, and directly in conflict with numerous articles of the Code of Practice.

First. It is destructive of all certainty in judicial proceedings. A defendant is cited before a court having competency to try the subject matter, i. e., jurisdiction ratione materia. He appears, makes no exception to the jurisdiction, but answers to the merits, and contests vigorously the plaintiff’s rights. Judgment is rendered against him below, and on appeal. Under the doctrine we combat he can at once turn about and sue to annul that judgment on the ground that he did not-reside in the parish where he was sued. How would a suitor ever know when he had obtained a binding judgment against his debtor?

Second. The doctrine is subversive of elementary principles com-r mon to the laws of all civilized countries. It is elementary and can not be denied that the judgment terminates all questions which were or which could have been urged in defense. Yet, according to the doctrine of our opponents, it does not conclude the defendant from pleading to the jurisdiction of the court ratione personal, although the Code says that-exception or defense must be pleaded in limine, and before answer. Under this theory what becomes of the provisions of our law on the subject of res adjudicata? When and where will there be an end of lawsuits ?

Third. It is directly in conflict with arts. 93, 333, 334, 335, and 336-of the Code of Practice. The first of these articles provides: “ If one be cited before a judge whose jurisdiction does not extend to the place of his domicile or of his usual residence, but who is competent to decide the case brought before him,, and he plead to the merits instead of declining the jurisdiction, the judgment given shall be valid, except the defendant be a. minor.” The other articles mentioned provide in effect that this exception to the jurisdiction ratione personce must be pleaded in limine and before answer.

Have these plain and unambiguous articles of the Code of Practice been expunged from it ? Are they no longer parts of the law of procedure in this State ? We are told that they have been abrogated by article 162 of that Code ; that article provides : “ It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his. domicile or residence, and shall not be permitted to elect any other domicile or residence for the purpose of being sued, but this ruléis subject,to' those exceptions expressly provided by law.”

Is this article repugnant to articles 93, and 333, 334, 335, and 336 of the Code ? Is there no interpretation that will harmonize them ? If there is, elementary principles require us to adopt that interpretation, for they are all articles, and component parts of one statute.

Article 162 declares, in its first paragraph, that one must, as a general rule, be sued at his domicile ; but article 93 declares that if one be actually sued elsewhere, and plead to the merits, without declining the jurisdiction, he shall be bound by the judgment. Art. 162 declares that, there are exceptions to its rule. Art. 93 is one of those exceptions; and presents a wholly different case from that of last clause of art. 162,, which provides that no one shall be permitted to elect any other domicile for the purpose of being sued. Is it not manifest that this clause relates-to causes where parties by agreement and with a view to a future suit■ designate a place to bring it ? Art. 98 relates to a case where a party has already been sued. The last part of art. 162 relates to cases where the parties elect domiciles for the purpose of being sued in the future.. The “ election of a domicile for the purpose of being sued ” pre-supposes that the party has not yet been sued, and implies the selection and designation of a place of domicile for the purposes of a prospective suit. It is this last which the law forbids, and which is a wholly different case from that of art. 93,' which provides for a suit actually pending, and where-there has been no previous election, selection, or designation of a domicile for the purpose of bringing it.

The evils intended to be prevented by this provision of art. 162 are-well known. It was to prevent hard-pressed debtors from entering into contracts whereby they waived their domiciles and elected in lieu thereof the counting-rooms of their merchants in New Orleans, designating-some clerk of their creditor as agent, to receive service of legal process, and thereby in many instances being sold out of house and home before-they knew suit had been brought. See Marqueze vs. LeBlanc, 29 A. 194, and School Board vs. Weber, 30 A. 595, concurring opinion of Justice-Spencer, where this question is treated more at length.

