text:
    No. 657.
    McLear & Kendall vs. Succession of J. L. Hunsicker.
    A motion to strike out the answers oí a witness, as irrelevant, or not responsive, should be passed On by the court separately, as a preliminary matter, and not referred to the merits.
    The answers of witnesses, if practicable, should amount to mere admissions, or denials. Every thing additional will be stricken out, except such statements of fact as are explanatory of, and “closely linked” with the Questions propounded.
    In the absence of proof to the contrary, it will be presumed that notaries of other States have no greater powers than are possessed by those of this State.
    When extracts from commercial books are ordered by a court, they must be literal transcripts from the books, not accounts based on the books.
    APPEAL from the Fourteenth Judicial District 'Court, parish of Ouachita. JRay, J. ,

      Franklin Garrett, for plaintiffs and appellees.

      Morrison <& Farmer, for defendant.
   On Eehearing.

The opinion of the court was delivered by

Manning, C. J.

This suit is upon four promissory notes. The defense is payment, to sustain which the defendant propounded interrogatories to the plaintiffs.

The first is — “ Examine the fourteen letters and two receipts hereto annexed. Was not each one of said letters and receipts written by your firm or by direction of your firm ?” The answer of each plaintiff covers fifteen pages of the transcript. It commences : “ Each of the fourteen letters and two receipts was written by the firm of McLear & Kendall or by their direction, under the following circumstancesand then follows a narrative of all the business transactions between plaintiffs and defendant’s intestate, commencing two years before the first purchase that is included in this suit. All the facts, events, and circumstances are recited with amazing amplitude of detail; rules of law governing the imputation of payments are announced, and copious quotations from the correspondence of the parties are inserted. It is, in fact, such a statement of their case as is appropriately placed in what we call a “ brief,” or written argument on the facts and the law.

The defendant moved to strike out the whole answer, save only the first two lines, ending with the word “direction,” on the ground that the answer is not responsive to the interrogatory, and this motion was referred to the merits. This was improper. The motion was a preliminary to the trial, and should have been heard and decided before that began. The defendant’s reserved bill requires us to review the further question whether that part of the answer to which she objected should have been stricken out.

In answering a question, the interrogated party must simply confess or deny the fact, but may nevertheless state some other facts tending to his defense, provided they be closely linked to the fact on which he has been questioned. Code of Practice, art. 353. The scope and meaning of this descriptive phrase “closely linked,” as defining the relation which the facts stated bear to the fact about which the party is interrogated has received numerous adjudications. Jocum vs. Roy, 3 Martin, 410; Wells vs. Hickman, 6 Rob. 2; Baker vs. Garlick, 9 Rob. 127; Smith vs. Richardson, 11 Rob. 518; Williams vs. Vance, 2 Annual, 910; Hoover vs. Miller, 6 Annual, 205; Owen vs. Brown, 13 Annual, 201. If the answer states a distinct and separate fact from that upon which the interrogatory is based, and not necessarily connected with it, or if he states a legal consequence following upon facts, the answers will be excluded, and, a fortiori, will the answer be stricken qut where a series of acts, in no way connected with or linked to the manual signing of a paper, are detailed with an intent too obvious'to be mistaken. The motion of the defendant should have been sustained.

Notwithstanding the expressions used by this court in ordering objectionable parts of answers to be “stricken out,” the plaintiffs’ counsel contends that it can not be done, but only that such objectionable parts may be disregarded. And he bases this upon another proposition — that the answers to interrogatories on facts and articles form part of the record, and need not be offered in evidence. This last is indisputable, but it means that those answers only form part of the record which are held and received by the court as legal and proper answers. When this court uses and repeats the expression, that answers or parts of answers are ordered to be “stricken out,” the meaning is that the clerk should not copy them in the transcript, even with lines drawn across them as was done here. And the plaintiffs anticipated this manner of executing the order of the court, as is apparent by their attaching the excluded answers to a bill of exceptions, taken to the refusal of the judge to permit them to offer those answers in evidence.

It is apparent that if the plaintiffs could not be permitted to go beyond the limits of a responsive answer to the interrogatory which probed their conscience, they could not use the excluded answers of themselves as original testimony, and the court properly excluded them. There is little excuse for a party, interrogated on facts and articles, now to go beyond, or to attempt to go beyond, a categorical answer, or the statement of facts closely linked with that about which he is asked. When this form of obtaining the statement of' one’s adversary in a suit at law was introduced in our practice but few persons had conceived, and still fewer would have approved, the innovation of permitting a party to testify in his own behalf. When a profound thinker first startled the légal profession with the enunciation of this as a proper rule to apply to the investigation of legal contestations, it was pronounced a heresy with exceptional unanimity. So rapid has been the progress of legal reform in that direction that not only were parties permitted to testify in our courts when both were alive and presently the law of 1867, but even when the lips of one had been sealed by death, the law of the following' year (Acts 1868, p. 269; Oivil Code, art. 2260 as amended by new number 2281), permitted the surviving adversary to testify — an enlargement of the rule the sound policy of which may well be doubted, and which is at variance with the reason on which the rule is founded.

The plaintiffs had but to take their own testimony under commission, when they found their debtor was restricting their freedom of reply by binding them with the legal withes of a peculiar and technical kind of interrogatories.

The defendant now moved that the plaintiffs produce in court extracts from their books, or sworn copies of their accounts with him, and this was granted. A few days afterward the plaintiffs filed these extracts and copies, from which it appeared that the oath, by which they were verified, .was administered by one Publ, a notary public, who also signs as commissioner, and in the recital of his jurat states himself to be special commissioner appointed by the court of Ouachita to take the oath of plaintiffs.

There is neither order of the .judge, designating him as special commissioner by name, nor commission addressed to him as such, and therefore his power to receive the oath would rest upon his official capacity as notary public. We must assume that notaries in Delaware could only do such official acts as notaries could do under our law, there being nothing shown to the contrary, and it was not until the present year' that those officers were empowered to receive oaths or acknowledgments. Acts 1877, p. 10.

The defendant, treating the copies filed by plaintiffe as having no legal existence, by reason of their want of a legal affidavit, moved the court to take the statements of her own affidavit of what she expected to prove as confessed. Her affidavit had disclosed what she had expected to prove by the copies which she was calling for. The court refused her motion, and she complains.

The rule of law which permits a party to take his own averments and allegations pro confessis when his adversary is derelict in not complying with the order of court is made to prevent any delay or evasion of a compliance with that order. In this case the plaintiffs had complied with extraordinary celerity, and had furnished defendant with what purports to be the account of the parties, and the incapacity of the officer who administered the oath was the objection to it as a proper compliance with the order.

Another ground for the motion was 'that the papers filed by the plaintiffs were not extracts from their books,-nor sworn copies thereof, but a statement of accounts. An examination of all of the accounts thus filed countenances this allegation, but does not substantiate it. The plaintiffs are not permitted to restate their account with the defendant, or to put it in the shape they think it ought to be, but they must comply with the •order which calls for extracts from or copies of their books. It is the account as it appears on their books, with all the mistakes of their bookkeeper, that is wanted, and that must be supplied. It is probable that the books will show that the cheque on Bethlehem bank for five hundred dollars'was credited on the first-maturing note in this suit, as it ought to be, since the plaintiffs’ letter distinctly imputes the payment then made to that note. The evidence in this record satisfies us that the plaintiffs are not entitled to the judgment awarded them in the lower court, and the last letter written by the deceased to his creditors equally shows that the judgment of our predecessors in favor of the defendant is not correct.

On the last day of April, 1873, Hunsicker wrote the plaintiffs: “ I could not blame you for being angry with me for not lifting the notes you hold against me. I have tried in vain thus far to raise any money. I have offered heavy interest, but the money is not in the country. * * * I own some fine property, there is no better in this place, but I could not to-day sell for half its value. I am under many obligations to you for waiting on me so long, and God knows that I would not swindle you out of one cent. If I die, you are'bound to be paid. Yours is a debt that I will pay if I never pay any others.”

This is not the language of a man who owes nothing to. the person to whom he is writing, and it is only the fact that he owed nothing that could justify a judgment in his favor. He died three months afterward.

We shall remand the case. Our review of the rulings of the district judge will enable the court that shall hear the new trial to dispose properly of such issues, if they shall be raised again, and as the new transcript will contain nothing but the pleadings, process, and the testimony of that trial, with the orders and judgment and minutes of the court, or, in other words, will not be incumbered with the evidence in this record, we shall be able to arrive at a juster judgment than we can now pronounce.

It is therefore ordered, adjudged, and decreed that the decree heretofore rendered by this court, and the judgment of the lower court, are avoided and reversed, and the cause is remanded to the district court to be heard anew, and to be proceeded with according to law, the plaintiffs and appellees to pay costs of appeal.


source: Caselaw Access Project

author: Mare, J.

license: Public Domain

text:
    No. 739.
    The State vs. James Atkinson.
    Persons on trial for alleged crimes have a right to demand that all of the regular venire of jurors present, and not then engaged on other jury duty, shall be submitted to their aeeeptanee, or rejection, before talesmen are resorted to for the formation of juries.
    APPEAL from the Seventeenth Judicial District Court, parish of Natchitoches. Pierson, J.

