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

text:
    No. 5407.
    The Workingmen’s Accommodation Bank vs. George T. Converse et al.

      An association of persons can not claim a. corporate existence under the free banking act, unless they shall havo fulfilled the conditions precedent prescribed by that act.
    No corporation organized nndor the general incorporation act is permitted to engage in the banking business.
    No association of persons can appear in court ns a corporation, unless organized as such, in strict accordance with law. Unless so organized it can only sue In the individual names of its members.
    APPEAL from the Fifth District Court, for tlio parish of Orleans. Citllom, J.

      Humor £ Benedict, for plaintiff and appellant.

      Hays & Hexo, for defendants.
   Tlio opinion of tho court was delivered by

Manning, C. J.

Tho plaintiff sues as a corporation established under the act of the General Assembly of this State of 1855 (Revised Statutes of 1870, sections 275 et seq.,) authorizing free banking, and seeks to recover over eleven thousand dollars from George T. Converse and the sureties on his bond, given for tlio faithful performance of his duties as book-keeper and paying teller of plaintiff, which sum, it is alleged, Converse has applied to Ills own use.

Sundry exceptions wore pteadod by the defendants, viz.: that tho free banking aot, under which plaintiff claims to be organized, does not provide for an association of individuals for the purpose of private banking, but only for the creation of xrablic banks of circulation, controlled by the Auditor and Treasurer of the State, and that the organization of plaintiff was not made under that act, and could not be, but was made under another act providing- generally lrow corporations can bo created, which latter expressly prohibits such corporations from engaging in banking-business of any kind. Ibid, section 677 et seq.

That the free banking act imposes certain essential conditions upon those who seek to form a corporation under it, and that plaintiff lias not complied with those enumerated, which are, that there must be mention and description of a corporate seal, and plaintiff’s articles of association omit it; that the existence of free banks is limited by that law to twenty years, and plaintiff’s articles provide for twenty-five years duration; that those articles do not specify the numbers of shares held by each stockholder, which that law requires; that these articles were not deposited in the office of the Auditor, nor in that of the recorder of mortgages, and neither of these requirements can be dispensed with.

That the act under which plaintiff claims to derive its existence was inoperative at the time of its creation, because suspended by the act of Congress which authorized the issue of United States notes, and that neither at the date of its creation, nor at any other time, did plaintiff have any corporate existence, and therefore it could not, as a corporation, enter into a contract, or bind others by a contract.

There are other exceptions which cover all the distinctive features of the act, but it is not necessary to specify them further.

There can be no doubt that the plaintiff has mistaken its paternity. If it derives its existence from the free banking law, then it has not complied with the conditions which that law prescribes as essential to its vitality as a corporation, and those conditions are precedent. It does not begin to live until they are fulfilled. If it derives its existence from the general incorporation act, then it is without tlio power to engage in banking business, and it was while engaged in that business that it made the contract for the violation of which a judgment is now demanded against the defendants. It is impaled on either horn of the dilemma.

The plaintiff meets these objections with the rejoinder that the defendant, George Converse, accepted the position of paying toller from it, and is, therefore, precluded from denying its corporate capacity under the free banking law, and the other defendants became his sureties to a bond for tlio faithful discharge of his duties, and it does not lie in their mouths to dispute or deny an authority which they admitted to exist by signing the bond. But here the law interposes its inexorable mandate. Corporations unauthorized by law, or by an act of tlio Legislature, enjoy no public character, and can not appear in a court of justice, except in the individual names of all the members who compose them, and not as political bodies, although these corporations may acquire and possess estates and have common interests as well as other private societies. Civil Code, article 437, new No. 446.

The plaintiff can not, therefore, sue as a political body. It can not appear in a court of justice, except in the individual names of all the members who compose it. It has sued by a name and in a manner which it is not empowered to do, and it has not sued in the names and manner in which it is empowered to do. It follows that the exceptions were well taken to the present action, but its right to institute another suit, such as the law does authorize, should be reserved. The lower court so ruled, and therefore

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

Dissenting Opinion.

Egan, J.