The rehearing is refused.


author: DeBlanc, J.

text:
    No. 6342.
    The State vs. J. J. Daniel.
    Before this court can pass oil the question whether the lower judge rightfully refused to allow the change of venue asked for by a prisoner on trial for murder,, the evidence on which the application for a change of venue was made must be-brought before it in a bill of exceptions.
    This court will only reverse the ruling of the lower court on the question of a. change of venue when the evidence brought up in a bill of exceptions shows indisputably that the judge below has misapplied or arbitrarily violated the law-
    The clerical error of writing the word “ parish,” instead of the name of the parish in which the killing was done, in the copy of the indictment served on the accused, when the caption of the copy gives the name of the parish,tis no ground, for continuance.
    The first section of act No. 45 of 1876, fixing the terms of the District Court for the-Second Judicial District, is constitutional.
    Where no fraud or wrong is shown, no objection of irregularity as to the drawing-of the venire for a certain term of court will be sustained, if made after the first-day of the term.

      iSinee the passage of the act of 1873, (page 160, sections 2 and 15). the members of a police jury may be drawn as talesmen in criminal trials.
    Dying declarations are admissible, whether made to an officer or private person, and whether verbal or written.
    Declarations made under a belief of impending death are dying declarations, although the wounded man making them did not die until several days thereafter.
    The fact that the accused offered no evidence on his trial does not give to his counsel the right to the closing argument. ,
    The accused may be tried on a second indictment for murder when the first indictment was invalid.
    )In criminal cases no foreman need be appointed to the jury, and the verdict of the . jury may be delivered orally and in open court. ' ■
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      A, G. Brice, District Attorney, and H. N. Ogden, Attorney General, ■for the State.

      B. King Gutter for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

The charge against defendant is that — on or about the -21st of December, 1873 — he killed and murdered one Joseph L. Cocke, in the parish of Jefferson. He was twice tried for this alleged crime, the first time on the 14th of January 1875, the second time on the 13th of April 1876. On each trial, the verdict against him was: “Guilty, without capital punishment.”

He was twice sentenced to imprisonment at hard labor for life. From the decree based on the first verdict, he appealed, and was granted •a new trial on the ground that some of the jurors by whom he had been indicted and tried were drawn from the Seventh District of the city of New Orleans, which had been taken from and had, then, ceased to be a portion of the territory of the parish of Jefferson.

He has also appealed from the decree based on the last verdict, ■and — to obtain its reversal — relies on many grounds, some of which are discussed at length and others submitted without discussion. The first in order is : that — on the trial of the prisoner’s application for a change of venue — the Judge refused to have the witnesses’ testimony taken down in writing. As to this refusal, the bill of exception merely recites that “ defendant introduced nine witnesses to prove the allegations contained in his application* that they were received, sworn and did testify.” Not even the substance of what they testified to is given or alluded to in the bill, at the foot of which the judge has appended the statement •that “ on the motion to change the venue, there was no exception to his ruling.”

It is manifest that such a motion is addressed to exclusively the Judge, and that he alone can and must pass on the sufficiency or insufficiency of the facts alleged and testified to: but, in criminal cases, to-convey any proper and legal evidence from the lower to the higher jurisdiction, there is one, only one vehicle, and that is the bill of exception. If that taken by the prisoner’s counsel, had reached us with a statement certified to by the judge, that — on the hearing of the application for a change of venue — nine credible and uncontradicted witnesses had been examined, and that every one of the nine had sworn that, by reason of prejudice existing in the public mind, the accused could not obtain an impartial trial in the parish of Jefferson, he would have presented a question of law resting on admitted facts, and that, question we would have been bound to consider and decide.

We believe — as urged by defendant’s counsel — that, in regard to. such an application, the discretion of the judge is not unlimited; that, when the prejudice does .exist, when its existence is proven, the accused has an absolute right to a change of venue, and that — from an improper-denial of that right — he may appeal to this Court: but — to obtain it. here — the bill of exception must show, by the recital of undisputed facts — that the judge has undoubtedly misapplied, or arbitrarily violated the law. Otherwise, our jurisdiction does not attach to the matter* nor to any of its branches.