      W. P. Hall, District Attorney, for the State.

      C. P. Dranguét and J. P. Smith, for defendant and appellant.
   The opinion of the court was delivered by

Mare, J.

The accused was indicted, tried, and convicted of assaulting R. W. Allison, by willfully shooting at him. Having' been sentenced to imprisonment in the penitentiary, at hard labor, for one year, he has brought the case before us for review.

The only question for our consideration is that presented by the bill of exceptions as to the formation of the jury.

The case was reached late in the evening of the day on which it had been fixed for trial. Two juries were then out in oases in which, verdicts ’had not been rendered, and there were, on .those two juries, five only of the regular venire. The accused announced himself ready for trial, and the sheriff proceeded to. call the jury. Eour only of the venire answered,, and the names in the box were exhausted. Thereupon the judge ordered the sheriff to summon twenty-six talesmen, to be in attendance the next morning at nine o’clock; and the court adjourned to that hour.

. When the court met next morning, and the trial was resumed, the two juries that were out when the court adjourned the evening before had been discharged, and the five veniremen who had been on those two juries were present in court. The sheriff began to call the talesmen, in order to complete the jury, when the counsel for the accused objected, . and moved the court to order the sheriff to call into the jury-box the five . veniremen in question. The judge refused to do this, on the ground that the talesmen and the four regular jurors who had answered to their names constituted the lawful j ury for the trial of the case, and not the rest of the regular panel, who had not answered; and he ordered the sheriff to call the talesmen. The jury was completed, being composed of one of the four veniremen, who had been called the évening before, and eleven men chosen from the talesmen, who had been summoned by order of the court.

The accused reserved his bill of exceptions; and, after a verdict of guilty, with a recommendation to the mercy of the court, he moved for a new trial, on the same ground, that the talesmen could not be resorted to until after the veniremen in court had been called.

The judge proceeded under the act of 1873, section ton, page 168, which is as follows:

“ When the regular venire shall have been exhausted, and it is necessary to summon talesmen, it shall be competent for the district judge to determine how many shall be summoned, at what time the summons shall be returned, and from what part of the parish they shall be. summoned; and he shall not be required, when, in his opinion, the public interests may suffer from so doing, to order, the talesmen to be summoned from among the bystanders or persons in proximity to the court-house, but he shall have the discretion to order the talesmen from any part of the parish he may deem best.”

The sheriff had called all the names in the box, and the regular venire had been exhausted. Obviously, it had become necessary to summon talesmen. It can not be questioned that the judge might have directed the sheriff to call the bystanders, those who were in the court-room and such persons as might have been outside in proximity to the court-house. Possibly, the jury might have been completed, and if it had been so completed, there can be no doubt it would have been legally formed. The judge could not know when the two juries that were out might find verdicts and be in court; and he could roly on four only of the regular venire who had answered to their names. A due regard for the public interest, as well as for the right of the accused to a speedy' trial, by an impartial jury, required the judge to order a sufficient number of talesmen to be summoned to secure the completion ojE the jury, and so to fix the time for the return of the summons as to enable the sheriff to have in attendance more suitable persons for that service than ho would probably have found among the idle spectators in the court-room, or those who might be loitering about the court-yard.

If, at the opening of the court next morning, the two juries had still been out, it would have been the duty of the court to proceed to have the talesmen called and the jury completed. But the state of things which existed at the time of the adjournment the evening before had ceased to exist. The two juries had completed the service in which they were then engaged, and were ready for service as regular jurors for that term.

The act of 1873 evidently contemplates and intends that the venire summoned in accordance with its provisions shall, as far as it may be practicable, porEorm the entire jury duty of the term for which they are summoned.

After directing how the names of the persons to be summoned as jurors shall be drawn, section five declares that “the persons whoso names have been so drawn shall he the jury for the said court.” It requires the list, so soon as completed’, to be preserved in the clerk’s office, “ open to inspection,” and to be published ifi at least three issues of the official journal, if one be published in the parish, or any other paper, or posted at the court-house door if there is no official journal or other paper published in the parish.

The object is, undoubtedly, to give all parties interested an opportunity to know who will compose the jury at the ensuing term, and to ascertain their fitness to serve in that capacity. Parties accused have the right to demand that they shall be tried by jurors selected from this list, if practicable, and that other persons, talesmen, shall not be resorted to until after the regular venire shall have been exhausted.

When the court met four of the venire had already been called and were in the jury-box, and five others, who were absent when the call was made, were present, not excused by the court, and not engaged in jury duty. It was the right of the accused to have all of the regular venire in attendance presented to him for acceptance or rejection; and as the. five'who had not answered the evening before were then in attendance, the regular venire had not been absolutely exhausted, and they should have been called first, and the talesmen should been called only after all' of the regular venire in attendance had been called and the list had been actually, absolutely exhausted.

The court need not wait, should not wait, when the names of the regular venire have once boon called; but if, before the talesmen are called and the jury completed, members of the regular venire who were not present at the first calling come into court, they should be called, and the jury completed from them if practicable. Manifestly, the jury could not have been completed without calling the talesmen; but the accused was entitled to have as many of the venire on the jury as might be found qualified and should not bo challenged. We seo no reason to doubt that the talesmen were proper persons and suitable jurors; but we do not think it safe, in criminal cases, to compel the accused to submit to a trial by any other than a jury selected from the regular venire, where such a jury can be impaneled; and no right which the law has given to the citizen, no safeguard which has been provided for the protection of life, or liberty, or property should be disregarded by the judicial tribunals.

We think our learned brother of the court below erred in refusing to have the five veniremen called into the jury-box before resorting to the talesmen.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, apd reversed; that the verdict of the jury bo set aside, and that the case be remanded to be proceeded with according to law. **


author: Manning, C. J.

text:
    No. 704.
    G. M. Bayly & Pond vs. E. A. Givens, Sr.
    .Article 326 of the Code oí Practico which provides thatií a defendant denies his signature oí the instrument he is sued on. ho shall n t, if his signature is proven, he allowed to set up any other defense, only applies when the instrument sued on purports to he signed by the defendant himself. It does not apply when the instrument is signed by one assuming to bo the agent of the defendant.
    APPEAL from the Eleventh Judicial District Court, parish of Lincoln. Trimble, J.

      JR. W. & R Richardson, for plaintiffs and appellees.

      Gaskins & Barksdale and J. 8. Young, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

This suit is brought by the commercial firm of G. M. Bayly & Pond, of New Orleans, against E. A. Givens, Sr., of Lincoln parish, and is founded on a draft alleged to have been drawn by E. A. Giv■ens, Sr., per pro. B. C. Alexander, on W. Morrison & Co., for $2550, in favor of B. O. Alexander, accepted by Morrison & Co., and indorsed B. C. Alexander, in blank, dated New Orleans, April 19,1873, and due ten months after date. It is alleged by plaintiffs that they are the owners -and holders of the draft, having acquired the same for a valuable con■•sideration; that E. A. Givens, Sr., by his duly authorized agent, B. O. Alexander, executed the draft; that at maturity the draft was not paid, the drawees having no funds of the drawer in hand, and that demand .and protest were waived with the knowledge of the drawer.

The defendant filed what he termed a peremptory exception and an•swer, in which he pleads that “ had he drawn such draft as that sued on, or caused the same to be drawn, he was entitled, under the law, to notice of protest and dishonor,” which he avers was not given. He then denies ■signing, or causing to be signed,'the draft; denies that he authorized B. O. Alexander, or any one else, to sign the draft, either verbally or in writing. He alleges that Alexander never was authorized for such purpose; that the signature to the draft does not appear to be the genuine handwriting of B. G. Alexander, and ha denies that Alexander ever signed it. Defendant avers that he never heard of the pretended execution of the draft till long after its maturity; that he has no knowledge of any cause or ■consideration for the same; that the draft is a forgery, and an attempt •on the part of plaintiff and W. Morrison & Go. to extort money from him, defendant, illegally, unjustly, and fraudulently.

Defendant afterward filed an amended answer and prayer for a jury under oath. ' '

On the trial the’lower court refused to allow the defendant to offer evidence in-support of any part of his defense except that of forgery, holding that the only issue was forgery or no forgery, and that under an express law the defendant whose signature shall have been proven after his having denied the same shall be barred from any other defense. Code of Practice, article 326. We think the judge misapplied that law. The Code of Practice prescribes that when the demand is founded upon an obligation, or an act under private signature, which is alleged to have been signed by the defendant, such defendant shall be bound in his ■answer to acknowledge expressly or to deny his signature. Code of Practice, article 324. Then follows that other provision that the defendant whose signature has been denied shall, upon its being proven, be barred from every other defense.