I dissent from the conclusions of the court in this case. I -can not consider the article of the Civil Code which provides that corporations not authorized by law can not appear in court as a prohibitory law to the extent claimed for it. Nor can I give nay consent to permit one who had dealt with the plaintiff as a corporation and given a bond for -the faithful performance of his duties as an an officer of the corporation, .■and thus recognized its existence, to shelter himself under such plea ¡from just responsibility incurred as such officer by reason of his own default and unfaithfulness. He and his sureties are estopped from denying the existence of the corporation, as such, as much as would have been the corporators themselves when sued as such. Such I understand t-o be the doctrine not only of the United States courts, but of our own, which have frequently held that one dealing with a corporation thereby admits its existence as such, and that no other evidence is required.

On Application eor Rehearing.

'The opinion of the court was delivered by

Manning, C. J.

The plaintiff calls our attention to a decision of the Supreme Court of the United States, rendered about the time this cause was taken under advisement, in the case of Casey vs. Galli, where it is said:

“Where a shareholder of a corporation is called upon to respond to a liability, as such, and where a party has contracted with a corporation,' and is sued upon the contract, neither is permitted to deny the existence .or the legal validity of such corporation. * * * Parties must take the consequences of the position they assume. * * * Sound ethics require that the apparent, in its effects and consequences, should bo as if it were real, and the law properly so regards it.”

No one will dispute that this is a sound principle of law, as well as of ethics, in every jurisdiction which has not a prohibitory law of the kind ■and scope of ours. But when the Legislature has declared that corporations unauthorized by law can not appear in a court of justice in their corporate name, we understand that courts must say to them, when they do so appear, that they can not bo hoard.

And sound ethics will not be abraded when the parties who thus shelter themselves behind this prohibition can be pursued by the individuals who compose the corporation when suing in their individual names. And that is what the Code permits — not only permits, but prescribes— that courts shall not hear their demand when appearing in any other capacity.

Rehearing refused.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 5158.
    Ferdinand M. Goodrich vs. Logan Hunton.
    Tho order of a State court transferring a ease before it to tho circuit court of the United Stales may bo appealed from.
    Under the ju dieiary act of 1789 a suit is removable from a Stats to tho Federal court, when the Federal court has jurisdiction of it, only on tho application of the defendant, who is a citizen of another State, or is an alien, made at the time ho files • an appearance, and when the plaintiff in the suit is a citizen of tho State wherein the suit is brought.
    Under the said act of 1789 only an original suit, pending in a State court, is remova- ■ ble to the Federal court. Heneo a suit brought in a State court to annul a judgment of that court, or to restrain its execution, being only an auxiliary suit, is not removable.
    A Federal court is without jurisdiction to enjoin proceedings in a State court, and therefore, no suit pending in a State court, whose object is to enjoin tho execution of a judgment of that court, is removable to the Federal court.
    j^PPEAL from the Fourth District Court, parish of Orleans. JAjnch,

      George L. Bright and Barrow & Pope, for plaintiff and appellant.

      J. Ad. Bozier, for defendant.
   Tho opinion of tho court was delivered by

Marr, J.

This suit was brought in tho Fourth District Court for tho parish of Orleans to have declared a nullity a judgment of that court in favor of Logan Hunton against Goodrich, and to prevent, by injunction, the enforcement of that judgment.

On the third of February, 1874, a few days after he was cited, Hunton filed a petition, with sufficient bond,' praying for the removal of the suit into the circuit court of the United States, alleging that he was a citizen of the State of Missouri, and that Goodrich was a citizen of tho State of Louisiana. The oaso was removed, and Goodrich appealed from the order of removal. His right to do so is beyond question.

Counsel for appellee state in their printed brief that the case was properly removable under the act of Congress approved twenty-seventh of July, 1866. In this they are cloarly mistaken. No reference is made in the petition to any special law under which the removal is demanded, but there are allegations in tho petition which indicate the'intention to bring the ease within that act. Although the right may not be prejudiced by such error or omission where the case stated falls within any act of Congress authorizing the removal, it is nevertheless necessary to ascertain the law to which it is subject.

