author: Poché, J.

text:
    No. 1079.
    The State of Louisiana vs. James Munston.
    Admissions and confessions may bo implied from the acquiescence of the defendant in the statements of others made in his presence, when the circumstances are such as afford him an opportunity to act or speak, and would naturally call for some action or reply from a person similarly situated; hence, in this case, where it is not shown that the accused was in actual custody, when accused of the commission of a crime, the following charge is not onl^ correct, but extremely liberal to the accused: “ standing silent when accused out ol' court is not presumed as a confession of guilt, but remaining silent when accused of the commission of a crime is a circumstance which, like others, must be considered and weighed by the jury.”
    An indictment framed in compliance with the provisions of Section 1048, Revised Statutes, need not state the means by which death was inflicted, and need not comply with the common law forms of indictments. State vs. Bartley, 34 An. 147; State vs. Granville, 34 An. 1088, reaffirmed.
    APPEAL from the Fifth District Court, Parish of Ouachita. IiioJiardson, J.

      F. Q. Hudson, District Attorney, for the State, Appellee.

      J. H. Dinhgrave for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a conviction of manslaughter, the defendant presents to our consideration two bills of exception and a motion in arrest of judgment.

1. At the request of his counsel, the Judge charged the jury as follows : standing silent when accused out of court is not presumed as a confession of guilt,” and added that remaining silent when accused of the commission of a crime was a circumstance which, like others, they might consider and weigh.”

The complaint is, that the qualification of the charge, as suggested by the defendant, virtually destroyed all the effect of the instruction, and was injurious to Mm.

The accused did not object to the admission of the testimony on this point, and he cannot complain that the Judge should instruct the jury to weigh and consider the evidence thus admitted. All evidence when introduced must be considered by the jury. The established rule in criminal jurisprudence on this kind of evidence is, that “admissions and confessions may be implied from the acquiescence of the defendant in the statement of others, made in his presence, when the circumstances are such as to afford him an opportunity to act or to speak, and would naturally call for some action or reply from a person similarily situated.” Waterman’s U. S. Crim. Digest, Sections 131, 132, 133, 134, 135,13?.

The denial of a charge which may be injurious to one is the first prompting of the human heart, even when the charge is true; hence, Peter himself did not hesitate to deny his master when accused by the servant to be one of them. The rule has the sanction of unvarying-human experience, and is uniformly applied by the courts with the only restriction, that an accused in actual custody is not supposed to be surrounded by circumstances such as to afford him an opportunity' to act or to speak. 1

Such were the circumstances in which we found the accused, in the case of State vs. Diskin, 34 An. 919, and hence, we there held that he was not concluded by his silence when charged with the commission of the crime of murder.

The great reliance which the defendant places on the ruling of that case cannot avail him, for he does not even pretend that when accused he was in custody, and we infer from the charge which he asked that he was not.

In support of his position counsel for the accused quotes the following sentence from our opinion in the Diskin case: “he has the undoubted right to keep silence as to the crime with which he is charged, and is not called upon to reply to or contradict such statements.” Taken as an isolated proposition that language would seem to favor counsel’s contention, but its effect in that direction is completely destroyed by the preceding sentence, which counsel accidentally omitted to quote, and which reads as follows: “ mere silence, while a party is hold in custody under a criminal charge, affords no inference whatever of acquiescence in statements of others made in his presence.” We think that the charge as given by the Judge was extremely liberal to the accused, and that it effectually silences his complaint.

2. Tlie second charge asked by the accused was : “ that if the jury believe, from the facts before them, that anyone else than accused could have committed the deed, they will acquit.” In lieu of which the Judge gave the following charge : “ tpe jury must be satisfied from the testimony and circumstances developed in the case that the deceased came to his death from the violence and injuries inflicted upon him by the accused, and they should be satisfied of those facts beyond any reasonable doubt; that if they entertained after consideration a reasonable doubt as to the guilt of the accused, they should acquit him.”

The charge suggested by defendant is sanctioned by neither law nor authority, while that of the Judge substantially embraces the sound rule of criminal practice, consecrated by an unbroken line of decisions in England, in our sister States and in our own jurisprudence.

The charge must be taken asa whole, and when thus construed, it is apparent that the instruction is not amenable to the criticism to which i,t is subjected by defendant’s counsel. It does not in our minds justify the complaint, that it led the jury to believe that, in the opinion of the Judge, violence and injuries had been shown to have been inflicted on the deceased by the accused. Such a construction can only result from the laudable zeal of counsel whose wish is father to the thought.” Hence, we conclude that the bill has no force.

. 3. The complaint incorporated in the motion in arrest is levelled at the form of the indictment, because it does not detail the means by which death was inflicted. It charges that the accused “ with force and arms in and upon one William Jones, a person in the peace of the State of Louisiana, then and there being, wilfully and feloniously did make an assault, and him the said William Jones, he the said James Munston did then and there wilfully and feloniously kill and slay,” etc., and is in strict and literal compliance with the form prescribed by Section 1048 of our Revised Statutes. The common law authorities quoted by defendant’s counsel have no possible application as a test for the form of pleadings, which comply with our own legislation. This isnolonger an open question, it was forever set at rest by the decisions in the cases of State vs. Bartley, 34 An. 147, and State vs. Granville, 34 An. 1088.

Our conclusion is, that the defendant has had a fair and impartial trial, and that his complaints are groundless.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1096.
    Mrs. Artemise Coats vs. J. M. Roberts.
    'When a minor is lawfully summoned by a sheriff to serve as a member of &-posse comitatus to aid in the arrest of an escaped convict and, while so engaged, negligently and with legal fault shoots another member of the same pom by mistake for the convict, the parent of the minor with whom he resides cannot be held responsible for the damages occasioned thereby.
    The law obliged the minor, being of proper years, to serve on the posse, and suspended the paternal authority, and subjected him to the exclusive authority of its officer, and pater, nal responsibility being the offspring of the paternal authority, the legal interruption of the latter operated a like interruption of the former.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bichardson, J.

      Boatner <& Boatner for Plaintiff and Appellant.

      Kobt. Bay for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The petition discloses the facts that the son of plaintiff and the son of defendant were summoned by the sheriff to serve as members of a posse comitatus to assist in arresting an escaped convict, and while acting in that capacity defendant’s son, a minor, shot and mortally wounded the son of plaintiff, mistaking, or claiming to have mistaken, him for the convict. It is averred that the sheriff had warned the members of the posse not to shoot at the convict unless he refused to surrender when ordered, and that care and caution were necessary for the safety of the other members of the posse; and it is charged, that even if the shooting was done under mistake, it was nevertheless reckless and wanton, because done without any hail or order to surrender.

Plaintiff’s son having died from the wound, she brings this action to recover the damages which had been suffered by him prior to his death.

Defendant filed an exception of no cause of action, which was sustained.

It being alleged in the petition that the son of the defendant was a member of the posse comitatus, and no contrary averment being made, we are justified in assuming that he was lawfully a member thereof. The mere fact of his minority does not of itself exclude this idea. Section 3544, Eev. Statutes, gives the sheriff power to command the services of every able bodied inhabitant ” to serve on the posse in proper cases, and requires obedience to such command, and inflicts penalties for refusal to obey. The term and the proceeding being taken from the common law, we may look to that system for a general notion of the nature and extent of the power. We there find that no persons are exempted from the duty of this service, on the ground of age merely, except minors under the age of fifteen years. Yiuiug’s Abridgt., Sheriff B.

Therefore, the petition sufficiently discloses that, at the time of the act complained of, defendant’s son was under the lawful and exclusive authority and control of the sheriff, placed there, not by the act or will of his parent, but by the power of the law, to which the parent had no means or right of resistance.

' The Article 2318 of our Civil Code confines the responsibility of the parents, for the damage occasioned by their minors or unemancipated children, to the cases where the latter are “residing with them or placed by them under the care of other persons.” These terms,seem, of themselves, pregnant with the idea that in a case where the minor is placed under the care and control of other persons, not only without the consent of the parent, but by an authority which he has neither the power nor right to resist, the responsibility of the latter should cease.

Paternal responsibility is the consequence and offspring of the paternal authority. Whenever the law terminates or interrupts the latter, the former is, at the same time, terminated or interrupted.

In France, the minor above the age of eighteen years is permitted voluntarily to enroll in the army against the will of his parents. 2 Toullier, No. 1048.-

With us he is, after the same age, subject to militia duty. Acts of 1878, p. 268.

Would it be claimed that the parental responsibility would continue while the minor was thus engaged in military service, and subject to an authority entirely exclusive of his own %

The fact that, in the case at bar, the suspension of the paternal authority did not last long enough to disturb the residence of the minor with his father, cannot affect the case. Such residence is only important in the eye of the law, as affording the opportunity of exercising the paternal authority, and while such authority is lawfully suspended, it is of no more consequence than would be the like residence of an emancipated or major child. In this case, it is apparent thatthe law took the minor from the control and authority of the parent, and placed him under the exclusive control of its officer and in a situation which exposed him to the risk of committing the fault which happened. Why should the father be held responsible 1 We are not called upon to solve the problem propounded by plaintiff’s counsel as to who is responsible for the damage occasioned by this unlawful act. Our duty is discharged when we decide the issue presented in the case. Nor do the objectionable consequences anticipated by him flow logically from our decision, which merely holds that when the law, ex, propria vigore, destroys or suspends the paternal authority over the minor, it, at the same time, destroys or suspends the paternal responsibility.