The reason, equally with the letter, of these articles of the Code, limits their application to cases where the signature of the defendant himself is the matter denied. The expression used is, an act “ alleged to have been signed by the defendant,” and it is Ms signature that he must acknowledge or deny. The article treats of the defendant whose signature has been denied by himself, and manifestly means the personal signature of .the party who is denying its genuineness. No man can honestly plead ignorance of his own signature, but he may well be ignorant of that of his agent. It is not reasonable to suppose that the law would require a man to know the signature of his agent with the absolute certainty that he knows his own. Men often have agents whom they have never seen write, and whose signatures they have never seen. The provision of the article is punitory in its character, and it would be contrary to all rules of interpretation to extend it by implication or analogy to eases not clearly within its terms. This view is strengthened by and is in harmony with the similar provision of the Civil Code that the person against whom an act under private signature is produced is obliged formally to avow or disavow his signature, but the heirs or assigns may simply declare that they know not the handwriting or signature of the person they represent. Article 2240 (new No. 2244).

These views are conformed to what was said by this court in 184S at this place, i. e., that the penalty established by these articles is imposed by its terms upon the party who denies Ms signature, and should not be extended by implication. Bradford vs. Cooper, 1 Annual, 325.

Justice to both parties requires the case to be remanded.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that this cause bo remanded to be proceeded with in accordance with law and the views herein expressed, and that appellees pay the costs of appeal.


text:
    No. 741.
    Mechanics’ Building Association vs. C. L. Ferguson. J. B. Pugh, Third Opponent.
    The pledge or salo o£ a negotiable instrument beforo its maturity carries with it all the liens by which the instrument is secured, and by such sale, or pledge, the transferee divests himself of all power to affect the liens which secure the instrument.
    The unauthorized cancellation of a mortgage by the recorder of mortgages, can not impair any rights of the owner of the mortgage.
    A PPEAL from the Tenth Judicial District Court, parish of Caddo. Ü. Looney, J.

      ■W. H. Wise, for plaintiff and appellee.

      J. B. Slattery, for defendant.
    21 Alexander and JS. B. Herndon, for third opponent.
   The opinion of the court was delivered by

Manning, C. J.

In November, 1874, one Erank borrowed a sum of. money from J. B. Pugh, and executed his notes for its payment, and at the same time delivered to Pugh in pledge, and as security, two notes of the defendant, Eerguson, for eight hundred dollars each, dated March 14,1874, and payable to Prank’s order one and two years after their date, which were secured by a special mortgage and the vendor’s privilege on two lots in Shreveport. In March, 1875, Eerguson, being about to execute a mortgage to the plaintiff upon the same property, procured from Frank a waiver of his precedence, and agreed that the plaintiff’s mortgage should prime his. Upon the foreclosure of plaintiff’s mortgage, and the sale of the property, Pugh filed a third opposition to the payment of the proceeds of sale to the plaintiff, and claimed them for himself to an amount sufficient to satisfy the two notes held by him.

The lower court held that Frank’s waiver was effectual, and displaced the mortgage which secured the notes pledged to Pugh. We do not think so.

It is well established that the holder, transferee, or pledgee before maturity of a negotiable promissory note as collateral security is entitled, ■to the extent of his debt, to all the rights of a bona fide holder for value, and is for all practical purposes the owner of the obligation. King vs. Gayoso, 8 New Series, 370; Nott vs. Watson, 11 An. 664; Bank vs. Gaiennie, 21 An. 555. When a debtor wishes to pawn promissory notes, stocks, etc., he shall deliver them to the creditor, and such pawn so made with•out further formalities shall be valid as well against third persons as against the pledgers thereof, if made in good faith. Civil Code, article 3125, new number 3158.

“ When the bill or note of a third party, payable to order, is indorsed ■as collateral security for a debt contracted at the time of such indorsement, the indorsee is a bona fide holder for value in the usual course of business, and is entitled to protection against equities and offsets and other defenses available between antecedent parties, provided, of course, that the bill or note transferred as collateral security is itself at the time not overdue. And the same principle applies when the collateral bill or note is payable to bearer, and is transferred to the creditor by delivery. This doctrine rests upon clear grounds. There is an evident present consideration for the transfer of the collateral bill or note; a present change in the legal rights of the parties. And the text-writers, supported by an almost unbroken train of decisions, agree that the indorsee is entitled to protection to the extent of the debt secured.” Daniel’s Negot. Instruments, sec. 824.

And that the .holder and pledgee of the notes in this case held also the rights under the mortgage which was a security for their payment is equally clear. “ The assignment of a debt, by whatever form of transfer, carries with it any bill or.note by which it is secured; and the trans-fer by indorsement or assignment of a bill or note carries with it all securities for its payment, whether a mortgage or otherwise.” Idem, section 748.

The sale or transfer of a credit includes every thing which is an accessory to the same, as suretyship, privileges, and mortgages. Civil Code,, art. 2615, new number 2645.

The mortgage is accessory to a principal obligation, which it is designed to strengthen, and of which it is to secure the execution. Civil Code, article 3251, new Dumber 3284.

The transfer a negotiable note by indorsement operates a transfer of any mortgage given to secure it. Auguste vs. Renard, 3 Rob. 389; Perot vs. Levasseur, 21 An. 529.

The plaintiff contends that the waiver by Frank of his antecedent mortgage gave the precedence to that just then executed in favor of plaintiff; but Frank had parted with the possession of the notes, and had not the right to deprive his transferee of the accessory security. The holder of mortgage notes, payable to order and duly paraphed, alone-has the right to raise the mortgage, or release the privilege given to secure their payment, and the recorder has no right to cancel the mortgage without the production of the -notes themselves, and upon the order of the holders thereof. Civil Code, article 3345, new number 3382. The erasure and cancellation of a mortgage by the recorder will not bind the mortgagee when it has been done without his knowledge or consent, and he may enforce his rights under the mortgage against the property mortgaged. . He may show that the certificate is untrue, and that the recorder acted on insufficient evidence, and without his consent. Dreux vs. Dacourneaux, 5 Martin, 625; Lafarge vs. Morgan, 11 Martin, 525; Macarty vs. Landreaux, 8 Rob. 130. These enunciations of legal principles are made in the language of the Code, and the decisions of this-court through a series of years, and justify the claim of the third opponent to be paid out of the proceeds of the sale. But he can claim only the amount of the debt which Frank owes him, and to secure which the mortgage notes were pledged.

Therefore, it is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and it is now ordered and decreed that J. B. Pugh is entitled to bo paid the amount of the two notes of Frank, executed to him, for six hundred and seventy-two dollars and five hundred and sixty dollars, and interest thereon, and that the sheriff of the parish of Caddo pay such amount to the opponent out of the proceeds of sale of the mortgaged property, and that opponent recover of' the plaintiff the costs of his opposition in the lower court and the costs-of this appeal.

Mr. Justice Egan recused himself in this case.


text:
    No. 702.
    E. H. Cole, Administrator, vs. James Smith, Administrator.
    Farol evidence is admissible to explain that a party’s name on a negotiable instrument was not intended as an indorsement.
    APPEAL from the Twelfth Judicial District Court, parish of Cata- . houla. Taliaferro, J.

      Wade B. Young, for plaintiff and appellee.

      JBoatner & Mam, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The representative of Ranson Riddick’s estate is sued for his alleged liability as indorser of a promissory note.

J. A. White executed the note in favor of Riddick in payment of a. tract of land sold him. At its maturity White was unable to pay the whole sum due, and agreed with John Cole to sell him one half of the. land in consideration of his paying the residue of the note. Cole, White, and Ranson Riddick went to Noah Riddick’s house to perfect this arrangement and take up the note. Noah narrates the way in which it was done.

He was debtor to Cole for fifteen hundred dollars, about the sum still due on the noto, and gave a draft for it to the holder, Ranson Riddick, in payment of the note. This draft was paid, and Ranson was satisfied. Ranson then wrote his name on the back of the note, as is often done by a holder of a note or draft when payment is received... He is sued upon that indorsement, and when his representative offers to prove how it was made, for what purpose, the circumstances attending the act, and the intent of all the parties, he is met by the objection that parol evidence is not admissible to contradict or vary the terms of a written instrument.

The object of the testimony was to prove payment, and to explain that what was in appearance an indorsement in the legal and commercial sense of that word, was, in fact, a receipt. It has been often held that subh testimony was admissible for that purpose.' Frique vs. Hopkins, 4 New Series, 222; Peytavin vs. Maurin, 2 La. 481; Bethany’s case, 7 Rob. 61; Bouche vs. Michel, 10 Rob. 92; Saramia vs. Courrégé, 13 Annual, 25. ^t could not be otherwise. Courts of justice would bo a mockery if the rules of evidence applied by them excluded the ascertainment of the circumstances attending such a transaction as this, or permitted the holder of an instrument, delivered to him for a specific purpose, to make it available for another and wrongful one. Cole took possession of the note to hold it against the maker until the title to one half of the land should be made to him. As to Riddick, it was a receipt.

There was judgment for plaintiff. The testimony showing the real character of the legal act which resulted in Ranson Riddick writing his name upon the paper was improperly excluded. The authorities cited by plaintiff relate to a different prohibition.