Prior to the passage of the act of the third of March, 1875, there were but three general laws allowing the removal of suits from the State courts into the circuit courts of tho United States: the act of the twenty-fourth of September, 1789, commonly caii.'-d the judiciary act; the act of the twenty-seventh of July, 1866; and tho act of the second of March, 1867, known as the “prejudice or local influence” act. In analyzing these acts no reference will bo made to aliens, because tho case with which we are dealing is one in which all the parties are citizens of tho United States, and no mention of the amount in dispute is necessary, because it is sufficient in this case to give jurisdiction to tho circuit court.

The act of the twenty-seventh of July, 1866, is applicable to those cases alone in which there are at least two defendants, and tho requisites for removal are:

First — That the suit bo brought in a State court by a citizen of that State.

Second — That one of the defendants be a citizen of the State in which the suit is brought and tho other defendant be a citizen of another State.

Third — The suit must be instituted or prosecuted for the purpose of restraining or enjoining such defendant, citizen of another State.

Fourth — Or, the requisites one and two concurring, it must be a suit in which there can bo a ñnal determination of the controversy, so far as it concerns the defendant citizen of another State, without the presence of the other defendants as parties in the cause.

Those conditions existing, the defendant, citizen of a State other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal * * * as against him, * * * without prejudice to tho right of the plaintiff to proceed in"the State court against the other defendant or defendants. Statutes at large, 1865-66, pages 306, 307.

Before the passage of this act, there was no law authorizing a defendant, who, if ho had been sued alone, might have removed the suit into the circuit court, to demand the removal when there were other defendants, citizens of the State in which the suit was brought, and the precise object of the act was to supply this deficiency in the existing laws.

In this case there is but one plaintiff, Goodrich, and but one defendant, Hunton. The essential requisite, a suit by a citizen of the State in which it is brought, against a citizen of that State and a citizen of another State, is wanting ; and the right of removal can not be claimed, nor can it be maintained under this act.

The act of the second March, 1867, is applicable to those cases alone in which the party, plaintiff or defendant, who desires to remove the suit files his affidavit in the State court, before the final hearing or trial of the suit, stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court.

Manifestly, the case does not fall within the terms of this act; and the act of third March, 1875, can not be invoked, because it was passed more than a year after the order of removal was granted. -The right of removal, 'therefore, depends solely upon the act of 1789, section twelve, subject to the limitation imposed by the act of second March, 1793, section five.

The requisites under the act of 1789 are: That a suit involving the required amount be commenced in a'State court, by a citizen of that State, against a citizen of another State ; and that the defendant, at the time of entering his appearance in the State court, file his petition praying for the removal. This right belongs to the defendant alone; and it can not be claimed by the plaintiff by whom the suit was commenced, no matter what may be the citizenship of the parties.

The record does not show that Hunton made any appearance in the State court, except to present and insist upon his petition for removal; and his citizenship and that of Goodrich are not questioned. A proper case, therefore, is made out for removal, if the proceeding be one of which the circuit court could take jurisdiction.

The objects of this proceeding are—

First — To have the judgment of the Fourth District Court reviewed by that court and declared a nullity for want of jurisdiction. In this respect it is in the nature of a writ 'of error coram nobis.

Second — To have Hunton enjoined pendente lite and perpetually from executing that judgment in any manner.

First — In Dunn vs. Clark, 8 Peters, 1, Graham, a citizen of Virginia,, obtained a judgment at law in the United States Circuit Court for the District of Ohio against citizens of that State. After the death of Graham the defendants in that suit filed a bill in equity in the same court, praying for an injunction against that judgment. All the complainants and all the defendants in that bill were citizens of Ohio, and the circuit court would have been utterly without jurisdiction on the face of the bill if the proceeding had been an original suit. The Supreme Court, said:

“The injunction bill is not considered an original bill between the same parties at law.”

Several persons were made defendants to the bill who were not parties to the suit at law, and the court held with respect to them that it was an original bill. Nevertheless, the court below was ordered to stay proceedings on the judgment at law until the complainants could have time to seek relief in the State court. If the court had regarded this as an original bill, the want of jurisdiction would have been so evident that no decree could have been rendered but one of dismissal.

In Freeman vs. Howe, 24 Howard, 460, the rule is thus stated by Justice Nelson: “The principle is that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties.”