Judgment affirmed.


text:
    No. 1088.
    F. B. Ludeling vs. J. E. McGuire, Sheriff, et al.
    A tax title, regular in form, duly recorded, and accompanied by possession, cannot be attacked collaterally or disregarded by direct seizure of the property Iield thereunder, in execution of judgments or mortgages against a former owner; at least, unless absolute nullity of the tax title is patent on the face of the deed.
    !8fo such nullity being apparent on the face of the plaintiff’s deed, his injunction herein, restraining the seizure and sale of the property by a creditor of a former owner, was properly perpetuated.
    APPEAL from the Fifth District Court, Parish of Ouachita. Biehardson, J.
    J". T. Ludeling for Plaintiff and Appellee.

      11. G-. Gobi) for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, alleging ownership by tax title, enjoins the seizure and sale of the property in execution of a judicial mortgage resting on the property in the hands of a former owner.

Plaintiff exhibits the deed of the tax collector, duly recorded, and accompanied by actual possession prior to the seizure.

If his title is valid, his property is not liable to the seizure.

By constitutional provision in this State, existing since 1868, tax titles are prima facie valid. Const. 1868, Art. 118; 1879, Art. 210.

The jurisprudence of the State is perfectly settled that such titles cannot be attacked collaterally, and that the property conveyed by them cannot be seized by the creditor of a former owner, until the tax title has been annulled by direct action. Coco vs. Thieneman, 25 An. 237; Lannes vs. Bank, 29 An. 115; Jury vs. Allison, 30 An. 1235; Renshaw vs. Imboden, 31 An. 662; Hickman vs. Dawson, 33 An. 441.

An exception to this rule is recognized in the two last authorities, in the case where the absolute nullity of the title is patent on the face of the deed.

It is clear that whatever defense may be made by defendant herein must appear on the face of plaintiff’s'title, aud that the Judge a quo was clearly right in excluding all extraneous evidence offered to impeach said title.

We shall confine our attention to the nullities charged to be patent.

1. It is said that it appears from the deed that the sale was made under Act 107 of 1880, for taxes of 1878; that Act 107 applies only to sales for taxes due prior to January 1st, 1879; that the taxes of 1878 were not due till February 1st, 1879; and that, therefore, the sale was made without authority of law.

The argument falls before our decision in Davidson vs. Houston, 35 An., where we held that taxes of 1878 were due prior, to January 1st, 1879, and were covered by the constitutional ordinance and, consequently, by Act 98 of 1882. It follows that they fall equally within the purview of Act 107 of 1880.

2. Another cause of nullity urged is, that the sale was made on May 7th, 1881, whereas the Act 107 required it to be made on the first Saturday of March, 1881. Much discussion was had as to whether this provision was directory or mandatory, and as to the effect of a departure therefrom on the validity of the sale.

It is not necessary to consider these questions here. The statutory direction was, that the sale should be made on the first Saturday of March, and “ from day to day thereafter.” It does not appear on the face of the deed that the sale was not advertised for the first Saturday of March, aud continued “ from day to day.” On the contrary, the deed recites that the sale was made in accordance with the provisions of Act 107,” and with “ necessary publications and advertisements,” and after compliance with all the formalities required by and specified in the Act aforesaid.”

In absence of extraneous evidence, which is not admissible, it is impossible to say the sale was not made at a time authorized by the Act.

3. The nullity alleged in the assessment of the property certainly does not appear on the face of the deed; nor does it appear from the extract from the delinquent roll, offered in evidence by plaintiff, even if we could extend the exception so as to embrace nullities appearing from plaintiff’s own evidence, as well as on the face of the deed.

We find no error in the proceedings and judgment of the court a qua.

Judgment affirmed.


author: Todd, J.

text:
    No. 1070.
    The State of Louisiana vs. Moses Ely and Louis Augustin.
    An information that charges, “that A. B. at 8 o’clock in the night time with the felonious intent, the dwelling house of one C. D. feloniously then and there to aet fire to and burn, feloniously and burglariously then and there did break and enter the said dwelling house,” is not obnoxious to the charge of duplicity, as it charges but one offense, and that offense declared by Sec. 851, Rev. Stat.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Hahn, J.

      Hoses Ely, pro. per., Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant Moses Ely was tried, convicted and sentenced to imprisonment at hard labor for fourteen years, under an information charging as follows:

“ That Moses Ely * * at about 8 o’clock in the night time * * with the felonious intent the dwelling house of one Sylvester Warner * * feloniously then and there to set fire to and burn, feloniously and burglariously then and there did break and enter the said dwelling house,” etc.

The defendant appeals and points out as error the overruling of his motion in arrest of judgment.

This motion is substantially to the following effect:

1. “ That the information charges no crime known to the law; that an intent to do an act or commit a crime—which the information charges—is no offense until an attempt is made.”

2. ‘'Burglariously breaking and entering a dwelling house does not constitute an offense. The breaking and entering must be with the intent to steal, rob, etc., as provided by Sec. 851, R. S. No intent to do either act is alleged.”

3. “ The two supposed offenses are joined in the same count.”

We quote from Section 851 of the Revised Statutes as follows:

“ Whoever with intent to kill, rob, steal, commit arape, or any other crime, shall in the night time break and enter * * a dwelling house,” etc.

This language of the Statute answers virtually all the above objections. The information substantially follows the words of the Statute. The gravamen of the offense therein declared is the breaking and entering a dwelling house in the night time with the intent to commit a crime. The information expressly charges the breaking and entering in the night time, with the intent to commit a erime, to-wit: the crime of setting fire to and burning the dwelling house so broken and entered, or, in other words, the crime of arson.

The charge comprises a statutuory offense, and but one offense, with all the necessary averments to make the offense complete, and is not amenable to the charge of duplicity or other irregularity.

The sentence of the lower court is, therefore, affirmed with costs.


text:
    No. 1094.
    T. C. Standifer & Co. vs. J. A. Covington. Mrs. A. C. Lowery, Warrantor.
    A party who holds three judgments against the same debtor cannot be allowed to impute a part payment to the interests accrued on all three of his judgments, when it appears from the record that the sum realized by means of an attachment issued in only one of his judgments, to which the credit must be imputed,
    APPEAL from the Fifth District Court, Parish of Ouachita. Rich* arclson, J.
    G. J. Bocitner and M. J". Liddell for Plaintiff and Appellant:
    An adjudication to the wife, at sheriff’s sale, of property of her husband, subject to a special mortgage imposed thereon by the latter, the payment of which she assumes as the purchase price, is absolutely null and in contravention of Art. 2398 of the Civil Code. 1 An. 304; 5 An. 600; 23 An. 440.
    The adjudication of property, subject to a special mortgage, binds the purchaser personally to pay such mortgage as a part of the price. 7 An. 298 ; 10 Rob. 65, 107 j 4 ÍT. S. 154.
    A judicial mortgage is not extinguished by a sale under an ordinary judgment or junior morfr gage, though the property affected by it be subject to a prior special mortgage, the amount of which is bid at the sale.
    Sales under fi.fa. are made without regard to legal or judicial mortgages, and such mortgages remain unimpaired. 14 An. 665 ; 8 An. 464; C. P. 710.
    Arts. 684, 707 and 708 C. P., have reference solely to special mortgages. 7 An. 614; 5 An. 736, 574; 1 An. 32, 426; 2 An. 617.
    A confession of judgment may be validly made out of court and in a suit to be filed thereon. In such case no citation or notice of judgment is necessary. 29 An., Marbury vs. Pace.

      T. O. Benton, 12. Richardson and T. Slcillman for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Defendant’s motion to dismiss this appeal on the ground of our want of jurisdiction must prevail.

Plaintiff brought an hypothecary action on three judgments, two for $369.71, each with interest of 8 per cent, per annum from March 10th, 1874, and one for the sum of $425.50, with interest of 8 per cent, per annum on $304.84, and legal interest on $120.66, both from Novemher 1, 1876. All three of the judgments were rendered on November 20th, 1876.

The pleadings and the evidence show a credit of $254.03 in favor of the judgment debtor j and the imputation of that credit according to law is the question involved in the motion.

Plaintiff’s contention is, that the credit should be imputed to all the interests which have accrued on his three judgments in the aggregate, and that thus the capital of his judgments would remain about untouched and would show an amount sufficient to give us jurisdiction.

But in this he is not borne out by the record, which shows that the payment of $254.03 was the result of an'attachment issued in the judgment for $425.50, and that, therefore, the payment must be imputed to that judgment, as was done by the plaintiff himself in an account which lie annexed to his answers to interrogatories.

The record further shows that the credit was received but a few days after the rendition of the judgment, and the judgment would bear interests for not more than a month and a half, and that the interests would not amount to three dollars.

The amount involved in the suit is therefore made up as follows:

Amount in capital of the two judgments of $369.7!........$739.42

Attorney’s fees of 10 per cent, on same, agreed upon...... 73.94

Balance of judgment of $425.50 — $254.03................ 171.47

Amount in dispute, exclusive of interests.................$984.83

Hence, it follows that we have no jurisdiction.

The appeal taken herein is therefore dismissed at appellant’s costs.


author: Pochiíí, J.

text:
    No. 1086.
    S. Meyer vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    A debtor’s indebtedness cannot be divided without Ms consent, and hence, he cannot be held liable for an order on a part of his indebtedness, unless he consents to the appropriation, by his acceptance of the draft, or unless an obligation can be implied from the custom of trade, or flows from the nature of the contract between the parties.
    Custom cannot prevail against a positive law.
    The provisions of Act 134 of 1880 form part of the contract between railroad companies and other parties undertaking public works and their contractors. Hence, a railroad company cannot be held liable on an order for money drawn by one of its contractors, before the latter has made provisions for the payment of the wages due to his laborers, or to ♦those of his sub-contractors, and when said company has refused to accept such order.
    APPEAL from tbe Fifth District Court, Parish of Ouachita. Richardson, J.