It is therefore ordered, adjudged, and decreed that the judgment of the lower courtis avoided and reversed, and that there be now judgment in favor of defendant with costs of both courts.


author: Marr, J. Egan, J.

text:
    No. 728.
    J. H. Reinhold vs. John T. Ludeling et al.
    The members of a corporation, organized under the laws of this State, for the purpose of transporting persons or property for hire, are not liable individually, or in solido, for the obligations of the corporation executed by its authorized officers.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons*J.

      B. W. & B. Bicharclson, for plaintiff and appellant.

      Prank P. Stubbs, for defendants and appellees.
   The opinion of the court was delivered by

Marr, J.

This is a suit against John T. Ludeling, John Ray, Francis P. Stubbs. Wesley J. Q. Bakei', and William R. Gordon, to recover of them in sólido the amount of two promissory notes of the North Louisiana and Texas Railroad Company, one dated the first of January, 1871, payable one day after date, to the order of J. H. Reinhold, for two thousand dollars, signed “John Ray, president,” countersiged “Joseph F. McGuire, secretary;” the other dated the twenty-first of January, 1874, payable one day after date, to the order of George C. Waddill, for three thousand dollars, signed “ JohnT. Ludeling, president N. L. & T. R. R. Co.,” countersigned “Joseph F. McGuire, secretary.”

The petition charges that the defendants and their associates purchased at sheriff’s sale, on the third of February, 186C, all the property, rights, and franchises of the “ Vicksburg, Shreveport, and Texas Railroad Company,” and, after having operated the same as a railroad under the old name for a considerable length of time, they, the defendants, with others, Geo. C. Waddill, James M. Horne, and Wm. M. Pinckard, wore, by the provisions of act No. 108 of 1868, “ specially created into a body corporate and politic, for the purpose of constructing, maintaining, and operating a railroad and magnetic telegraph on the line of the railroad which had been purchased by them on the third of February, 1866, the road to be used for the purpose of transporting freight of every kind,, and passengers, the name and style of the corporation to be the North Louisiana and Texas Railroad Company,’ with domicile at Monroe.”

The petition goes on to charge that “ defendants, with their associates, did operate said road under that firm name and by authority of said act of incorporation; that John Ray and John T. Ludeling were presidents of said company and Joseph E. McGuire secretary on the respective dates that their names were affixed to the obligations in suit;” that they did run said railroad; that they did carry freight and passengers for hire; “wer e common carriers and commercial partners; and by their acts and declarations induced other third persons as well as petitioner to trade with them and accept their paper and written obligations, under the assurance that they (defendants) were bound in solido; that they so held themselves out to the world, and while thus associated as common carriers and commercial partners they executed and issued, by their duly authorized and empowered, officers, the obligations in suit, of which petitioner is legal holder and owner for a valuable consideration.”

The prayer is for judgment in solido against defendants for the amount of the two obligations, with interest as stipulated.

After exceptions to the service of the citations, which were overruled, and which need not be noticed, defendants answered, beginning with a general denial. They admitted that the notes sued upon were executed by “ the North Louisiana and Texas Railroad Company, a corporation incorporated by the General Assembly of Louisiana in the year 1868; but they deny that they are personally responsible for the obligations of said corporation.”

The judgment of the district court was in favor of defendants as in case of nonsuit. Plaintiff appealed; and defendants in their answer pray that the j udgment be so amended as to be final against the demand of plaintiff.

The capacity of John Ray and John T. Ludeling as successive presidents, and of Joseph E. McGuire as secretary, of the North Louisiana and Texas Railroad Company, and the genuineness of their respective signatures to the notes sued on were admitted.

It was also admitted that J. W. Greene, receiver, since the thirteenth of April, 1875, operated the road; that during the presidency of Ray and Ludeling, at the time the obligations sued on were executed, the road, while in operation, transported persons and personal property for hire.

There were other admissions and proof which require no special notice beyond the fact that J. W. Greene took possession of the road as receiver under the appointment of the United States Circuit Court; and that' none of the officers of the company had any thing to do with operating the road after Greene took possession. The allegations of the petition were proven substantially as charged, except that wo find no proof of any representations by defendants to the effect that they were bound in solido for the debts and obligations of the company.

The entire case of the plaintiff rests upon the theory that all persons who engage in the business of transporting persons and personal property for hire, that is, all common carriers, are commercial partners and as such bound in solido.

In Chaffe & Bro. vs. Ludeling et al., decided in 1875, reported in 27 An., which was a suit on an obligation like those sued on in this case, except that it was executed in November, 1866, nearly two years before the act 'incorporating defendants, our predecessors held that no other common carriers are liable as commercial partners but those who prosecute that business by the use of ships and other vessels; and that defendants, as an incorporated association, were liable jointly, and not in solido.

Ve are not prepared to assent to this doctrine; but under the view we take of this case it is not necessary to pass upon that question. It may not be out of place, however, to say that at the time the Civil Code was adopted the business of common carriers in Louisiana was confined almost exclusively to transportation by water. Moreover, it was intended at that time to adopt a “ Commercial Code,” and the frequent references in the Civil Code to the “Commercial Code” show plainly that the compilers of the Civil Code designed to deal with commerce in general terms only, and to defer to the “ Commercial Code ” for details and a complete system of commercial law. The “ Commercial Codo ” was not adopted, and the Civil Code contains but few rules of commercial law.

The character of a partnership must be determined by the object for which it is formed, the business intended to be pursued; and the Code characterizes as a commercial partnership that which is formed “ for carrying personal property for hire in ships or other vessels.” R. C. C. 2875. Manifestly, this is a mere .description, not a limitation, of the means and instrumentality by which a business or pursuit to which the law attaches the obligations of a commercial partnership may be conducted. A strict literal interpretation of the article of the Code would exclude common carriers of passengers only, and would illogically, without reason, attach more importance to the vehicle used than to the business for which it is used in determining the obligations resulting from. that business. But we need not pursue this subject, for the reason that it is not necessary to the decision of the case.

Several bills of exception were taken to the rulings of the court in admitting and in rejecting testimony on the trial. As the testimony offered was wholly immaterial, and could in no manner affect the rights of the parties, it is not necessary to pass on these rulings of the court.

Both the obligations sued on in this case are promissory notes of the North Louisiana and Texas Railroad Company in its corporate name and capacity, through its proper officers, under the act of incorporation. The petition fails to disclose any consideration whatever for these notes; and the ease stands solely upon the assumption that they are obligations of the corporation, executed and issued by its “ duly authorized and empowered officers,” and that' they import a sufficient consideration.

It is not possible to raise the question more distinctly or to present it more plainly and simply: “Are the members of an incorporated company, organized and established mainly for the purpose of transporting persons and property for hire, liable in solido, individually, as commercial partners, upon promissory notes of the corporation, executed and issued by its duly authorized and empowered officers ?”

Solidarity of obligation necessarily implies a plurality of obligors. The owners of ships and other vessels, who employ them in the transportation of personal property for hire, are liable in solido as commer-' cial partners with respect to that business; but it would bo quite idle, wholly without meaning, to say that the sole owner of a ship or other vessel, who employs it in carrying personal property for' hire, is liable in solido and as a commercial partner. Sole obligor, sole benoiiciary of his contracts and engagements, he alone is liable.

An act of incorporation makes the corporators, however numerous, one single juridical person, one single whole. The corporators no longer have individuality, so far as the relations of the corporation with others are concerned; and the several individualities are aggregated and merged into one creation of the law, the corporation which they compose. In all contracts, all dealings of the corporation, it is not the individual members who speak, and who act, and who bind themselves. It is the corporation, and the corporation alone; and the corporation is as truly a unit, one single juridical being and personage, as is individual man in his individual acts and engagements. If solidarity is not applicable to the single engagements of an individual doing business, whatever it may be, in his individual name, and for his individual account and benefit, how can that term apply to the contracts, and engagements, and obligations of a corporation not less a unit, not less one ?

A number of persons, associated for the carrying of personal property for hire, in ships or other vessels, do, either by special contract, or in legal intendment, form a commercial partnership, and they are bound in solido; but when the same individuals associate themselves under a charter of incorporation, they do not form a partnership, but do, by contract, and in legal intendment, form and constitute a juridical being, called a corporation; and if, in accordance with its organic law, the act of incorporation, this juridical being, this corporation, pursues the same business, there are no longer individuals contracting and engaging themselves, there is no longer an association which the laws calls a commercial partnership, there is simply one personage, one juridical being. The individual corporators are not bound; the single juridical being, the corporation alone, is bound; and it is bound in its aggregate capacity as ono personage, just as one individual man is bound by his single contracts and engagements.

These principles are elementary, and they are laid down and formulated in the Civil Code, chapter ten, in plain and unequivocal terms. The plaintiff contracted with the corporation, not with the individual members, as the notes sued on clearly prove; and he must seek his remedy against the corporation, his debtor, not against the individual members, who are hot his debtors.