Constitution of 1868, art. 74 — 20 A. 36921 A. 290,473 — 22 A. 38,468 — 23 A. 148, 525 — 26 A. 543.

Driven from that well defended, but untenable position, defendant’s, counsel renews his attacks against, and assails the decree from nine-other, and as untenable positions.

I.

On the 9th of March, 1876, this case was called for trial: the accused answered that no correct copy of the indictment had been served on him, and — for that reason — moved for a continuance. In support of his motion, he presented to the court the copy which he had received from the sheriff: instead of the word Jefferson, the word parish is therein written and repeated; it reads: “ the grand jurors of the State of Louisiana, duly empanelled and sworn for the parish of “parish.”' This objection was properly overruled: in the margin of the copy of indictment served on and introduced by defendant, the caption is as follows: “Second district court, parish of Jefferson, State of Louisana.”' The clerical error alluded to could — in no way — prejudice the defence, and — were it otherwise — the law now expressly provides “ that it shall not be necessary to state any venue in the body of the indictment, but the State, parish, or other jurisdiction named in the margin thereof, shall be taken to be the venue for all the facts stated in the body of such indictment, etc.” Besides, the record shows that — on account of the absence of the prisoner’s witnesses — the trial was postponed until the 8th of April, 1876, and that — in the mean time — another and correct •■copy was ordered to be, and was served upon him. In fact as in law, -this first exception has no foundation.

Rev. Statutes, sect. 1062 — 8 R. R. 591 — 15 A. 495.

II.

The objection that the honorable Don A. Pardee — the presiding .judge — was a resident of the Seventh District of the city of New Orleans, and not — as prescribed by the constitution — a resident of the ■ district in which he exercised his functions, is not supported by the evidence. We have ourselves decided that the Seventh District of the •city is embraced within the territorial limits of the Second Judicial District. State vs. Williams, 29 A. 779.

III.

On the 12th of April, 1876, the prisoner was brought to the bar of the court to stand his trial, and — for two reasons — protested against the declared intention to try him:

1. Because Act No. 45 of the Legislature, under and by virtue of •which the court-was then being held, was unconstitutional and void.

2. Because, in drawing the jury for that term, none of the formalities prescribed by Act No. 94 of 1873, had been complied with.

The title of the statute of 1876, is partly in these words; “ An act •to define and extend the limits of the Second Judicial District; to fix the terms of the court therein,” and — by the first section of said act— the last-mentioned object of its passage was carried out and those terms fixed. Whatever may be the constitutional value of the other -sections, the first one is certainly constitutional.

As to the pretended irregularity in the drawing of the jury, the fudge’s statement is that no evidence was offered by defendant to support that branch of his exception. It does not appear that he did, but he now refers to the list of jurors served upon him, and that list shows •that said jurors were drawn on the third of April for the term which commenced on that day, but that they were to be called only from the tenth of said month. The jury should have been drawn not less than ■thirty, nor more than sixty days, before the commencement of the term; 'but the very law relied upon by defendant expressly declares “ that all objections to the manner of drawing juries, or to any other defect or ■irregularity that can be pleaded against any array or venire, must be urged on the first day of the term, or all such objections shall be con•sidered as waived, and cannot afterward be urged.” In this case, there is no charge that any fraud was practiced or great wrong committed, •and the objection was raised nine days after the commencement of the term, two days after that on which the jurors had been summoned to .appear and to serve as .such. It was then too late.

Act of 1873, p. 169, sect. 12.

IY.

John Pierce, summoned as a talesman, claimed that — as a member of the police jury of the parish of Jefferson, he was exempt from jury ■duty. The court decided that he was not, and to its ruling on this point the accused excepted. We are referred by his counsel to section 2126 ■of the Revised Statutes, under which the exemption was claimed. That .section, in this respect, was in conflict with, and was repealed by the act of 1873. The judge correctly held that — at the date of the trial — that privilege no longer existed. Act of 1873, p. 166, sect. 2 and 15.