      Richardson & Iddclell for Plaintiff and Appellant.

      F. P. Stubbs for Defendant and Appellee.
   The opinion of tire Court was delivered by

Pochiíí, J.

G. W. Crain, who was in the year 1882 a contractor of the defendant Company for the construction of a portion of their road, contracted a debt of $1,652.85 with the plaintiff Meyer.

His contract with the Company having been cancelled, and having no funds for the payment of plaintiff’s claim, he drew in the latter’s favor the following instrument:

Jos. F. McGuire, Esq., Cashier :

“ Pear Sir—Mr. S. Meyer has a bill against me for $1,652.85 ; this is for supplies furnished the men and for time checks. I have offered him this as an order on you to pay the same from my June estimate—I allowing him one month’s interest, to be added to the above. Please arrange it mutually and satisfactorily, and oblige, yours truly,

Geo. W. Cram.”

Plaintiff brings this suit against the Company on that instrument, which he construes as operating an assignment in his favor pro tanto of the indebtedness of the Company to Cram. He .takes this appeal from a judgment rejecting his demand on a defense of general denial.

When the order was presented to the Company through its financial agent, it was refused, with the statement that Cram was indebted to it in the sum of $6,000, and that his estimates for the month of June would not be sufficient to meet his pay rolls and those of his sub-contractors, and his indebtedness to the Company. Construing Cram’s letter as an unconditional order for money, and admitting that when it was presented he had funds in the hands of the defendant, we cannot assent to plaintiff’s proposition, that these circumstances operated an assignment under which the defendant could be held responsible for the amount which the draft called for.

It is elementary that a debtor’s indebtedness is indivisible without his consent; and in this particular instance, the debtor’s obligation to its creditor’s employees and laborers was fixed and regulated by law, which imposes on railroad companies the duty of securing the laborers of contractors and sub-contractors for their wages earned in the construction of works for such companies. Act 134 of 1880. Under the provisions of that Act, the defendant could not be legally held as a debtor of Cram for the month of June, until his liabilities to his laborers and to those of his sub-contractors had been ascertained and provided for out of his earnings for that month. Hence, it follows, that his order in favor of plaintiff was properly refused by the Company, and hence, there could be no assignment of funds, the existence of which could not yet be legally ascertained and determined in amount. There is no force in plaintiff’s argument, based on the alleged custom of the Company, in allowing a division of its indebtedness to contractors by paying orders as they were presented. No custom can he successfully invoked against the provisions of a law to the contrary. We understood the principle to he settled in our jurisprudence as follows: “ where an order is drawn on a general or a particular fund for a part ouly, it does not amount to an assignment of that part, unless the drawer consents to tlie appropriation by an acceptance of the draft, or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the parties as a part of their contract.” Poydras vs. Delamore, 13 La. 98.

Under sound principles of jurisprudence, the provisions of Act 134 of 1880 must he construed as making part of the contract between the defendant Company and Cram, its contractor, and we hold that the rights and obligations between the Company and Cram must be treated and governed by that legislation, and not by any custom of trade, or past conduct of the parties.

The reliance placed by plaintiff on the principles enunciated by this. Court in the Gtomila case, 34 An. 604, cannot avail him as a support of the proposition which he advances in this case. That case merely en-. forced the obligation which resulted from the relations between a banker and his depositor, and it distinctly recognizes the difference of the relations existing on the point between ordinary debtors and creditors.

Our conclusion is, that the defendant cannot be held liable to plaintiff on the order which he makes the basis of his right to recover in the premises.

Judgment affirmed.


text:
    No. 1076.
    The State of Louisiana vs. Joe Dallas.
    In cases not capital, the trial court may in its discretion allow the jury to separate before the submission of the cause.
    But in such cases, as well as in capital cases, the proceedings will he vitiated if a deputy sheriff, having charge of the jury, makes in their hearing statements of a damaging character to the accused, and if in answer to a question of a juror, he informs him that the accused had been previously sentenced to the penitentiary for the commission of a heinous offense.
    ApPEAL from the Second District Court, Parish of Webster. Drew, J,

      J. G. Eg,cm, Attorney General, for the State, Appellee.

      J. D. & T. T. Watlcins for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The accused appeals from a conviction of larceny, and his bill of exceptions, taken" to the ruling of the Judge on his motion for a new trial, shows the following facts which occurred in the jury room:

In a conversation between two deputy sheriffs who had charge of the jury, and who were then serving a meal to them, one of the deputies, speaking of the accused, stated within the hearing of the jury that the penitentiary would bo no new thing to him, as he had been there once before.

Later on, during the deliberations of the jury, the deputy sheriff who had made this statement was asked by one of the jurors, if it was true that the accused had been sent to the penitentiary, and for what offense; to which questions the deputy answered that he had heard that Dallas had been sentenced to the penitentiary for having participated in a bloody riot which had occurred some years before in Bossier Parish, and that he had been pardoned by Governor Warmoth.

This occurrence was manifestly sufficient to invalidate the verdict of the jury and should have entitled the accused to a new trial.

It is true that the charge was not for a capital offense, and that previous to the submission of the cause the Judge had the authority to allow the jury to separate, as he did, but the conversation indulged in, and the statements made by the deputy sheriff within the hearing of the jury, were calculated to unjustly prejudice them against the accused, and conveyed information which it was not legal to impart to them, even during the trial, contradictorily with the accused.

The conduct of the deputy sheriff is in the highest degree unbecoming and reprehensible, and places him in the attitude of an officer who deliberately impedes the administration of justice, which it was his bounden duty to promote, and wilfully clogs the execution of the laws which he has sworn to support.

The juror who further questioned tihe deputy as to the previous conviction of Dallas committed an act of misconduct which vitiated the whole proceedings, and contributes to support the conclusion that the accused has not had a fair and impartial trial.

A sheriff or any of his deputies, having charge of a jury in a criminal cause, has the right of speaking to the j urors for the purpose of inquiring into and ascertaining their wants, or of conveying necessary messages from them. Such conversations, when not referring to the case or to the accused on trial, will not vitiate the proceedings. State vs. Summers, 4 An. 27; State vs. Vines, 34 An. 1073.

But this rule cannot be extended so as to justify a conversation about the accused who is on trial, or to tolerate unwarranted statements of facts and incidents in the past life of the accused, calculated to prejudice his case in the minds of the jurors who are to pronounce a verdict affecting bis liberty.

This ground of complaint is sufficient to entitle the defendant to relief, and obviates the necessity of passing upon numerous other errors charged by him.

The verdict of the jury and the sentence of the court in this case are therefore annulled, reversed and set aside, and the cause is remanded to the lower court for a new trial of the accused according to law.


author: Bermudez, C. J.

text:
    No. 1071.
    The State of Louisiana vs. B. O’Kean.
    A trial Judge rightfully refuses a question to he put to a witness under cross-examination, to impeach his veracity, unless a foundation has been previously laid to that end. Such witness cannot, in a case of embezzlement, be asked to examine accounts other than those of the accused. Error in such accounts would not prove error in that of the prisoner.
    A trial Judge cannot be asked to charge the jury so as to express an opinion as to what facts have been proved. It lies within the exclusive province of the jury to weigh the evidence adduced on the trial.
    The failure of an accused to pay over the money which he is charged of having embezzled, if unexplained, does not of itself raise a presumption of a felonious appropriation sufficient to convict.
    A bill of exception taken to the overruling of a motion for a now trial, which is levelled exclusively at the verdict, because contrary to the evidence, is devoid of merit, as it presents no question of law which this Court can consider.
    APPEAL from the Criminal District Court for the Parish of Orleans. Soman, J.

      J. G. Egan, Attorney General, for the State, Appellee.

      J. H. Healey and" J¿. S. Hennee for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a judgment sentencing him on a verdict of guilty of embezzlement to one year at hard labor.

The record contains four bills of exception: one, taken to the refusal of the Judge to allow a question to be put and answered; two, to his refusal to give charges asked, and a last one to his overruling of the motion for a new trial.

The first bill shows, that the prosecuting witness, being under cross-examination, counsel for the defense asked him to “ examine the books in his charge, turn to the account of one Platt, and state the condition of his and other accounts.”

On objection of the district attorney, the court refused to allow the question to be answered.

It is claimed that the question was sought to be put to discredit the evidence of the witness and thus to show him. unworthy of belief.

It does not appear from the bill that the witness had previously tes-, tified in relation to the accounts which he was asked to examine and to state the condition of. It is difficult to perceive how an answer touching those accounts, whether responsive or not, could have impeached the veracity of the witness. No foundation having previously been laid, the question was clearly irrelevant. Errors in the accounts of other parties would not have established errors in the account of the accused.

The second bill shows that the Judge refused to instruct the jury :

That the information charges that the money was embezzled as a clerk, and the evidence establishing the fact that the prisoner was a solicitor and salesman. Upon such showing and under such circumstances, the prisoner should be acquitted of the charge as laid in the information.”

This charge implied the expression of a knowledge of the facts proved and required a comment upon the evidence. It appertained exclusively to the jury to ascertain and determine whether the accused, at the time of the alleged commission of the offense, was or not in the employ of the prosecuting witness in the fiduciary capacity of a clerk, and then committed the act for which he stands prosecuted.