The defendants are entitled to the amendment prayed for in their answer to the appeal. The notes sued on and the allegations of the petition show that these are the obligations of the corporation in its corporate name and capacity, by its “ duly authorised and empowered officers,” and not the obligations of the individual members; and the law, Revised Civil Code, article 437, declares that such obligations can be enforced only through the president and against the property and effects of the corporation. The corporation may be bound, its property and effects may be liable, for these notes; but the individual members are distinct from the corporation, and they are in no manner bound for its obligations. It would bo improper to render a decision in this case which would conclude the holder with respect to the corporation or its property, but he has no claim against the defendants, individuals who, with others, composed the corporation; and they are entitled to a final decree to that effect.

It is to no purpose to say that this corporation is not actively engaged in the business for which it was organized. If the individual members were not bound originally, it is difficult to perceive how they could become liable by a change in the condition of the corporation, by the loss of its property, by the suspension or discontinuance of its business, even by its dissolution. Creditors may proceed against the corporation, or they might provoke a liquidation, and thus reach the property and effects of the corporation; but they have no right of action on the contracts of the corporation against the individuals composing the corporation.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be thus amended: That there be final judgment in favor of defendants, against plaintiff, rejecting the demand of plaintiff, and dismissing his petition and suit; that the rights of the plaintiff, as holder of the two notes sued on as against the North Louisiana and Texas Railroad Company, be reserved and remain wholly unaffected and unimpaired by the proceedings and decree in this case; and that, thus 'amended, the judgment appealed from be affirmed with costs.

Dissenting Opinion.

Egan, J.

I dissent from so much of the opinion and decree as holds the defendants in no manner to be liable individually for the debt sued for. They may not be liable in this action, and yet be or become so as individual corporators, at least to the extent of any unpaid stock, should the debt not be otherwise satisfied.


author: DeBlanc, J.

text:
    No. 723.
    William Marbury, Jr., et al., Testamentary Executors, and Joseph P. Crosley vs. James F. Pace.
    Neither a citation of the defendant, nor a previous judgment of default, is necessary to the validity of a judgment based on the confession of the defendant.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J. :

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

      Garrett & Garrett and F. P. Stubbs, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the eighteenth of April, 1867, more than ten years ago, plaintiffs filed in the district court for the parish of Ouachita a petition at the foot of which we have found the copies of two notes, for each eight hundred dollars, dated at Trenton, on the thirtieth of January, 1861, payable to the order of Slaughter & Crosley, one on the first of March, the other on the first of November, 1861, with interest at eight per cent from their maturity.

These notes were signed and delivered by defendant. On the eighth of October, 1866, he acknowledged said notes, and waived the prescription thereon.

On the twenty-fifth of March, 1867, he confessed judgment in favor of plaintiffs for the amount of those notes, with interest thereon at the rate of eight per cent from the first of March, 1864. For the payment of that judgment, he was allowed a delay of nearly two years.

In April, 1867, the district court rendered judgment against him. That judgment, according to its terms, is based, not only on defendant’s undenied confession, but on the law, and on the evidence adduced in the ease.

That judgment was forgotten in the archives of the court; no execution appears to have issued on the same. It was only in the month of March, 1877, that steps were taken to avoid an impending prescription and revive the judgment.

The suit for the revival was filed, and the usual citation served on defendant. This, he alleges, is the first notice he has had that such a judgment existed against him. He immediately applied for and obtained a suspensive appeal from the decree rendered in 1867, on his own confession, on his acknowledgment of the debt, his renunciation to a partly acquired prescription, and, we presume, on the two notes, copies of which precede that renunciation and confession.

Through their counsel, plaintiffs pray that the judgment of the lower court be amended, and defendant that it bo reversed.

The grounds urged against the judgment and for its reversal are:

First — That it was rendered without previous default, and on insufficient evidence.

Second — That defendant was not indebted unto plaintiffs; but, as he was not cited, the judgment was obtained against him through error and fraud.

First — It is only when the defendant fails to appear, either in person or by his advocate, that a judgment by default may be taken against him. In this case, defendant appeared in person, and joined issue by confessing the facts set forth in plaintiffs’ petition. His appearance not only dispensed but precluded plaintiffs from taking a default against him. C. P. 310, 357, 534.

As soon as the petition and confession were filed, the issue was joined, the suit began, and the judgment was rendered on as cogent, as incontestable, and as convincing evidence as can be submitted to a court of justice; the two notes sued upon, the acknowledgment of the notes, the confession of defendant, and his signature, his undisputed and admitted signature attached to the notes, to their acknowledgment, and to the confession. It would have been impossible to add to the proof which wo have found in the transcript; that proof fully sustains the judgment.

Second — The issuance of a citation to, and its service on, one who has already confessed a judgment would be as vain and as useless a proceeding as one can imagine; for what is the object of citation ? . To summon defendant to comply with .petitioners’ demand, or deliver .his answer in the office of the clerk of the court. When his answer is filed, and that answer expresses a willingness to comply with the demand, a citation to appear and do what the party has already done is not only not required but unauthorized.

Citation is the essential ground of all civil action, in ordinary proceedings, and, without it, those proceedings are absolutely null, unless the defendant, of Ms own will, has appeared in the suit, and answered the demand. Defendant, Pace, has done nothing less; he has appeared, and, in the sense of the law, his written confession is one of those answers which waive citation, delay, and default, and left no issue to be tried. 5 R. R. 448.

. We are referred to Bouvier and Burrill for the meaning of the word “ defendant,” and we are informed that, without a suit, there can be no defendant. That a'suit is a condition precedent to a confession of judgment, which can be made but by a defendant and in a judicial proceeding. We believe otherwise; the confession may be made in or out of court, before or during the trial. It must be proven on the trial and in court. The law does not prescribe any special form for the confession of a judgment.

That confession did not create a new obligation; no new debtor or creditor was substituted to those who held and owed the notes, and, if it were so, that fact would in no way affect the judgment, which is based on the evidence, the law, and tne written confession of defendant duly proven in open court.

The charge that the judgment was obtained through fraud is repelled by defendant’s acknowledgment of the debt; by his confession, which is couched in terms not calculated to take by surprise or deceive any one.

His counsel complains of an error made in the allowance of interest from 1861, instead of 1864. That error is the only one which exists in the judgment appealed from, and plaintiffs themselves have asked that it be corrected.

It is therefore ordered, adjudged, and decreed that, in so far as it allows interest at the rate of eight per cent on plaintiffs’ claim, from the first of March and November, 1861, the judgment of the lower court be and it is hereby annulled, avoided, and reversed. And by reason of the law, the confession of judgment, and the evidence herein referred to being in favor of plaintiffs it is further ordered, adjudged, and decreed that they recover of the defendant, James E. Pace, the sum of sixteen hundred dollars, with eight per cent per annum interest thereon from the first of March, 1864, and the costs of the lower court. It is further ordered, adjudged, and decreed that, as above amended, the judgment of the lower court be and it is hereby affirmed; the costs of the appeal ■to be paid by plaintiffs.

Rehearing refused.


text:
    No. 752.
    R. B. Burns vs. A. H. Van Loan et al. and J. L. Hargrove vs. Rufus Stanley et al. Consolidated.
    The sale o£ the property of an absentee», who owes no debts, and is living at the time, made by one who has obtained its administration, under an order of court, without any proof having been made that the absontee was dead, or had been absent for ten years and not heard from, is null and void.
    A sale madeby an .order of court without authority to give the order, is utterly void and prescription will not run in its favor.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      J. L. Hargrove and Hicks & Hicks, for plaintiffs and appellees.

      W. I). Wylie, O. G. Henderson, Looney & Mstner, W N. Wise, and L. M. Nutt, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

In 1833 Patrick S. Ivers entered the land in controversy at the United States Land Office in Natchitoches, and paid part of the price. The land -is in Caddo parish. Ivers was a strolling peddler. It does not appear where he -lived at that time, if, indeed, he had any fixed habitation in this State. He had disappeared many years, when, in 1858, T. P. Hotchkiss applied to the court of Caddo parish to be appointed administrator of his succession, alleging that Ivors had “ departed this life many .years ago, leaving in this parish a small amount of property which is necessary to be administered.”

On the nineteenth of July, 1858, evidence was taken on this application for administration, and there was offered—

First — The publication of the notice of the application.

Second — Oral proof that the newspaper in which the notice appeared is published in Shreveport.

No other testimony was offered or required. It is singular that when such particularity was observed in proving what would have been as well proved by filing copies of the newspaper, no one thought of proving that Ivers was dead.

Hotchkiss was appointed administrator, qualified, and petitioned the court for a sale of the land belonging to the succession. That was the sole property, and the petition alleged that “ there are debts due from the succession, and it is necessary to sell the land to pay them.” An order of sale was thereupon entered, dated September 11, 1858. It was not until three days afterward, on the fourteenth, that the attorney of absent heirs “ accepted service of the petition, and waived time and citation.” The sale took place, the administrator made title to the purchaser, and the defendants claim under that title through mesne conveyances.