Y.

To the admission of the declaration made by the deceased, after he ihad been mortally wounded, the accused excepted on the grounds :

1. That it was not made to a sworn officer, and not reduced to writing.

2. That, as the deceased lived live days thereafter, his statement ■can not be considered as a dying declaration.

Whether made to a private individual or to a sworn officer, whether reduced to writing or not, such a declaration is admissible, and should ever be received to assist judges and juries in discovering how, where, when, why and by whom the deceased was killed. It was eminently right to attach an important value to the declaration of one who feels that he is near to his grave, almost in presence of his God.

It matters little that, after making his declaration, the wounded party survived several days. Howsoever long he may have survived, was the reported declaration made under the belief of approaching dissolution, under a sense of impending death, when the heart is justly presumed to be free from anger, hatred and falsehood? That is the ■only test, one which involves a question of fact.

5th Allen 495 — 11 Fred. 513 — 26 Gratt. 963 — 8 Smed. & Marsh 401— Archibold (8th ed.) p. 431, No. 1 — Green’s Com. Reps. 490 — 11 Ohio 42435 Cal. 4920 Ark. 3626 Mich. 11245 Vt. 30832 Miss. 4338 Blackf. 101 — 6 Parker 11 — Wharton Am. Cr. Law 669, 670, 673 — 8 A. 51410 A. 13112 A. 27413 A. 4523 A. 5588 How. 665.

The deceased’s declaration is embodied in the bill of exception, and ■ defendant’s counsel insists that it proves absolutely nothing, or — at most — that defendant was absolutely crazy. What is it ? Shortly after 'he had been wounded, the deceased said : “I am dying.” Be quiet, he was told, and you will get well. He repeated: “ I am dying, I will not get well.” He was asked: what brought on the trouble, and did not answer. The witness then remarked: Daniel would not have done this without cause ; the deceased replied : Daniel got mad because I would not go with him to see about the wood, took his knife and stabbed me, that is all.”

This proves that there are monsters in this world, and that, against their imagined insanity, society should be protected.

VI.

On the part of defendant, no evidence was offered, and — on that account — his counsel claimed the right to close the argument to the j ury. The right thus claimed has invariably been denied since the decision of this court in “ State against Millican,” reported in the 15th A. p. 557— Archibold, vol 1, (8th ed.) p. 551 — 1 Gratt. 557 — 10 Ohio, N. S. 598 — 48-Mo. 55.

These are the only points noticed and discussed in the brief submitted by defendant’s counsel. Those unnoticed in the brief and urged in. the motion to quash the indictment, are : ' .

VII.

That the jury should have been drawn from the parish of Jefferson, as it was prior to the passage of acts 71 of 1874 and 45 of 1876, and when it embraced what is now known as the Seventh District of the city of New Orleans. On his first trial, the accused excepted to the venire, because the jurors had been partly drawn from said district, and our-predecessors considering this as an error prejudicial to him, did, on that very account and at his own request, grant him anew trial. Though he might not have been concluded by the course which he then pursued, and as to this we express no opinion, he waived the presumed privilege by not asserting it on the first day of the term.

28 A. 38.

VIII.

That he should have been tried on the first indictment found against him, and could not have been — as he was — re-indicted for the same offence. The first indictment was — at least inferentially — declared by this court irregular and invalid, and the accused was properly re-indicted.

IX.

In the motion for a new trial, two of the grounds relied upon are : that no foreman was appointed to the jury by whom the prisoner was-tried — that their verdict was orally rendered, and ascertained by asking them what their verdict was. In criminal cases the law does not require the appointment of a foreman, and it is sufficient that the verdict be delivered orally and in open court. This was done.