Judging from appearances, it would seem that counsel for defendant probably intended to ask the Judge to expound to the jury the meaning, purport and definition of the word cleric, as used in the statute, and to state to them that a solicitor or salesman was not such clerk and did not come within the purview of the definition; but the Judge, not having been thus requested; properly declined to give the charges as asked. It remained justly with the jury to find whether, under the evidence, the defendant, acting as he did, was or not a cleric under the statute.

The third ground of complaint is, that the Judge refused to charge the jury that “ the failure of the accused to pay over the money, if unexplained, does not of itself raise a presumption of a felonious appropriation sufficient to convict.

The Judge refused the charge, on the ground that it had no beating on the case, and that the failure of the accused to pay had already been unmistakably explained.

Deprived of the knowledge which the Judge had of the facts, we cannot say what was the explanation given. While we attach due weight to his views, we find that they are reticent on that particular subject, and incline to believe, that the charge requested was proper and legitimate. It would not, as apprehended, have confused the mind of the jury. Its object was, on the contrary, in a case of embezzlement like this, to enlighten the jury by furnishing them with information and knowledge touching the elements and ingredients necessary to constitute the offense charged and the quantum of evidence required by law in such a case. The failure of the accused to pay may, as stated, have been unmistakably explained, but the explanation, whatever it was, incriminating or exculpatory, was a circumstance of great significance, which was to be found and considered by the jury.

The prosecution was carried on under the provisions of Sec. 905 of the R. S., which is to the effect, that any clerk who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money which he shall have received for his employer, shall suffer imprisonment at hard labor not exceeding seven nor less than one year.

Embezzlement is defined to be the felonious appropriation of the property of another by one to whom it has been entrusted.

The law discriminates between the embezzlement of public and private property by public officers and private individuals, and legislates by different statutes for the two sorts of embezzlement.

In the case of embezzlement of public property, the neglect to pay over on demand is prima facie evidence of its conversion and embezzlement. R. S. 903.

Although it does not say so explicity, in the case of embezzlement of private property, it would seem that the mere failure to pay should not be sufficient to convict. There should in such a ease be shown a demand, as an essential ingredient for conviction, from which a wrongful disposition or felonious appropriation could be inferred. The failure to pay without proof of such demand, that is, of itself, would not therefore be sufficient to convict. R. S. 905.

The charge asked was recognized as legal in People vs. Carillo, 54 Cal. 64; see also State vs. Leonard, 6 Cald. 307, (Tenn.)

We think the charge should have been given.

The last bill is taken to the overruling of the motion for a new trial.

It is devoid of merit. The motion for a hew trial is levelled at the verdict, as being contrary to the evidence submitted to the jury, and tenders no question of law which we are authorized to consider. With the guilt or innocence of the accused, as the same may result from the facts proved on the trial, we have no concern.

Decreeing that the charge included on the third bill should have been given, we must remand the case.

It is, therefore, ordered and decreed that the verdict herein be set aside, and that the judgment and sentence upon it be annulled and reversed. It is further ordered and decreed that this case be remanded to the lower, court for a new trial and further proceedings, according to the views herein expressed and according to law.


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    No. 1081.
    A. V. Witkowski and Husband vs. W. W. Bradley, Sheriff, et al.
    Whore a parish has levied an annual tax often mills on the dollar, it is without authority to levy an additional tax to pay a judgment against the parish, when it is not shown that the judgment was founded on a contract. The restriction on the taxing power contained in Act 209 of the State Constitution must be enforced in all cases where it does not contravene the inhibitions of the federal Constitution.
    APPEAL from the Sixth District Court, Parish of West Carroll. Brigham, J.
    /S'. T. Baird for Plaintiff and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff resists by injunction the collection of a parish tax, imposed by an ordinance of the Police Jui-y of West Carroll, on the ground that the ordinance in question was unconstitutional and void.

From a judgment in favor of plaintiff, declaring the tax illegal and the ordinance null, the parish lias appealed.

The said ordinance was passed on the 8th of July, 1882, providing for the levying of a tax of five mills on the dollar to pay a judgment against the parish, rendered by this Court at its last term at this place (June, 1882) for $500, in favor of Mrs. E. Gaddis, in a suit entitled Parish of West Carroll vs. Mrs. E. Gaddis et al.

The ground of resistance to the tax is, that before the passage of the ordinance imposing this tax, the parish had already levied an annual tax of ten mills on the dollar, and under the constitutional limitation was absolutely without authority to impose the additional tax for the aforesaid purpose.

These facts, which are set forth in the petition, are admitted by the defendants. There is no claim set up by the pleadings and no pretense, in fact, that the judgment, to pay which the tax was being collected, was founded on a contract, and protected from impairment by the Constitution of the United States. Under these circumstances, there existed no cause whatsoever to affect or impair that prohibitive clause in Article 209 of the present State Constitution, which declares that “no parish or municipal tax for all purposes shall exceed ten mills on the dollar of valuation,”—a prohibition which is again repeated in Act 78 of 1880, and the observance of which, by the terms of the Act, is specially enjoined on Police Juries and all other authorities empowered to impose or levy taxes.

This absolute and mandatory limitation on the taxing power is binding upon every department of the State government, and upon all local or subordinate governments deriving their authority from the State, and upon all public officers, and must be sacredly observed and enforced, save and except in such cases only where it is found to contravene the paramount law of the land and the restrictions imposed by that law upon the power of the States.

Viewed in this light, the ordinance in question and the tax sought to be collected under it were unconstitutional and illegal, null and void. See case of State ex rel. Folsom Bros. vs. Mayor of New Orleans, 32 An. 709.

The judgment appealed from is, therefore, affirmed with costs.


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    No. 1090.
    Succession of G. W. Price Opposition of T. S. Aubrey.
    Oppositions to accounts of administration may be filed after tbe expiration of legal delays of the public notice, provided they be filed before the homologation of the account.
    All payments made by an administrator without the order of the court are unauthorized, and are made at his own risk.
    Clerks of tile District Courts have no authority in law to approve tableaux of debts, or homologate accounts of administration, or to authorize the payment of debts by administrators. Act 106, 1880.
    APPEAL from the Third District Court, Parish of Claiborne. Graham, J.

      IF. J. Scott and F. P. Stubbs for Appellant.

      J. A. Jiichardson for Opponent.
   The opinion of the Court was delivered by

Poché, J.

In the inventory and settlement of the succession of G. W. Price, the administrator included the property of his predeceased wife, Mrs. M. D. Price, consisting of her share in the community, and sold it indiscriminately with that of the succession which he represents, without mention or recognition of her community rights.

T. S. Aubrey, the opponent herein, having purchased the interest of one of Mrs. M. D. Price’s heirs in her succession, brought suit against the administrator of G. W. Price for the recognition and enforcement of his rights, and obtained from the Court of Appeals a final judgment, condemning the administrator to pay him the sum of $202.59 out of the proceeds of the property of Mrs. M. D. Price, which had come in his hands, in the sale made by him.

Setting forth this judgment, Aubrey then filed his opposition to the final account of administration, in which he had not been recognized. This appeal is taken by the administrator from the judgment of the lower court maintaining the opposition.

We shall consider the administrator’s defenses in the following order:

I.

He excepted that the opponent, claiming by virtue of his ownership of a portion of the property sold as belonging to the succession of G. W. Price, the latter’s remedy was not by opposition, but should have been by a direct action for the revendication of his property.

This exception came too late, and should have been interposed in the suit brought by Aubrey for a moneyed judgment against the administrator, as the transferree of Mrs. M. D. Price’s heir.

In that case the administrator joined issue with him on the merits ; the judgment on those issues is now final, and whether right or wrong, not subject to our revision. Under the effect of that judgment, opponent is a judgment creditor of the succession of G. W. Priee, with the right of being paid by preference out of the proceeds of one-half of the community heretofore existing between Price and his predeceased wife.

The exception was therefore correctly overruled.

rr.

The administrator then objected that this opposition was filed too late, having been presented after the expiration of the ten days following the publication of the administrator’s account.

Article 1005 of the Civil Code provides that, after the expiration of the ten days after this notice, if there is no opposition of creditors or legatees, the administrator shall proceed to the payment of claims against the succession, in conformity with the authorization by him obtained or the tableau of distribution which he has presented, and which the Judge shall cause to be homologated.

In this case the administrator had not been authorized to make payments, and his tableau had not been homologated when this opposition was filed. Nothing contained in the Article, as expounded by jurisprudence, precludes the right of opposing the homologation of the administrator’s tableau at any time before the judgment of homologation has been rendered.

The command to the administrator to proceed to pay according to his tableau, imposes the condition of a previous authorization of the court, and leaves the door opened, even after the expiration of the legal delays for oppositions to his tableau, as long as the same has not been made the judgment of the court.

An opposition to a tablean is an answer to the demand of the administrator for the approval of his account. Succession of Romero, 28 An. 607. Now, although the defendant in an ordinary suit is cited to answer within ten days, it is elementary in our practice that the answer can be filed any time before final judgment. The same principle applies to oppositions to accounts of administration.

It has been applied by this Court to oppositions to applications for administration, when filed after the expiration of the ten days after the publication of the notice, and by the strictest analogy it must apply to oppositions to accounts of administration. Succession of Picard, 33 An. 1135; Succession of Block, 6 An. 810; Succession of McKinney, 4 An. 25; Hook vs. Richardson, 4 L. 571.

The rule is well settled that all payments made by the administrator without an order of court are unauthorized, and cannot defeat the rights of heirs, creditors or legatees. C. C. 1179 to 1184.

III.

But the administrator claims that he was authorized to pay out, as he did, all the funds in his hands belonging to the succession of G. W. Price, and that in consequence thereof, he has now no funds with which to meet the payment of opponent’s judgment.