Judge Nelson took occasion to say in this case, with reference to Dunn vs. Clark, in 8 Peters, the leading case, that, “ It would seem, from a remark in the opinion, that the power of the court upon the bill was limited to a case between the parties to the original suit. This was probably not intended, as any party may file the bill whose interests are affected by the suit at law.”

The meaning of the court is, and we think this is settled beyond question by uniform jurisprudence, that a proceeding to enjoin a judgment, brought in the court which rendered that judgment, is not an original suit, in any sense, where all the parties were parties to the original suit.

In Bank vs. Turnbull, 16 Wallace, 195, the bank, under a judgment against Thomas, seized property which Turnbull & Co. claimed as own-, ors. An issue was made to try the right of property before a jury; but Turnbull & Co. removed the case into the circuit court under the act of the second of March, 1867.

The Supreme Court said this proceeding was merely auxiliary to the original action; “.a graft upon it, and not an independent and separate litigation. The proceeding was necessarily instituted in the court where the judgment was rendered. No other court, according to the statute of Virginia, could have taken jurisdiction. That it was only auxiliary and incidental to the original suit is, we think, too clear to require discussion.”

The case was remanded to the circuit court, with instructions to remand it to the State court for want of jurisdiction in the Federal court.

By our law an action to enjoin and annul a judgment must be brought before the court by which it was rendered when the only parties are the plaintiff and the defendant in the original suit, and no other court has jurisdiction. Code of Practice, articles 604, 610; see cases cited, Hcnncn’s Digest, vol. 1, Judgment xi. (e).

We think this action is auxiliary, incidental, supplementary to the original suit, and that it could not be removed into the circuit court, because that court could not take jurisdiction of tho original suit.

There is a marked distinction between the phraseology of tho act of 1875, which was intended to control the entire subject of removal from the State courts into the circuit courts, and that of the act of 1789. The act of 1875, whore the necessary conditions cxim. authorizes tho removal by either party of “ any suit of a civil nature at law or in equity.” What may be the precise meaning and effect of this act we are not now called on to decide, and wo refer to it merely to show tho difference and to say that decisions under it have no application to this case, which falls under tho dominion of the act of 1789.

Tho language of this act, section twelve, is: “ If a suit bo oommknoed, etc., by a citizen of a State, etc., against a citizen of another State,” etc. This statute looks to the commencement of the suit, to the original proceeding, and it provides for the removal of that original proceeding, and not of an auxiliary, or incidental, or supplementary proceeding, in the same court, between the same parties, which is but a continuation of the original proceeding.

-n this case tho original suit was brought by a citizen of Missouri against a citizen of Louisiana, in a court of the State of Louisiana, and, of course, under the act of 1789, it could not bo removed into the circuit court by tho more terms of the law. The proceeding in tho same court, between tho same parties, to annul and to prevent the execution of that judgment was not a separate, independent, original suit; it was not the commencement of a suit; it was the continuation by a supplementary auxiliary proceeding of a suit which had been commenced years before, and it could not be removed, as was expressly decided in the Bank vs. Turnbull & Co., 16 Wallace.

Second — Jurisdiction with reference to a special case means power, authority, competency to pass upon all the questions which legitimately arise in tho case; and if, in any given case, a court can not hear and determine all the matters in controversy it has not jurisdiction of that ease.

A wise appreciation of the necessity of avoiding as far as possible conflicts and collisions between the Federal and the State judiciary induced the Congress in 1793 to forbid the Federal courts to grant “ a writ of injunction to stay proceedings in any court of a State.” Act of the second of March, section live.

In Diggs & Keith vs. Wolcott, 4 Cranch. 179, a suit in equity was brought, in a State court of Bhode Island, praying a perpetual injunction of certain proceedings at law in a court of the same State. The suit was removed into the circuit court of the United States, and a decree rendered perpetuating the injunction as prayed for. On appeal, the Supreme Court of the United States reversed the decree on the single ground that the circuit court had no jurisdict.' m to enjoin proceedings in any court of a State.

This decision was approved and affirmed in Peck vs. Jenness, 7 How. 625, and quite recently in Harris vs. Carpenter, which was a bill in equity in the circuit court at New Orleans to enjoin the defendants from prosecuting certain suits in the State courts. The circuit court, applying section five of the act of 1793, dismissed the bill on demurrer, and this decision was affirmed by the Supremo Court. October term, 1875; 1 Otto, 254.