8 R. R. 513 and 518.

"We have examined — with the care and attention due to this important cause — the several and exhaustive defences suggested by the remarkable zeal of the prisoner’s counsel. Those defences, though as full and as subtile as they could have been made, can not prevail against the law.

There is no error in the judgment appealed from, and that judgment is affirmed.


author: Manning, C. J.

text:
    No. 7062.
    Jackson & Manson vs. H. M. Hoffman et al.
    "Where the parties to a suit in order to avoid further litigation agree to submit the adjustment of their differences to arbitrators, and the agreement to submit is couched in such terms as makes the extent of the arbitrators’ jurisdiction a matter of doubt, the agreement will be construed by the light of the pleadings in the suit which was discontinued by the agreement, and all questions put at issue by those pleadings will fall within the powers of the arbitrators to decide.
    ”JThe party in whose favor arbitrators have rendered their award may sue the debtor for the recovery of the award, or may exact from him the penalty stipulated for the non-performance of the award, but he can not demand both the award and the penalty, unless the penalty has been stipulated for mere delay.
    j^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      Thos. Gilmore & Sons for plaintiffs and appellees.

      J. L. Tissot and Hudson & Bearn for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

This suit is for the enforcement of an award made .under an arbitration.

Jackson & Manson instituted suit in 1875 against John Eaymond and the defendant Hoffman to recover seven hundred and fifty five dollars for salt, which is alleged to have been sold to them, and “ used in the ■course of their business and on a certain lot of hides especially, now on board the ship Matura.” The petition also alleges that these two ■defendants have been doing business as commercial partners, buying and shipping hides, and judgment is prayed in solido against them. This suit was in the Fourth Court of this City, and several other parties bad brought suits against the same defendants in that Court for the value of hides. Hoffman proposed to submit his liability in these suits •to arbitration, which was agreed to on the part of the several claimants. Articles of submission were accordingly prepared and signed, -and the sum necessary to pay the claims was deposited with E. M. Hudson Esq. Attachments had been taken out, from the Fourth Court, ■and the proceedings there were discontinued when the agreement for arbitration was made.

The articles of submission recite, that whereas certain suits have been instituted in the Fourth Court by attachment against Hugo M. Hoffman and John Eaymond for the sums respectively claimed by the plaintiffs therein (and the names are set forth, and among them, Jackson & Manson), and whereas it is the desire of all parties, to determine -the liability of Hoffman to these creditors growing out of the alleged partnership between him and Eaymond, they agree to submit to arbitration the question whether Hoffman is indebted to these creditors, or any of them, by reason of any partnership existing between him and Raymond, in consequence of any transactions between them in dealing-in hides. It was further agreed that those who had brought suits-against Hoffman should discontinue them, and double the amount of each plaintiff’s claim was stipulated to be paid by either party cast in the award as a penalty for not executing it. This submission was signed May 18, 1875.

On the 31st of same month Messieurs Gilmore & Sons, attorneys-of Jackson & Manson, addressed a letter to Messieurs Hudson & Fearn,. attorneys of Hoffman, setting forth the substance of their demand against Hoffman, and adding ; — “ The articles of submission prepared by you appear to submit the question whether Hugo M, Hoffman is indebted to us by reason of a'ny partnership existing between him and Raymond, in consequence of any transaction between them in dealing in hides since March 1875. Inasmuch as we (trusting to your accuracy) signed the paper without examination, and as doubts may arise as to the extent of the submission, we wish it understood that the whole case as far as Jackson & Manson are concerned is embraced within its provisions, and is before the arbitrators. Desiring to hear from you on this subject, we are etc.”

On the same day the attorneys of Hoffman replied; “ we understand the submission to arbitration to include the claim of Jackson &- Manson against H. M. Hoffman as set forth in their petition filed in the Fourth District court.”