The authorization which he shows was given by the clerk in an order approving his tableau of debts presented with his petition for the sale of succession property for the payment of such debts.

This is not the authorization which the law contemplates. It must emanate from the Judge, and not from the clerk. C. C. 1185.

The only judicial functions which clerks of the District Courts can perform are enumerated in Act 106 of 1880, and the power to approve tableaux of debts, homologate accounts of administration, authorize administrators to pay debts, is not therein included.

It does not therefore exist; hence, it was illegally exercised in this case, and it produced no legal effect.

Opponent’s claim is sanctioned by a final judgment of a competent court, and its recognition on this opposition is correct.

Judgment affirmed.


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    No. 1097.
    Louisa Ferrand vs. Heirs of Mary Brés et al.

      An action by part of the heirs for a “ partition ” of the estate of their mother will not bo regarded in that light when it is apparent that there exists no such property to be partitioned, unless a renunciation of the community by the mother be previously set aside.
    The action will be considered as a disguised one, for the nullity or rescission of such renunciation, and as such barred by the prescription of five years.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bichar dson, J.

      Boatner & Boatner and M. J. Liddell for Plaintiff aud Appellant:
    The action for partition is only prescribed by thirty years.
    So long as the action for partition is not prescribed, all accessories, such as collation etc., exist with it. 14 An. 750; 12 An. 354; 8 L. 230; 9 An. 90 ¡ II An. 227; 16 An. 170.
    An heir cannot be relieved from the obligation of collating a debt due the succession, on the ground of prescription accruing after the date of opening the succession. 15 An. 209; the Court quoting 14 An. 250; 12 An. 353.
    Hor is an heir relieved from collating, because of the prescription of the debt before the death of his ancestor. 28 An. 748.
    A discharge in bankruptcy will not relieve an heir from the obligation to collate debts due the ancestor. 9 An. 96.
    Any act of sale by the ancestor to a forced heir cannot be annulled in a direct action. The remedy of co-heirs is to sue for a partition, in which any indirect advantage will he subject to collation. 13 An. 173.
    Though the heir acquire the succession from the moment of the death of the deceased, his right is in suspense until he decide whether be accepts or renounces. O. C. (O. C.) 940. And if he accept, he is considered as having succeeded the deceased from the moment of his death. See also Arts. 937, 938.
    The right of accepting a succession is only barred by the prescription of thirty years, (O. C. 1023) and the effect of his acceptance goes back to the day of opening the succession. C. C. Art. 981.
    The acceptance of a succession embraces the right to demand possession of its property—if the heir accepting be the sole heir, or of demanding a partition if there are other heirs, and the right to claim a partition includes all rights accessory and incidental to it.

      The action of partition lies, though the ancestor has given away all his property during his lifetime, and the obligation to collate by one heir constitutes as to the others, the entire succession. 8 L. 230; 7 Rob. 429.
    The right of partition is not restricted to the property left by deceased, but extends to a settlement of his estate according to the principles and rules laid down in the Code. See 8 La. 230 ; 7 Rob. 429 ; 13 An. 207.

      liobt. May for Defendants and Appellees:
    An action to require heirs to collate property, which they took possession of under a judicial partition, is bound by the prescription of thirty years. C. C. 3499, et seq.; C. C. 1305, 1306; 26 An. 420.
    The effect of the renunciation of the wife, is to place the estate of the husband in the same situation as if no community of acquets had existed; relieves her of the community debts, and gives her a mortgage on her husband’s property for the restitution of her dotal and paraphernal funds used by the husband during marriage. C. C. 2410 to 2415 ; 4 R. 71 and 339; Troplong de la Proscription, Yol. 2, Nos. 846 and 820; Marcadé, Yol. 5, p. 99.
    A renunciation cannot be attacked by forced heirs as a simulation, but if considered as a disguised or excessive donation, or as givingan advantage to one forced heirover another, then it may be, provided it is done within the time authorized by law, to-wit: five, ten, and twenty years. C. C. 3542; 14 An. 152; 22 An. 223; 26 An. 419; 2 An. 486, 466.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is apparently an action brought by the plaintiff for a partition of her mother’s estate.

The substantial allegations of the petition are verified by a statement of facts agreed to by the parties for the trial.

It appears from those admissions, that Jean Brés died in 1842, leaving a considerable estate in community with his surviving wife, who, having twice married (the first time with Laudeman, plaintiff’s father) had children by both marriages.

Shortly after the death of her husband in the same year, Mrs. Brés executed an act of renunciation of her interest in the community, for the purpose, it is stated, of freeing herself from the payment of its debts.

The heirs of Jean Brés continued to hold the property in common until 1847, when they made among themselves a definitive partition of his estate, and at once entered into actual possession of (¡he portions respectively accruing to them, separately and individually.

Mrs. Brés died in 1857. Her succession never was formally opened. No partition of her estate has ever been made.

The suit was instituted in September, 1880. The main defense is the prescription of five, ten and thirty years.

Erom an adverse judgment sustaining the plea, the plaintiff has appealed.

The action is not one for a partition. Its object is clearly to revoke , and upturn, so as to render them absolutely ineffectual: 1st, the act of renunciation by which Mrs. Brés relinquished all the interest Which she had in the involved community between her and her late husband ; 2d, the partition made by the defendants. Indeed, it is not until after those insuperable impediments have been removed, that the plaintiff can be heard to say that her mother has left property, once common, which should be partitioned among her and her co-heirs, the issue of both marriages.

It is unnecessary to determine whether the invoked prescription of ten and thirty years is destructive of plaintiff’s action, the moment that the character of that action is ascertained and announced.

The law distinctly provides, that the action for the nullity of contracts, testaments and other acts, that for the reduction of excessive donations, and that for the rescission of partitions, is extinguished by the prescription oí five years.

The occult purpose of this suit is manifestly the revocation of the fundamental act of renunciation of Mrs. Brés.

The plaintiff has charged it with shrmlatíon, but, at the same time, has strongly averred that its purpose was to benefit the children of the second marriage, to the detriment of those of the first. This was equivalentto a charge of fraud. Although the word itself was not used, the fact necessary to constitute it was distinctly announced. There is neither evidence nor admission to show that Mrs. Brés intended or designed any act simulated or fraudulent, which law or conscience would reprobate.

She had the right to do what she did, and if she subsequently could not undo it, she surely did not transmit to her heirs a prerogative which she did not possess.

Under the law, as it then stood, and has continued up to recently, the surviving wife was bound to accept or renounce unconditionally the community. She was not allowed the privilege accorded to heirs, and now enjoyed by wives judicially separated, or by widows, of accepting it under benefit of inventory.

By renouncing, she effectually relieved herself absolutely from all responsibility, and the effect of her renunciation was to place matters and things in the condition in which they would have stood, had no community ever existed. The consequence was, that all the property which constituted the mass of the community assets, at once composed the active of the succession of Jean Brés, subject to the debts and liabilities against it. .

By the partition, his children by the second marriage have accepted liis succession and made themselves liable for the charges with which it was encumbered, and which to all appearances have been satisfied.

By her long silence, the plaintiff has ratified the act of renunciation, the partition, and possibly the excessive donation, if any, which Mrs. Brés may be. charged as having made to her children by the second marriage. >!

Prescription is not a reprobated defense. It is established by the ' very necessity of things for the good order and quiet of society and of its members. The law forbids that it be considered as odious. It rests upon a presumption of payment, of settlement of liabilities, or upon a remission of obligations, or an abandonment or relinquishment i-of rights. Natural law declares it, civilization accepts it, and the civil law consecrates and enforces it, as well for the acquisition of rights as for the release from obligations.

Treating this action as it should be, as a disguised, one, for the rescission of the act of renunciation and of the other acts flowing from it, all of which occurred more than thirty years ago, and considering that Mrs. Brés departed this life in 1857, and that this suit was brought in 1880, we feel no hesitation in reaching the conclusion that the action is barred by the lapse of five years, whether the initial point of computation be 1842, 1847 or 1857.

The judgment appealed from is affirmed with costs.


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    No. 1197.

    Ellen Broussard et al. vs. P. H. Segura, Clerk, et al.
    Under the provisions of Sec. 8 of Act 95 of 1869, (R. S. 3093) on the subject of mortgages, the affidavit of a tutor, stating his indebtedness with necessary facts to his ward., and recorded prior to the 1st of January, 1870, is a valid registry of the minor’s tacit mortgage, and preserved it as effectually as if an extract of the inventory of his estate had been registered.
    This ruling is made in a case in which, at the time of inscription which was the last day of December, 1869, no inventory had been taken of the minor’s property.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Fontelieu, J.

      Breaux <& Benoudet for Plaintiffs and Appellees.

      B. 8. Perry for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs claim that they are entitled to the cancellation of certain inscriptions from the mortgage books of the parish in which they own real estate, existing apparently in favor of James DeBlanc, who, with the clerk and ex-officio recorder, is made defendant in this suit.

The defense is, that the inscriptions are valid and secure a legal mortgage. The prayer is, that the validity of the inscriptions and of the mortgage be recognized.

From an adverse judgment, the defendants have appealed.

The following are the conspicuous facts :

On the 29th of December, 1862, Dorsino DeBlanc was appointed and qualified as tutor by nature of his sou, James DeBlanc, the issue of his marriage with Palmyre Cliaelieré, who had died on the 4th of July previous. On the 6th of September, 1869, he sold to Elvina Broussard, from whom plaintiffs inherited it, his share in the property described in the petition. No inventory having been taken of his wife’s estate, D. DeBlanc, on the 31st of December, 1869, made and caused to be recorded in the mortgage office, an affidavit, in which he declared: that he had received $4,008 in slaves for his wife, who had since died, leaving as the issue of her marriage with him James L. DeBlanc, then a minor, now the real defendant iu this controversy and that he, Dorsino DeBlanc, had been confirmed as the tutor of his son and was indebted to the latter in the said amount.