If it be conceded that the circuit court could take jurisdiction of so much of this proceeding as involves the nullity of the judgment, which we do not admit, it is not possible to claim for that court the right, the power, to enjoin, either pendente lite or perpetually, further proceedings in the State court on that judgment. The jurisdiction of a court depends on the case made by the pleadings, not upon the decision which the court may render on the hearing. If the testimony and the law applicable to it should make out a case entitling Goodrich to a judgment annulling the original judgment and perpetually enjoining further proceeding on that judgment, it would be the duty of any court having cognizance of the cause so to order and adjudge; and the court which has not the power, the court which is forbidden by law so to decree, has not jurisdiction, and is without authority to hear and determine the cause. That the circuit court has no such power, that it is under positive statutory prohibition to interfere with proceedings in the State courts by injunction, either pendente lite or by final decree, is too clear for argument.

We may add that the act of 1793, and the decisions applying and enforcing it, have received legislative sanction in the Bevised Statutes of the United States, section 720: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may bo authorized by any law relating to proceedings in bankruptcy.”

The decision in Gaines vs. Fuentes, 1 Otto, is not applicable to this case, from which it differs widely. In that case the original proceeding was the e.r x>arie application of Mrs. Gaines to have the will of her father probated. Tears after, strangers to that proceeding, against whom Mrs. Gaines was using this will as a muniment of title, brought suit to recall the order of probate, and to annul the will. Mrs. Gaines demanded the removal of the case under the act of the second of March, 1867. The Supreme Court of the United States said this was a new suit; essentially a suit in equity, and not a mere continuation of the ex parte proceeding in which the will had been admitted to probate. No injunction was asked for in the case, and the right of removal was maintained because it was a suit brought in a State court in which there was a controversy between citizens of that State and a citizen of another State, and the citizen of the State other than that in which the suit was - brought had complied with the requirements of the act granting the removal.

Wo think the order of removal was improperly granted; that the proceeding was one of which the circuit court could not take jurisdiction, and that the plaintiff is entitled to have the case heard and determined in the State court in which it originated.

It is therefore ordered, adjudged, and decreed that the order appealed from directing the transfer and removal of this case from the Fourth District Court for the parish of Orleans into the circuit court of the United States, Fifth Circuit, in and for the District and State of Louisiana, be avoided and annulled; that the cause be remanded to the Fourth District Court for the parish of Orleans, and be there proceeded with according to law, and that defendant, appellee, pay the costs of this appeal.


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

text:
    No. 6517.
    Succession of François Bougère. On Opposition of Amélie Richard.
    The public notification oí the filing of an account, and tableau 'oí distribution by an administrator, operates as a legal citation to creditors and legatees.
    An administrator need not directly prove np every item of his account, which is not opposed.
    A judgment homologating the account of an administrator can only be rendered in iermtime, and in open court. It can not be rendered bythe parish judge in vacation, or in chambers.
    ^PPEAL from the Parish Court, parish of St. Charles. Farhart, J.

      C. F. Claiborne, M. Marks, and James D. Augustin, for executor.

      Breaux, Fenner & Hall, for opponent.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

Achille D. Bougére filed a tableau of distribution of the succession of Frangois Bougére, in his capacity of dative testamentary executor thereof, on July 3,1876. Notice of the filing was published, and on the nineteenth of the same month, no opposition having been filed, the tableau was homologated. On the twenty-second of the same month Amélie Richard filed an opposition to the tableau. She is assignee of Elie Bougére, who is one of the legatees of the deceased. The' assignment of Elie Bougére is not contested on the one hand, and oh. the other it is conceded that the opponent has only such rights as her' assignor had.

The executor moves to dismiss the appeal of opponent, for the reason that she has no interest in the affairs of the succession.

On the fourteenth of February, 1876, a decree was entered in the suit No. 5475 of the docket of this court, entitled “ Succession of FrangoiS' Bougere,” on the opposition of Elie Bougére and others, appellants, in which a motion to dismiss was likewise made. The following extracts from the opinion then read are pertinent to the present controversy:

“The appellee moves to dismiss the appeal on the grounds follow-mg:

“ First — That the appellants have voluntarily executed the judgment appealed from and have voluntarily acquiesced in and ratified its execution. * * *

“ Third — That the claim of Achille Bougere, Marguerite Bougere, Elie Bougere has been settled since this appeal was granted, as per affidavits and exhibits hereunto annexed.