While these proceedings were going on in Caddo parish, Ivers was living •with his family in Mississippi. A witness who had known him from boyhood, and during forty years, saw him near Monticello, in that State, in 1864. He died there in 1869. He had never completed the payment for the land to the Government, but his children did after his death, and a patent issued on the nineteenth of November, 1874, to Patrick S. Ivers, reciting that from the certificate of the register of the land-office at Natchitoches it appeared that full payment had been made for the land. The plaintiffs derive title from the heirs of Ivers under this patent.

The defendants contend that Ivers’s long absence from the State created the presumption of death, and therefore his succession was properly opened, and the sale made under the order of the court is valid. They plead ownership and possession under this title, and the prescription of ten and twenty years.

When a person possessed of property within this State shall be absent, or shall reside elsewhere, and shall not have appointed somebody to take care of his property, the judge shall appoint a curator to administer it. This curator has no other power than that of administering the property, and has not the right to alienate or mortgage it under any pretense whatsoever.' His responsibility is the same as that of a tutor; the mortgage by which tutors are bound attaches to him, and he has the same annual compensation. Whenever the curator shall apply to the court by petition, setting forth under oath that the absentee has not been heard from for ten years, and that he has no heirs, known to the curator, residing in the State; or if the judge knows these facts, or any other person than the curator shall make proof of them to tho satisfaction of the judge, then it is his duty to order the sale of the property of the absentee and the payment of the funds arising from the sale into the State treasury. The curator of the absentee may file annual accounts of his administration, and have them homologated contradictorily with a curator ad hoc appointed for that purpose, and, when his administration ends, he must give an account.of it. Civil Code, articles 50, 53, 56 (new Nos. 47, 50, 55; interpolated articles 53-4 in the revisal of 1870).

All of these provisions are contained in the Code of 1825, save that relative to the sale of the property, which became law in 1855 (Bevised Statutes of 1856, p. 1), and which is incorporated in the revisal of the Code of 1870. None of them have been complied with. Instead of appointing a curator to administer the property, i. e., to take care of it, to conserve it (for the word is manifestly not used here in its technical sense), who should render annual accounts of his gestión, and, when ten years have passed and the absentee has not been heard from, should apply to the court for a sale of his property upon a statement under oath of such absence, there was appointed an administrator, without proof either of death or ten years absence, or of any absence at all, who proceeded immediately to sell.

There is not intended here any finely-drawn distinctions between the two designations of the officer who is charged with the estate of the absentee. The defect of the proceeding does not consist in the nomenclature adopted. ’Whether he was denominated curator or administrator matters not, but the validity of his acts as the representative of the law; who had control of the property of the absentee, must be tested by the law. The Oodo of 1825 gave him no power either to alienate or mortgage the property. It expressly withheld that power from him. It contemplated a long administration of it, as a tutor has of a minor’s oftentimes, and permitted him to file 'annual accounts. It was only terminated when the absentee appointed an attorney in fact for the administration of his estate, or, when a certain time having passed without hearing of him, his heirs caused themselves to bo put provisionally in possession of it. Oivil Code, article 55 (new No. 52). The Legislature of 1855 provided a new mode of terminating this administration of an absentee’s property. If the absence shall have continued ten years, a sale may be effected in the manner and under the circumstances detailed in the act of that year.

.But in this case there was no curator who had been burthened for ten years with administering the property of an absent owner, and who desired to avail himself of this legislative permission to sell and pay the proceeds to the fisc. Nor was the treasury much benefited, since the payment was made August 1, 1863, when the only currency of that locality was greatly depreciated. If there had been creditors, the case would have been wholly different. But Ivers owed nobody. The debts which the property was sold to pay were all created by the proceedings for selling it. If Ivers was alive, and any one was desirous of benefiting him, he could apply for the euratorship, and administer his property, taking care of it and conserving it.- If he was dead, his heirs owned the property, and it was their concern to protect their interests. The sole object of the administration was to sell. The meagre account shows that nobody was paid any thing, and nobody claimed any thing, except the clerk, and sheriff, and attorney, and printer, and administrator. Three hundred and seventy-four dollars were paid into the treasury.

If Ivers had been dead at that moment, all this would have been wrong. Our law does not contemplate an administration of a succession, if there are no debts. Its settlement is otherwise provided for. Therefore, if Ivers had been away long enough to create the presumption of death, and it was lawful to settle his succession as if he were dead, this mode of settlement is unlawful. One can not raise an illegal presumption of death, and, acting upon it, dispose of the property in a manner which would be illegal if the owner were dead. There was no proof whatever of prolonged absence, in order to create the presumption of death, nor prooí of actual death. And if the succession sale of Ivers’s property, upon which the defendants rest as the source of their title, is illegal, because not conducted under the forms for alienating a decedent’s property, nor under the forms for alienating an absentee’s property, much moré is it invalid when made during the life of its owner, and when no necessity for the alienation existed. The title of Hotchkiss as administrator is null, because he had no authority to make it, and the prescription pleaded does not validate it. It was not a sale the informalities of which are cured by a certain lapse of time, and which becomes perfect •through prescription, but it was void because the court was without authority to order it. Morton vs. Reynolds, 4 Rob. 26; McCluskey vs. Webb, idem, 201; Robert vs. Brown, 14 Annual, 598.

A. H. Van Loan, one of the defendants, had entered a part of this land by permission of the register oí the land-office at Natchitoches, and other parties had effected entries before his was made. This elicited the following letter of instructions from the Commissioner of the General Land-Office at Washington to the register at Natchitoches. It is dated April 1, 1873:

“On the first of October, 1872, you were advised of the cancellation of homestead entry No. 748, Abraham H. Yan Loan, upon the (here follows description by sections, range, etc.), for conflict with the prior cash entry of Patrick Staabury Ivers, No. 998, dated January 27,1833, for the northwest quarter of said section, and that the above was the third entry allowed upon said tract, contrary to express instructions contained in the above letter. You have allowed Mr. Yan Loan to commute his entry to cash, under the eighth section of the act of May 20,1862. You will please advise Mr. Yan Loan of the cancellation of his commutation entry, and that the purchase money paid thereon will bo refunded upon proper application being made through you to this office.”

It is urged on the part of the defendants that the decree of the court ordering the sale of the succession property should protect them, and, as the court which thus ordered the sale had jurisdiction of successions, it was not for them to look beyond it. But that is assuming as true that which we know was not true. The owner was not dead. There was no succession. Chief Justice Marshall thus disposes of that position:

“ To give the ordinary jurisdiction, a ease in which, by law, letters of administration may issue must be brought before him, In the common case of intestacy it is clear that letters of administration must be granted, to some person by the ordinary, and, though -they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority, because he had power to grant letters of administration in the case. But suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally' void. The ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others be dead or in life.” Griffith vs. Frazier, 8 Cranch. 9.

And it can not with reason be contended that the defendants were prudent, or not careless, in purchasing under a title which had on its face so many features to warn against approach. The proceedings in the succession should have put every inquirer on his guard.

The judgments of the lower court in both cases were for the plaintiffs,, and they are affirmed.


author: Mabb, J.

text:
    No. 753.
    George J. Jones vs. Succession of Nathan Hoss et al.
    When an administrator is ordered by the court to lease succession property at public auction to the highest bidder who shall furnish approved security, ho may at once, without additional advertisement, re-auction the lease, if the highest bidder at the first auction fails to furnish the prescribed security.
    A liability for damages on account of any malicious wrong is strictly personal.
    A judgment in favor of a party who has subrogated another to his claim is illegal;
    ÁPPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard and Hicks & Hicks, for plaintiff and appellee.

      W. H. Wise, for defendant.
   The opinion of the court was delivered by

Mabb, J.

Nathan Hoss, in his capacity as administrator of the succession óf E. C. Hart, by order of the parish court of Caddo, offered at public auction, on the twenty-fourth of December, 1872, the lease for the year 1873, of the Island Plantation, belonging to the succession.

The advertisement, published in the newspaper, announced that “ the lessee will be required to give a note, with approved personal security, payable January 1, 1874, in favor of Nathan Hoss, administrator;” and this was publicly announced by the auctioneer.

At the public offering George J. Jones was the highest and last bidder. He named the security, which Hoss would not accept. He said he could give other security, and he was told this must be done or the.lease would be re-offered during the legal hours, which closed at four o’clock. Failing to furnish the security, the lease was again offered, and it was adjudicated to White, who immediately complied with the terms and gave the requisite security.

Jones was in possession under a lease for the year 1872, and Hoss was compelled to have him dispossessed by the sheriff, by order of the parish court, on the seventh of January, 1873.

Nearly a year after this, on the nineteenth of December, 1873, after the death of Hoss and of Lewis, the auctioneer, who adjudicated the lease, Jones brought this suit against the executors and heirs and tutrix of the minors and the widow of Hoss, to recover three thousand dollars damages for loss of the profits which he would have made on the leased property, and twenty-five hundred dollars additional damages for the malicious outrage and indignity and injury to his credit caused by the •conduct of Hoss.

The judgment of the court below was in favor of George J. Jones •against the succession of Hoss, represented by the executors and the heirs named in the petition, for $1892; and the defendants appealed.