It appears that, subsequently, on March 18th, 1872, R. Chacheré, administrator of the successions of the maternal grandfather and grandmother of James DeBlanc, made and caused to be likewise recorded an affidavit, in which he attested that, in his said capacity, he had paid to D. DeBlanc, pursuant to tableaux of 1866 and 1867, for his son, the sum of $3,765.

The complaint is, that the registry of the first affidavit was wholly unauthorized by law and did not preserve the legal mortgage of the minor, if he had any at the time against his father and tutor; that the registry of the second is of no consequence and, finally, that the consideration of the debt consisted iu negroes, and being contra bonos mores, is null and void and produces no effect.

The plaintiffs claim that the previously existing tacit mortgage of the minor could have continued in force only if a copy or abstract of the inventory of his property had been recorded.

In support of their proposition, they refer the Court to the Constitution of 1868, Art. 123. to Act 95 of 1869, p. 114, and to the ruling ip Hickman vs. Thompson, 28 An. 268 and in other cases; 22 An. 278; 23 An. 57, and 33 An. 220.

There can be no doubt that, if the tacit mortgage which existed in favor of the minor previous to the adoption of the Constitution of 1868 has not been seasonably recorded in the mode prescribed by the law passed in furtherance of a constitutional requirement, it was not preserved and bridged over the 1st of January, 1870, and that the illegal inscription made is cumbersone and must be erased as a nullity.

The last authority referred to has no bearing upon the question now under consideration, and the other precedents cited merely constitute res judicata between the parties to the litigation in each case.

An examination of those decisions does not show that Section 3093 of the R. S. was submitted to the consideration of the Court. It is, therefore, to be inferred that, had such been the case, the probability is that the rulings made would not have seen the light of day.

It cannot be disputed, nor is it, that had the certificate of the amount of the minor’s property, mentioned in Section 3087, been recorded, the inscription would have operated a legal mortgage in favor of the minor and against his tutor’s actual and future property. But it by no means follows that, in the absence of the registry of such certificate, some other registry could not and did not preserve the minor’s previous occult mortgage.

It is manifest that the law giver was peculiarly anxious to provide for the preservation of all legal mortgages tacitly existing prior to the adoption of the Constitution of 1868, and that in the apprehension of causing some injury by the absence of provision of adequate remedy, he passed that part of the law of 1869, which now constitutes Section 3093 of the R. S.

By so doing, the door was effectually closed against the complaint of casus omissus.

That Section declares: that any and all persons entitled to a mortgage or privilege on the property of another person shall cause the evidence of the same to be recorded ; that “ if the same be not in writing, the person claiming the mortgage or privilege, his agent or some person having knowledge of the fact, must make affidavit of all the necessary facts, which affidavit shall be recorded in the mortgage book, etc.

Section 3095 is to the effect, that the recording of any instrument, according to the provisions of the act, shall operate as a mortgage or privilege on the property of the person owning or subject to the mortgage, etc.

In the present instance, as no inventory had been taken of the property of the minor, it would have been a physical impossibility.to have caused to be recorded an extract of the same.

It may be that the father and tutor should have caused an inventory of his son’s estate tobe taken ; that for not so doing he is censurable 5 but it does not follow, that on account of such dereliction of duty on his part, his minor son should suffer when the law afforded other adequate remedy, which was resorted to.

Dorsino DeBlanc, as the tutor of his son, was his agent and was specially authorized by law, in the absence of any written evidence of his son’s mortgage against him, to make and register the affidavit which he has subscribed and recorded and which complied with the law, and hence, preserved the mortgage.

We attach no significance to the objection urged.against the apparent consideration of the debt acknowledged in the affidavit.

The rulings made under a different regime, holding such consideration as immoral and illegal, have since been effectually blotted out of jurisprudence, not only by our own highest court, but also by the most elevated tribunal in the Union.

As the plaintiffs formally admit that they do not even attempt to inquire into the validity and consideration of the mortgage, further than appears on the face of the papers recorded, we are relieved from the necessity of passing upon the existence and correctness of the claim secured by the inscription and mortgage.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that the demand of plaintiffs be rejected with costs in both Courts.


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    No. 1170.
    Thomas C. Anderson vs. C. C. Duson, Sheriff, et als.
    A forced respite cannot be attacked collaterally by a creditor, on the ground that the debtor has violated the terms thereof.
    Such a respite resulting from a judgment must stand and remain in full force, until avoided or set aside in a direct action.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Albert Voorhies, F. F- Ferrodin, G. W. JDuBoy and F. G. Dlrick for Plaintiff and Appellee.

      H. L. Garland for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The following are the facts and pleadings in this case: • By judgment of this Court, rendered in July, 1881,’ (33 An. 1156) plains tiff Anderson obtained a forced respite against his creditors.

The respite had been applied for in 1879, but the order of^lie District Court granting the same, after two different appeals, and a protracted resistance on the part of the minority of the creditors, became final only in 1881. Under its terms the debtor was allowed a respite of three years, which must be computed from July, 1881. C. C. 3091.

During the year 1882, several creditors having issued execution on their respective judgments against Anderson, the latter instituted injunction proceedings, in which he set forth the respite which he had obtained, and the fact that it had not yet expired, and in which he averred that, if his respite imported three annual instalments, he had not been put in default for the first instalment.

The defendants in injunction met these pleadings by a general denial, coupled with the averment that they were proceeding to reclaim their rights according to law against Anderson, when they were illegally enjoined in these proceedings, to their great damage in the sum of five thousand dollars, for which they prayed judgment. They also urged the insufficiency of the bond of injunction, but we understand that this point is virtually- abandoned on appeal.

The judgment of the District Court perpetuated the injunction, and defendants have appealed.

In his brief, defendants’ counsel takes the position that the failure of the debtor to comply with the terms of his respite, particularly in failing to pay the first annual instalment at its maturity, was a legal justification of their execution of their judgments.

But we note that in his answer he completely fails to aver such or any other justification for ignoring the respite shown by the record, and which he does not even dispute or deny.

Conceding that a violation of the terms of the respite by the debtor could avail the creditor and justify a collateral attack on the proceeding, the plainest rules of evidence should at least require of the seizing or complaining creditor allegations of the grounds of his attack. These views might be sufficient to dispose of the defendants’ case.

But this objection is not urged by plaintiff’s counsel, who join issue with the defendants in their argument on the question of the effect of his failure to meet the first annual instalment maturing in July, 1882, under the terms of the respite. They may have considered that defendants’ general denial sufficiently traversed their allegation in justification of plaintiff’s failure to meet his first annual instalment, so as to present the issue of the creditor's legal right to ignore the respite whenever it is violated by the debtor, and to proceed at once with the •execution of his judgment. We adoptthat view, and shall now proceed to discuss this proposition.

Tlie respite in this case is known in our Code as the forced respite, which derives its binding force and effect from the judgment of the court which homologated the proceedings of the meeting of the creditors. Without such a judgment, rendered contradictorily between tlie debtor and his creditors, there can be no forced respite. C. C. 3086, 3091.

The effect of this judgment is to create a judicial contract between the debtor and all his creditors, by which the debtor is allowed a delay for the payment of the sums which he owes them. Hence it is, that the creditors who were unwilling to allow time or delay to the debtor became legally subjected to the terms dictated by the majority of the creditors. Morgan vs. Nye, 14 An. 30.

As the debtor’s property is the common pledge of his creditors, and as the contract is binding on all the creditors, thelaw did not and could not contemplate to confor on any one creditor, the right of annulling the contract without judicial process, on the ground of its alleged violation by the debtor, and to proceed to apply the property thus restored to the possession of the debtor, to the satisfaction of his individual debt. The defendants in this case do not even pretend to be privileged creditors, and hence they cannot, in fact they do not, claim immunity under the provisions of Art. 3095 of the Civil Code.

Besides, the contract which the defendants seek to avoid and annul' in this collateral manner, is the result of a judgment, which they do not even charge to be null on its face, and which must certainly remain in full force until avoided or set aside in a direct action.

This principle is firmly imbedded in our jurisprudence, and has been frequently applied to judgments rendered at chambers, not contradictorily with the parties assailing the same, such as orders of appointment of administrator, executors and such fiduciary officers. Duson, Curator, vs. Dupré et al., 32 An., and authorities therein quoted.

In a recent case this Court held, that a final judgment recognizing a homestead right remains in full force until set aside in a direct action ; such judgment cannot be attacked collaterally. Colvitt vs. Williams, 35 An. not yet reported.

We therefore hold, that the creditor who complains of his debtor’s violation of the terms of his respite must have recourse to a direct action, if he desires to avoid or set aside the judgment under which the respite was obtained. And we understand this ruling to be in the interest of the other creditors, whose rights would otherwise be unprotected and probably jeopardized.

Under such a ruling the creditors are not left at the mercy of a designing or dishonest debtor whose property is restored to his possession and administration under the effects of a respite. Article 3093 of the Civil Code provides ample protection for the minority creditors by means of a bond, which they may require of the debtor with a view to secure a faithful administration and account of his property.

Under the views which we have taken of this case, we find no necessity to pass upon a bill of exception taken by plaintiff to the admissi on of testimony to show a wrongful disposition by him of some of his property.