The two arbitrators failed to agree, and an umpire decided that nocopartnership existed between Hoffman and Raymond for the transaction of a general business in hides, and that the claimants for the value-of hides sold to Raymond had no recourse against Hoffman, but that-Jackson & Manson’s claim for salt was good against Hoffman, because-it was proved to have been used on the hides in the ship, and was to be-paid for by Hoffman.

Hoffman refused to pay the sum awarded on the ground that the-umpire had gone beyond the terms of the submission, which confined him to the consideration of the sole question, whether a commercial partnership existed between Raymond and Hoffman, and having decided that none existed, his power and authority were at an end.

We do not think so. The articles of submission must be read by the light of the antecedent occurrences that gave rise to the arbitration. Several suits were in progress in the Fourth court against Hoffman. Jackson & Manson’s suit was for the value of salt used on hides-already on shipboard. All the others were for the value of the hides. Attachments were sued out by all the claimants. Hoffman proposed an arbitration. It was accepted, and one of the stipulations in it is that-the suits shall be discontinued. They were discontinued — the attachments Were removed — and the ship left with her cargo. Manifestly the arbitration was to take the place of the suits. The deposit of money was to take the place of the property attached.' The questions submitted for arbitration were the claims set up in the suits, from whatever cause arising. The counsel on both sides so understood it. A letter of inquiry, occasioned by the peculiar phraseology of the submission, and written for the express purpose of avoiding any dispute about the matters included in it, was satisfactorily answered by the announcement that the submission did include all the matters included in the suit.

Hoffman now insists that he is bound only by the articles, which he signed, and not by his counsel’s letter interpreting them. To which we answer, that we interpret the articles by the suit which was displaced in consequence of the submission. He procured the dismissal of the suit and its attendant process of attachment, and got his property beyond reach, and he cannot be heard now, when he claims that the umpire assumed to decide what was not submitted to him. The umpire decided what the Fourth Court would have had to decide, if the suit had gone on. The issues that were before that court were also before the arbitrators. The object of the arbitration was the determination of those issues.

The plaintiff has sued, not alone to enforce the award, but also to recover the penalty, and the defendant has even claimed the penalty in reconvention. The plaintiff’s counsel has not even touched this point in his brief, and as it is by far the most important one in his case, would seem to have waived it, or not to rely on it. That a party can recover both the amount of an award, and the penalty for non-compliance with it, although the latter was not stipulated for mere delay, was held to be a correct interpretation of our Code in Hunt v. Zunts, 28 Annual, 500. Our examination of the provisions of the Code, has led us to a.different conclusion.

The creditor can sue for the execution of the principal obligation, or he may exact from the debtor the penalty stipulated, but he cannot demand both, unless the penalty has been stipulated for mere delay. Civil Code, arts. 2120 — 1. new nos. 2124 — 5. Another article states that it is usual to undergo a penalty of a certain sum of money in the submission, which the person who shall contravene the award, or bring appeal therefrom, shall be bound to pay to the other who is willing to abide by it. Art. 3073 new no. 3106. But this does not countenance the idea that because the party who abides by the award can sue for the penalty, he shall also recover the sum awarded, and when read along with the two articles first cited, the recovery of both is expressly prohibited. The mention of a single case where both can be recovered, i. e. when the penalty is for mere delay, excludes the construction that such recovery is permitted in any other. Inclusio unius est exclusio alterius.

“This penalty is stipulated with the intention of indemnifying the creditor for the non-performance of the principal obligation ; it is consequently compensatory of the damages which he suffers from such non-performance. Hence it follows, that he ought in this case to elect, either to claim the execution of the principal obligation, or the penalty; that he ought to be satisfied with one of them, and that he cannot exact both.” 1 Pothier Obligations, 281.

The judgment of the lower court was for the amount of the award. The plaintiff asks us to amend it by giving him j udgment for the penalty in addition thereto. We do not think he is entitled to that. He has not abandoned his claim on the principal obligation, and elected to sue for the penalty. He can recover either the one or the other, but not both.

Judgment affirmed.

Rehearing refused.