It was the perfect right of Nathan Hoss, it was his duty, as the representative of the succession of Hart, to require immediate and strict compliance with the terms of the letting, which was by order and authority of the parish court. All those who attended the auction knew that approved personal security would be required; and it was the business of those who intended to compete for the lease to be prepared to furnish undoubted security, for the administrator would have been derelict in duty if he had accepted doubtful security.

The names offered by Jones were not satisfactory, not such as the administrator would approve; and the lease was properly re-offered after a delay of not less than two to two and a half hours. The administrator was not obliged to resort to the “folie enchere.” He might have done so and held Jones responsible for any difference between his bid and that obtained at a subsequent offering; but he was not compelled to do this. The adjudication was not complete, because it was conditioned upon the giving of approved personal security; and the failure of Jones to comply with the terms authorized the treating of his bid as a nullity and the re-offering of the lease.

There were circumstances in the case which required the administrator to be extremely cautious in his dealings with Jones. Jones had leased the plantation for the year 1870, and the administrators were compelled to sue him and to resort to provisional seizure to secure the rent. He leased it again for 1871, and again the administrators sued and seized provisionally. He leased it again for 1872, and again suit was brought and provisional seizure and attachment for the rent. These three cases were then pending, and the rent for three years was'unpaid. The suits were consolidated and finally disposed of by decree of this court at the July term, 187J, in favor of the administrators. 26 An. 659.

It was proven in that litigation that Jones had given the administra-tors a draft on his commission merchants in New Orleans for the rent for one of the three years, and had notified them not to accept or pay the draft; and he pleaded the giving of this draft as a novation of the debt and a discharge of the' lessor’s privilege. The defenses set up were held, and wo think properly, to be without merit or legal foundation.

No man in his senses would have been willing to renew a lease with such a tenant if he had been dealing with his own property. Certainly the administrator would not have been justified in letting to him the property of the succession without security, good and safe beyond doubt; and it is difficult to understand how any responsible person could have consented to become security for. him. Hoss might well, when he saw Jones bidding, have told the auctioneer not to accept his bid. As it was accepted, it was the business of Jones to have furnished such security promptly as the administrator could not have reasonably objected to. It was near the end of the year, the period at which those intending to cultivate leased property make their arrangements; and it might have been greatly prejudicial to the succession to have waited upon the uncertainty of compliance by Jones with the terms of the letting, to do that which ho knew in advance he would be required to do, and which ho should have been prepared to do at once. In the event of his failure, if the day had passed, a now order of court might have been required, certainly new advertising and additional expense would have been necessary; and Hoss did no more than his duty in disregarding Jones’s bid and re-offering the lease.

That part of the demand which is based upon the alleged malicious outrage and indignity need not be seriously considered. Actions for such wrongs die with the wrong-doers; and they can not be maintained against the heirs and representatives of the deceased, even when they are well founded in fact.

We find in the record, as part of the evidence, filed in the cause on the day of its date, ninth of December, 1874, a writing by which George J. Jones, in consideration of his indebtedness to Ms brother, A. J. Jones, in the sum of fifty-two hundred dollars, with interest from 1870, transfers to A. J. Jones “the claim in the above-entitled suit, and I subrogate him to all my rights in the same and give him full power to control and manage the same, to be held and used by him as security for the payment of the above sum as collateral security.”

Strange to say, on the fourteenth of May, 1877, about two yqars and a half after George J. Jones had thus divested himself of all right to and power of control and management of the suit and claim, judgment was rendered in his name and in Ms favor in that suit upon that claim. Of course, George J. Jones no longer had any suit to prosecute or right or claim to be enforced. The judgment is erroneous in that respect, and could not be maintained, even if there had been any merit in the suit originally, which, we do not think there was.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that tho suit of plaintiff be dismissed with costs in both courts.

Mi-. Justice Egan, having been of counsel, is recused.

Rehearing refused.


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    No. 692.
    Herman Meyer, Administrator, vs. Joseph King, Administrator.
    Tlio writ-ton acts of a party to a contract, when they express tho true intent, and explain the real nature of tho contract, are admissible in evidence, even when establishing a different form of contract.
    The authority to sign another’s name to a single act, if done by order of, and in tho presence of the principal, need not be in writing.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Bobert J. Caldwell and John H. Binhgrave, for plaintiff and appellant.

      Cobb & Gunby, for defendant.
   The opinion of the court was delivered by'

DeBlanc, J.

Defendant, as administrator of the succession of Simon King, advertised to be sold on the seventh of April last, and as belonging to said succession, a tract of land alleged by plaintiff to be the property of the succession of Jesse Sherman

The intended and advertised sale was enjoined by plaintiff, as administrator of the succession of said Jesse Sherman. He prays that the latter’s succession be recognized as the owner of that land.

His injunction and action are based on private instruments, two of which were excluded, and two admitted as evidence by the lower court. The admitted and excluded instruments are the following, to wit:

First — A receipt from Simon King, dated Trenton, La., January 21, 1875, in which he acknowledges that, in part payment of a certain tract of land sold by him to Jesse Sherman, he received from said Sllerman the sum of §168 64.

Second — A written declaration, of the same date as the receipt, delivered by King to Sherman, in and by which tho former “ obligated himself to wait,” in the terms of that declaration, “ for the payment on that land that I sold to Jesse Sherman tioo years for the payments.”

Third — An act of lease from Simon King to Jesse Sherman of the land in controversy, for the year 1876, at the rate of three dollars and ten cents per acre, payable on the first of November, 1876.

Fourth — Another act subscribed by Simon King, on the day the lease appears to have been agreed to, in and by which he stipulated “ that the payments made by Jesse Sherman for the lease of the land shall be placed to the credit of said, Sherman as of a contract of sale. And, further, that if, on the first of November, 1877, he, Sherman, shall make his second payment, as shown by the recorded lease, or any day after the agreement of parties, then and in that case the lohole one hundred and sixty acres of land to revert to him, and their contract to have, in the event of said payment, the force and. effect of an act of sale as between the parties.”

What is called a lease, and the act which reveals its character, were passed on the twenty-fourth of June, 1876, eighteen months after King had acknowledged having received from Sherman, in part payment of the land sold by the former to the latter, §168 64, eighteen months after the extension of time allowed Sherman to pay the balance then due on the price of the land.

We are left to infer what was the price fixed between the parties, and the balance due on that price in January, 1875. The evidence on that point is vague and incomplete. Was the land cleared? Was it improved ? Was it of a good or inferior quality ? If it was a forest, who converted it into a productive field ? Was it King ? Was it Sherman ? What was, and what is, its value ? For what price was it sold ?

Sherman, who was, and who died, poor, would not have imagined and consented to lease, on the twenty-fourth of June, a tract of land which was in his possession at least five months before, and on the successful •cultivation of which he depended to satisfy, whatever it may have been, his obligation toward King. From the scanty amount of the inventory of his estate, we can justly presume that his only resource was his labor, and, unless driven from overflowed fields, laborers, in our State, do not lease in June to harvest in November.

In 1876, Sherman raised a crop on the land. When was it coihmenced ? Was it on the twenty-fourth of Juno? That is not probable. We have every reason to believe that, in January, 1875, Sherman was on that land, and that, when he paid a part of its price, he was not merely in possession, but that his possession dated from either a sale or a promise of sale anterior to the payment of January, 1875. At that time, King acknowledged, over his signature and in presence of two witnesses, that he had sold that land to Sherman; that he had received from Sherman a specified portion of the price of that sale, and that, for the payment of the balance of that price, he had allowed to Sherman a delay of two years.

In one of the agreements of the twenty-fourth of June it is expressly stipulated that, if on the first of November, 1877, Jesse Sherman makes Ms second payment, as shoum by the recorded lease, he shall acquire title to the whole of the land. The first payment was made; that can not be disputed. Thereafter Sherman was sued, his crop seized, and a second payment was made. Was it not the last that could have been legally enforced by King or the representative of his succession ?

We are told that the time fixed for the last payment is the first of ■November next, 1877. Is not this a clerical error? Does that date correspond with'that fixed in the document which evidences the granting of an extension of time ? In January, 1875, King bound himself to wait until January, 1877, the space of two years, for the payment of the balance of the price. At that date, cotton is generally gathered, shipped, or disposed of, and it may have been on that account that the time of payment was changed from January, 1877, to November, 1876.

This is but an inference, but one which grows out of positive facts. Two documents were signed by King and delivered to Sherman on the 'twenty-first of January, 1875. In one of them, the delay of two years is granted, not by fixing any day of any month for the expiration of said delay, but in so many words, “ two years.” It is not denied that the twenty-first of January, 1875, is the date when those twin documents were signed and delivered, and, as a matter of course, the period agreed upon for the second payment was originally the twenty-first of January, 1877.

To secure King, to give him, on the crop of 1876, the lessor’s privilege, to enable him to seize that crop, the lease of June was added to the previous sale or promise of sale. In the lease, the term of payment was advanced; and, as we have already said, the payment which', under the first agreement, was to be made in January, 1877, was fixed, in the lease, on the first of November, 1876.