We note his motion for an amendment of the judgment appealed from, with a view to recover.attorneys’ fees as damages occasioned by the defendants’ wrongful seizure. The doctrine that such damages cannot be allowed in the same suit in which the injunction is obtained is now well settled.

It was recently reviewed and reaffirmed by this Court in the case of Wm. S. Campbell vs. John P. H. Short, on injunction of F. C-. Wilson, 35 An. not yet reported. We there held: “the damages should be estimated and attested according to the condition of affairs existing before and up to the institution of the suit, and a party is not entitled to recover expenses incurred for fees of counsel and expenses of attending the trial,” etc.

• But plaintiff’s right to claim such damages in a direct action should be reserved, and we shall amend the judgment in this particular. The judgment appealed from is therefore amended, in so far as it absolutely rejects plaintiff’s claim for damages, which demand is denied, as in case of non-suit, and as thus amended, said judgment is affirmed at appellants’ costs.


text:
    No. 1184.
    Martha L. Sojourner vs. Elizabeth A. Fourney.
    There is no provision of our law that forbids an administrator from baying property mortgaged to pay a succession debt, and where the proceedings are regular and free from the imputation of fraud, and the sale has been followed by an undisturbed and continuous possession of more than ten years, the purchaser is protected by prescription,
    jtfor will the fact that the sale was made upon a mortgage note due the succession, which was credited with the amount of the adjudication, vitiate the sale if the administrator charges himself in his account with said amount.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      J). Gaffery for Plaintiff and Appellant.

      A. G. Allen and M. J. Foster for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, describing herself as one of the forced heirs of James Campbell, deceased, alleges in substance that another of said heirs, the defendant herein, was appointed administratrix of his succession ; that under an order of seizure and sale taken out by the defendant as administratrix, on certain promissory notes belonging to the succession, secured by mortgage on the property described in the petition, she, the defendant, in the year 1868, had purchased the said mortgaged property for two thousand dollars, and had since been in the use, occupancy and enjoyment of the same. That the property was then and now worth five thousand dollars, and its rental $500 per annum. That subsequently the defendant as administratrix had filed her account, in which she had charged herself with the amount at which the property had been adjudicated to her, which account she, the plaintiff, had opposed.

It was further alleged, that the defendant as administratrix had no right to buy the property in her own name, and that the adjudication should have been made to the succession, and it was prayed that the property be decreed to belong to the succession, and that the defendant account for its revenues, and be destituted of the administration of the succession.

The petition was filed on the 1st of December, 1882.

The defendant excepted to the suit: 1st, on the ground of no cause of action, and 2d, that the action was barred by the prescription of. ten years, basing this plea upon the fact alleged that she, defendant, had been in the peaceable and undisturbed possession of the property for ten years as bona fide owner, under a title translative of property.

The plea of prescription was sustained and the suit dismissed, and from this judgment-the plaintiff appeals.

We think the judgment correct.

There is no provision of our law that forbids an administrator from purchasing property at a judicial sale made to pay a mortgage debt of a succession, provided the proceedings are regular and free from any charge of fraud or other radical vice. An administrator, if an heir, as in the instant case, or survivor in the community, may even purchase succession property sold under an order procured by himself.

Moreover, an administrator is entirely without authority to buy property for a succession, unless in exceptional cases where the purchase might properly be regarded as an act of administration, as for instance the buying of supplies and. other things necessary for the cultivation of a growing crop belonging to the succession, or the preservation of its property, or the like. Therefore, the defendant as administratrix could not legally have acquired or bought the property in question for the succession. Had she done so, the sale would have amounted to nothing, unless ratified by the heirs and creditors, a risk which the administratrix would not have been warranted in taking.

Nor does the fact that the notes of th.e succession were used in making the purchase vitiate the sale, since the amount of the adjudication is accounted for, as the plaintiff alleges to be the case.

The defendant, therefore, not being legally incapacited from making this purchase, and having occupied and possessed the land without objection from the plaintiff or the other heirs or the creditors of the succession, and without disturbance from any quarter, for at least twelve years, under a sheriff’s sale, a title translative of the property, she was fully protected by the prescription pleaded.

The judgment of the District Court is, therefore, affirmed with costs.


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    No. 1204.
    Walter A. Ricks et al. vs. Elbert Gantt.
    When a party to a suit, fully aware of the relation which the Judge bears to the cause, as exhibited by his own pleadings, fails to recuse him, and submits his cause for determination, he will not be heard, after judgment, to assign the incompetency of the Judge as a ground for new trial. In this case there was no ground for recusation of the Judge.
    The prescription of the action against the surety of an administrator does not run from the elate of the bond, but only from the time when the right of action against the surety arises, that is, after judgment and other “ necessary steps ” have been taken against the principal.
    When judgment against the principal has been obtained, execution issued and returned nulla bona, and insolvency of principal established, no other steps are necessary to justify recourse against the surety.
    The liability of the surety is limited by the amount of his bond. When the amount is loft in blank in the bond, the law fills the blank with the amonnt fixed by itself, to-wit; one-fourth over the amount of the inventory, had debts deducted.
    Interest runson the amount due by the surety from the time when it became duo and demand-able, vi» i after the taking of the necessary steps against the principal.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      H. L. Garland for Plaintiffs and Appellees.

      Lewis & Brother for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit by the plaintiffs, as heirs of I-Ienry 0. Terrell, deceased, against Elbert Gantt, as surety on the'bond- of Thomas C. Anderson, given for his faithful administration and accounting as curator of the succession of said deceased.

The plaintiff’s having been recognized and put in possession as sole heirs of Terrell, took proceedings to compel an accounting by Anderson, and, in due course of law, obtained a judgment against him for $2,960, with legal interest on one-third thereof from December 26th, 1866, on one-third from December26, 1867, and on one-third from July 26th, 1868. After a futile effort to execute this j udgment by fi. fa., which was returned nulla Iona, they instituted this suit against his surety.

From an adverse judgment, the surety appeals and makes the following points, which -we shall consider in their order:

1. The incoinpetency of the District Judge, because of interest in the cause, and because of his having been counsel therein.

It appears that in 1867, the Judge, then a practicing attorney, was appointed by the probate court as attorney of absent heirs of Terrell. He qualified and served as such until his appointment as Judge, and received in 1867 from Anderson, curator, the sum of $50 as his fee therefor.

When the present action was instituted, the defendant in his answer claimed that, on whatever amount might be awarded against him, he should be allowed credit for various legal costs, fees and charges paid by Anderson as administrator, specifying, among other items, fifty dollars paid G-. W. Hudspeth, attorney of absent heirs.”

It thus appears that, at the inception of the suit, the defendant was fully aware of the relations of the Judge to the cause, upon which his present charge of ineompetency is based. Nevertheless, without objection, he joined issue and, in fact, expressly asked the Judge to pass upon the very question as to whether the payment made to him “ was properly or improperly made, and whether defendant should or should not be allowed a credit for it,” which question is the sole ground of personal iuterost urged in his subsequent pleadings as cause for recusation. The case, a long and difficult one, involving a transcript of 593 pages and occupying three days in its trial, was tried by jury and resulted in the verdict and judgment agaiust. the defendant.

Then defendant made application for new trial, on the grounds of error in the charge to the jury and also of incompetency of the Judge on the two grounds above stated : 1st, that he had been of counsel; 2d, personal interest in the manner heretofore stated in the very language of the application for now trial.

The Judge overruled the motion for new trial.

We are now told by the counsel for defendant, that the Judge had no right to pass upon the motion, under the authority of State ex rel. Tyrrell vs. Judge, 33 An. 1293. The inapplicability of that case is manifest. No objection was made to the Judge’s passing on the motion for new trial. On the contrary, he was expressly asked to grant a new trial. There has not, in fact, been any recusation of the Judge by the defendant. He has merely moved for a new trial, and submitted it to the Judge for determination, with the expectation, no doubt, of recusing him on the new trial, if granted. He had the right to decide the motion, or, at least, it does not lie in defendant’s mouth to deny it.

The contention of defendant, that the effect of Act 35 of 1882 is to destroy absolutely the competency of Judges lying under any of the causes of recusation there stated, in such manner' as to render absolutely null and void their proceedings, and to make such defect of competency incurable, even by consent of parties, is untenable.

That Act, by its terms, merely amends and re-enacts Art. 338 of the Code of Practice, and the Article, as thus amended, resumes its place by the side of the other Articles of the Code on that subject, and all must be construed together. It is obvious, that it refers only to recusation by the defendant defined in the previous Article, and leaves the power of the Judge to recuse himself, as stated in the subsequent Article 340, and as it has always stood. The power of the defendant to waive this absolute right conferred upon him cannot be questioned. His right to act arises whenever he discovers the cause of recusation; but when, as in this case, he submits his case to the Judge, with full knowledge of the cause of recusation, and asks the Judge to pass upon the very question in which he afterwards claims he is interested, the authority of the Judge cannot, after judgment, be questioned.

In justice to the District Judge, we would say that it is apparent he was never employed or consulted as advocate in the cause,” in the language of the 3d paragraph of Act 35 of 1882, and that he is not interested in the cause.

2. The prescription of ten years is pleaded, which defendant seems to claim should run, as against the surety, from the date of the bond.

All personal actions are prescribed by ten years, unless otherwise limited ; but, obviously, the prescription only runs from the time when the right of action accrues. In the case of judicial sureties, by the express terms of Art 3066, C. C., and Section 19, Revised Statutes, the right of action does not arise against them until the necessary steps have been taken to enforce payment against the principal. Such necessary steps include suit, judgment and execution. Thereis no pretense that the proceedings against the principal were barred at the time when they were taken and, therefore, the plaintiffs were in their l'iglit when they so proceeded. Only thereafter did the right of action against defendant arise, and the same is not prescribed.

3. It is urged that plaintiffs did not take the necessary steps to . enforce payment ” against Anderson, before bringing the suit against the surety.

We have not only the sheriff’s return on the Ji. fa., but other evidence fully satisfying us that Anderson is insolvent, and has no property not under seizure and mortgaged beyond its value.

This is sufficient to justify recourse on the surety. Alley vs. Hawthorn, 1 An. 122; Wells vs. Roach, 10 An. 543; Bourgeat vs. Adams, 11 An. 78; 14 An. 235; 23 An. 573; 26 An. 542.

The authorities quoted exclude the idea, that amongst the necessary steps ” contemplated by the law, the plaintiffs were bound to resort to the remedies of imprisonment or distringas, under Arts. 1012 and 1058, C. P., the latter of which, however, has no application in this case.

4. The final error assigned by defendant is, that the judgment is excessive both as to principal and interest.

The bond in this case was given in pursuance of Articles 1126 and 1127, Civil Code. The amount of the bond was left in blank; but it is well settled, that judicial bonds are to be construed by the laws under which they are given, and that any clause which is superadded must be rejected and any which is omitted, supplied. Slocomb vs. Robert, 16 La. 174; Webb vs. Thorn, Id. 196.

This principle has been applied to the interpolation of the amount fixed by the law, when that has been omitted from the bond. Mason vs. Fuller, 12 An. 68.

The Art. 1127, C. C., fixes the amount of the curator’s bond at one-fourth over and above the amount of the inventory, bad debts deducted.

The amount of the inventory in Terrell’s succession was $1,487, adding to which one-fourth gives $1,848.75 as theamountfor which the bond sued on was given. This is unquestionably the limit of the surety’s liability. We are unable to comprehend the force', or even the meaning of the argument, that the surety can be held liable beyond the amount of his bond. The proposition is certainly startling and, though gravely urged, is not supported by authority. The terms of the bond, the nature of suretyship, and limitation of amount fixed by the law itself, absolutely negative the claim.

We consider defendant’s liability to the full amount of his bond is clearly established in this case, Anderson’s defalcation exceeding this amount, even after allowing all the credits claimed in his behalf. On this debt of the surety, as on all other debts, legal interest runs from the time it became due.

When did it become due? Only after the “ necessary steps” had been taken against the principal, up to which time no demand could be made on the surety for anything, and he was in no manner in default. We think the interest is only allowable from the date of the sheriff’s return on tliejft. fa., viz: May 1st, 1882.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended, by reducing the amount thereof to the sum of eighteen hundred and fifty eight 75-100 dollars, with legal interest thereon from May 1st, 1882, and that, as thus amended, the same be now affirmed, defendant to pay costs of the District Court, and plaintiffs and appellees to pay those of this appeal.


author: Manning, J.

text:
    No. 1191.
    J. G. St. Julien vs. Morgan Louisiana & Texas Railroad Company.
    One who permits a railroad company to occupy and use his land and construct its road thereon without remonstrance or complaint, cannot afterwards reclaim it free from, the servitude he has permitted to be imposed upon it. His acquiesence in the company’s taking possession and constructing its works under circumstances which made imperative his resistance, if he ever intended to set up illegality, will be considered a waiver. But while this presumed waiver is a bar to his action to dispossess the company, he is not deprived of his action for damages for the value of the land, or for injuries done him by the construction or operation of the road.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette; Clegg, J.

      M. JC. Girard for Plaintiff and Appellee.

      H. L. Garland and Leomj dé Kruttsehnitt for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The suit appears to be petitory and for rent of the plaintiff’s land occupied and used by the defendant Company as a road bed for its railway. The allegations are that the Company entered upon the land in July, 1879, without the plaintiff’s permission or consent, and without purchasing or expropriating it, and constructed its railway, and has since continuously operated it. There is coupled with it a claim for damages for killing stock, which was so vaguely framed, that on exception it was eliminated.

The plaintiff’s father in 1852, by act under private signature, gave the right of way over this land to the New Orleans, Opelousas & Great Western Railroad Company which threw up a road bed across it in 1858 or 1859, but laid no rails or cross ties. The war of 1861-5 interrupted the further building of the road, and work was not resumed upon it. That Company became insolvent, and Charles Morgan, in March, 1870, bought at sheriff’s sale all its property, franchises, etc.,, and his deed was recorded in Lafayette Parish where this land is situated. It included the road built across the plaintiff’s land. Morgan sold to another company which commenced work at the lower terminus from Berwick’s Bay, but he became the owner of the road again, and transferred it to the defendant Company which, in 1879, laid rails and cross ties upon it, and has since operated it.

The plaintiff as a witness says that the Morgan Company did little additional work on the road bed made by the N. 0. & Opelousas Company, merely replacing dirt that had been washed away and making a culvert. He was, to use his own language, “almost daily on his place while the works were being done.” Construction men came and were there some days, and afterwards construction trains were working there. Quoting him again he “ remarked to the men in charge of tlie construction train, that if they had a right to haul my dirt away they might do it, but if they had not they must stop and they did stop. I told them I had no objection to their taking the dirt thrown by the Opelousas Company but not to widen the ditches. * * When they were laying the rails and cross ties upon the road bedl made no objection. I did not then know the inconvenience of having a railroad through my place. I was at that time a railroad man, in favor of railroads. I did not at that time intend to charge for the right of way, until I found out that they did not put up the cattle guards properly and allowed my stock to get out. I am not positive, I believe I talked to a lawyer about an injunction to be protected in my property.”

It is unnecessary for us to say or intimate how or whether he would have been protected had he done more than talk to a lawyer. Certain it is he did not invoke the arm of the law at the time when it could have been of service to him, but on the contrary acquiesced in the defendant’s taking possession and using his property, encouraged it to prosecute its work by abstaining from any attempt to prevent it, and made no complaint in a court of law of the injuries inflicted upon him until the defendant had expended large sums of money in completing its line. Having thus permitted the use and occupancy of his land and the construction of a qiiasi public work thereon without resistance or even complaint, he cannot afterwards require its demolition, nor prevent its use, nor treat the Company erecting it as his tenant. He is not debarred from an action for damages by reason of the taking of the laud and for its value, but having acquiesced in the entry and encouraged if he did not invite it, he cannot afterwards affect to treat it as tortious. Considerations of public policy, not less than the suggestions of natural justice, require that in such case the owner shall not be permitted to reclaim his property free from the servitude lie has permitted to be imposed upon it, but shall be restricted to his right of compensation. Goodin vs. Cincinnati, 18 Ohio, 169.

The question has been treated by the text-writers who exhibit no difference of opinion upon it. Mr Pierce says: “the land owner may even by parol waive the right to prepayment as a condition precedent to an entry for construction, but having waived it he cannot treat the Company’s possession as unlawful. * * * A land owner’s delay in enforcing his rights does not effect a waiver of his right to prepayment; but a clear acquiesence in the company’s taking possession and constructing its works, under circumstances making it his duty to resist the entry, if he intended afterwards to set up that it was illegal, will be treated as a waiver. The waiver, however, while depriving him of the right to dispossess the company, does not deprive him of the right to damages under the special remedy.” On Railroads, J69.

If the Company had made an unlawful entry to construct its road, if would be liable in an action of trespass for the injury accruing therefrom, and the satisfaction of this judgment would not have the effect of making the appropriation legal, as would the payment of the award in proceedings for condemnation, but the Company would remain liable to successive actions of trespass for the continuing nuisance, Ibid. 230, or to successive actions for the recovery of rent for continuing use of the land.

And to the same effect is another writer:

“ The owner may by his conduct waive his right to prepayment of damages. The courts should not be ingenious in drawing inferences of a waiver, where corporations are to be benefttted, which would be scouted where natural persons are concerned. The fact that the public would be discommoded by the owner’s persistence, adds nothing to the presumption of the waiver. The public have no interest in a completed public improvement, which should cause the rights of the owner of land tobe disregarded. Slight acts of acquiescence on the part of the owner will estop him from interfering with the running of a railroad. He will not be deprived of his claim for damages, or his right to enforce it in all proper modes, but if he has, in any sense, for the shortest period, clearly given the corporation, either by his express consent or by his silence, to understand that he did not intend to object to tlieir proceeding- with the construction and operation, he cannot, on non-payment of compensation, maintain ejectment. If there was a waiver in fact, either express or implied, by acquiescing in the proceedings of the Company, to the extent of not insisting upon prepayment as a condition precedent, but consenting to let the damages lie and remain a mere debt, with or without a lieu upon the road bed, then it is impossible to regard the corporation, in any sense, in the light of trespassers, or liable in ejectment.” Mills on Eminent Domain, §140.

While we have said the action appears in some sort to be petitory, and was treated as such by the lower Judge and was thus argued by the defendant’s counsel, there is not any allegation or prayer assimilating it to the common law action of ejectment.- The complaint is that the Company entered the lands without the owner’s consent, without buying or offering to buy, or expropriating them, and that it should not expect nor be permitted to use his property without some compensation, but should be prohibited from trespassing upon it, and he claims therefore one dollar per day for its use. The suit is of a nondescript, or rather hybrid character, hut it is substantially a demand for rent, which we do not think he can maintain hut must be remitted to his action for compensation.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, with reservation of the plaintiff ’s right to sue for compensatory damages for the taking possession and conversion of his land to the defendant’s use, and that the defendant have and recover its costs in both Courts of the plaintiff herein.