It is urged that two additional payments were to be made, after that of the twenty-first of January, 1875. That supposition is not sustained by any part of the evidence. The word “ payments” is in one of the documents, at the end of the last line; but, in the very same document, King said: “ I obligate myself to wait for the payment on the land.” In the promise of sale or conditional sale of the twenty-first of June, 1876, there are two important stipulations:

First — The payments made by Sherman were to be credited on the price of the land; and, further, we now copy from the act itself: “ If, on the first day of November, A. B. 1877, Jesse Sherman makes his second payment, as shown by the recorded lease, etc., this contract' shall have the force and effect of a sale.” In this stipulation there is an apparent contradiction. The only payment to be made, at least as shown by the act of lease, was to be made on the first of November, 1876. That clear and positive declaration “as shown by the lease,” could.not have escaped the parties’ attention, and repels the conclusion that any payment was fixed for the first of November, 1877. Under this constractipn, the second payment, the payment which was to give to the parties’ contract the effect and the force of a sale, was made before the institution of this-suit.

Defendant has filed and urges the plea of Us pendens. That plea was properly overruled. Sherman’s representative could not legally resist the payment of the'balance due to the succession of King; but, as soon as that payment was made, the right of action to recover the land or enjoin its intended sale accrued to the succession of Sherman. If that payment was the second, it vested the title to the land in the last:mentioned succession. If, as alleged by defendant, there is still another, a third payment, to be made in November, 1877, the term of the presumed obligation has not arrived, and the administrator of the estate of King could not, before that term, advertise for sale the land in controversy.

The receipt from King to Sherman, and the agreement for an exten-. sion of time, should not have been excluded by the lower court; they constitute, if not a complete title, the commencement of a title; they do not contradict, they explain, the act to which the parties have given the form of a lease; they corroborate the stipulations of the instrument called a counter-letter; they are the component parts of one and the same contract, the corresponding links of the evidence of that contract.

That a lessee’s possession is that of the lessor, that the lessor’s title can not be assailed by the lessee, is not, could not', be disputed. In this case, it is manifest the lease wras intended as a security for the payment of the balance due on the price of a sale or not less than a promise of sale. It did not impair or destroy, it reiterated and confirmed, when coupled with the counter-letter, the stipulations of the sale.

On the trial, defendant, a son of King, was asked whether he had signed his father’s name, with his father’s consent, to the counter-letter herein referred to. That question was objected to, on the ground that the authority to sign such a document can be shown but by a written act. The objection was sustained. This was an error. The counter-letter was not the mandate, but the act signed for, in presence and under the instructions of the parent. That authority was delegated for only one object, was not to bo exercised out of the interested parties presence, lasted the space of time required to write a name, and expired when the last letter of the principal’s name fell from the agent’s pen. In such a case, the act itself is the act of ^the principal, not of the agent.

The witnesses whose names are affixed to some of the documents copied in the transcript, may be able to explain the apparent contradiction in the dates mentioned in the act granting the extension ahd the act of lease; they and others may prove whether Sherman has built on and improved the land, when he took possession of the same, and when and under what circumstances that possession ceased.

If plaintiff has not paid the whole of the price agreed upon, he has paid of that price the sum of §664 64. Though his petitoryaction may have been premature, his injunction was properly issued, and should have been maintained until the final determination of this controversy, or, if there yet remains due a balance of the price, until the date fixed, according to the pleadings of defendant himself, for the payment of that balance.

We consider as indispensable a new trial of this case.

It is. therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that this case be remanded to the lower court, to be proceeded with according to law; the costs of the appeal to be paid by defendant.


text:
    No. 722.
    J. P. White vs. E. A. Givens.
    In a suit to enjoin a wrongful seizure, and to recover damages on account of it, plaintiff may prove the amount of his attorney’s foes, like any other element of damage.
    The fact that a debtor has other property than his homestead, or has fraudulently disposed of other property, does not affect the exemption of the homestead, if his condition brings him within the operation of the homestead law.
    APPEAL from'"the''Eleventh Judicial District Court, parish of Bienville. Trimble, J. Trial by jury.

      J. 8. Young and J. C. Egan, for plaintiff and appellee.

      L. B. Watkins, for defendant. ’
   The opinion of the court was delivered by

Mare, J.

This is a suit to prevent, by inj unction, the sale of the homestead of plaintiff, White, seized by the sheriff under execution on a judgment in favor of defendant, Givens, against White, and to recover damages for the unlawful seizure of the land and the growing crops.

Defendant, Givens, in his answer denies that the property is exempt, and he pleads other matters tending to show that White, pending the suit of Givens against him, had disposed of all his property except this tract of land, with the view to defeat the pursuit of his creditor, Givens.

The case was tried by a jury, and upon their verdict judgment was rendered in favor of White for one hundred and twenty dollars damages for the wrongful seizure, maintaining and perpetuating the injunction, and declaring the property seized to be the homestead of White and not subject to seizure and sale.

Defendant, Givens, took two bills of exception to the testimony offered on the trial, the first to the proof by White of the “ value and contract price of his attorney’s fees,” on the ground that, in an injunction suit against the execution of a judgment, it was inadmissible to allege or prove attorney’s fees in behalf of plaintiff in injunction.

The plaintiff seeks in this suit, not only to prevent the sale of his homestead, but damages for the wrongful seizure. He treats the seizure as unlawful, a trespass, a violation of the right of exemption secured to him by law. He alleges as elements of damage the fees paid his attorney, the loss of his crop, the annoyance to his family, and his loss of time occasioned by the seizure. It is proper in estimating the damages occasioned by an unlawful invasion of the rights of a plaintiff to prove the loss, including the expense which he has incurred in preventing further wrong; and the reasonable fees of an attorney may be allowed as well as any other expense occasioned to the plaintiff by the unlawful act of the defendant.

The second bill of exceptions is to proof by plaintiff, in explanation of a conversation in .which he had stated that the judgment in favor of Givens was unjust. This conversation was brought out on the cross-examination, and on re-examination the witness was asked why he had stated, in that conversation, that the judgment was unjust; to which he answered that Givens owed him for four bales of cotton, which overpaid the debt, and that Givens had not given him credit for the same.

It is obvious this entire testimony was wholly irrelevant. The question of indebtedness between Givens and White had been passed upon by this court finally. It was not proper for defendant, Givens, to interrogate White touching the conversation, but, having done so, he could not with any propriety object to the statement by White, on re-examination, of the reasons which induced him to make the statement that the judgment which Givens was seeking to enforce was unjust. Of course, the object of Givens’s counsel in proving the conversation was to influence the jury in favor of Givens and against White; and it was the right of White to prevent that effect by stating, as he did, the reasons which Induced him to make that statement.

But all this inquiry was wholly immaterial. The real question, the only question except that of damage, was whether the property seized was exempt by law from seizure. It was not necessary, nor was it proper, for defendant to allege or to prove that White, during the pendency of the litigation, had disposed of other property. The law exempts the homestead; and whether the defendant in execution has other property or whether he has made fraudulent or fictitious sales of other property, it is not material for us to inquire, because the exemption is specifically of the homestead, and that can not be sold under execution whether the defendant has other property or not.

The allegations of the petition and the proof show that the property seized was the homestead of the plaintiff in injunction, White; that he had a wife and four children dependent on him for support; that the tract of land consisted of one hundred and twenty acres; that the whole was not worth two thousand dollars; that he had no other land; and that his wife had no separate property. The case contemplated by law is fully made out by the allegations and the proof; and there is no room for doubt or question that the property seized was exempt within the true intent and meaning of the act of 1865, extra session, No. 33, p. 52.

If White has disposed of his property fraudulently or by simulated titles, that property may be pursued by his judgment creditors; but no act of White, however fraudulent, touching other property can deprive him and his family of the exemption of the homestead.

It seems that Givens was determined to test the right of exemption in this case; for, as he testifies, he gave the sheriff an indemnity bond “for the sheriff to retain the seizure.” The seizure was made on the ninth of August. A keeper was appointed by the sheriff; and, although White and his family were not interfered with in the occupation of the dwelling, his custody and control and his enjoyment and right of dominion were necessarily impaired, and could be exercised by him only in subordination to the authority of the sheriff and his keeper. The crops still required work and attention at the time the seizure was made, and this Was permanently interrupted by the seizure.

We can not entertain any inquiry as to the policy of this exemption. It is the business of the Legislature to consider and to determine that. The validity of the homestead act is no longer an open question; and we must content ourselves with a mere reference to what we said and decided in April last, in the case of Wolf & Cerf vs. Mary L. Hardin.

The seizure in this case was unlawful. It occasioned White, besides seventy-five dollars for attorney’s fees, loss and damage to his crops. The amount allowed by the jury, one hundred and twenty dollars, is not excessive, and it is not punitive. We find no cause to disturb the verdict, which is based upon the statements of the witnesses, neighbors of White, who had much better means of arriving at a correct estimate than we can have.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed with costs.