“ Fourth — That the appeal was granted to above parties upon condition that they should furnish bond; * * * and that they settled their claim and acquiesced in the judgment.”

Other grounds are set forth, not relating to Elie, and the court proceeds: “ The executor rendered an account which was homologated. In it he had made a distribution or partition of the property among the legatees, after paying creditors. Some time after this judgment Elie, Marguerite, and Achille obtained an order for a suspensive appeal, but they subsequently received from the executor the shares or amounts adjudged to them by the judgment.” That appeal was dismissed because of the voluntary execution of the judgment.

An appeal in another suit, No. 5872, was decided at the same time. A 'petition had been filed by Elie Bougere praying the dismissal of Filleul, the testamentary executor, and a judgment had been rendered to that effect, and also appointing Elie Bougere executor of the succession, and ordering its assets, including a considerable sum of money in bank, to be delivered to him. This was pending the appeal of the case just noted.- A prohibition was prayed and obtained by Filleul against Elie Bougere and the judge who had granted these orders and rendered the judgment of dismissal, upon presenting a petition in which is this allegation: “Thathe has duly administered said estate and filed his account and tableau of the full assets of the succession in cash, and credits, and values, which was duly homologated by final judgment of the parish court, the oppositions to which were all dismissed, and the opponents took devolutive appeals, which are now ponding.” Further proceedings by the judge and the contestants were arrested by the writ of prohibition, and on the hearing in this court the writ was made peremptory on the same day that the decree was rendered on the oppositions to the account.

The counsel for the executor is in error in his position that this court decided in the suit involving the account and the oppositions that Elie Bougere had received his share in this succession from Filleul. The language of the court is that Elie and his co-opponents subsequently received from the executor the shares or amounts adjudged to them by the judgment; i. e., the judgment on the account of Filleul rendered in 1875. The counsel is also in error in supposing that in the prohibition the question of interest was dither directly or indirectly decided. No exception was filed by Filleul, that we have seen, on the ground that Elie Bougere had no interest in the succession. The jDOtition praying the writ of prohibition recites the details of the litigation on the account and oppositions, and alleges that the same issues are there made as in the opponent Elio’s suit for dismissal, and that all parties are awaiting-the decision of the Supremo Court on the pending appeal, and the writ was granted to stay proceedings until that decision is made, which adjusted the rights of the parties, and by a construction of the will determined the interests of the various parties to the litigation.

The judgment of this court in February, 1876, was that Elie Bougere had received all that appeared to bo due him by the account of Filleul, and that was embraced in it. But was that a final account and complete administration of the affairs of the succession ? Manifestly not, because another executor has been appointed to complete what Filleul loft unadministerod, and this dative executor has had something to account for, otherwise there would bo no suit before us now. The present suit has for its origin an account presented by that executor.

We are also referred to the account in this record and the receipts of Elio Bougere as supporting the averment of his want of interest. If we' wore to assume that the items of the account are supported by vouchers, and the distribution of assets is in accordance with the rights of the legatees, and that this account is final and nothing more remains to be administered, we could then satisfy ourselves that Elio Bougere had been paid all, and more than all, he was entitled to. His receipts exceed his share, if we are to be guided by what appears on the face of the papers. But there are no vouchers in the record, no testimony having been offered on the homologation apparently, and there is something else to administer. The acceptance of service of notice by the attorney of some of the legatees is: “Notice of the filing of this account acknowledged, citation waived, and consent that the uncollected notes bo sold as prayed for herein.” Referring to the prayer thus alluded to, we find the dative executor in his petition presenting his account, and the tableau of distribution says: “As to the balance of the assets, being the uncollected promissory notes mentioned herein, owing to the difficulty of collecting the same and the’ injurious delay it would occasion the final winding up of the succession, the executor proposes to sell them at public auction.”

\Ye are not prepared to say that Elie Bougere has received all that he is entitled to under the showing made in the record, and is without interest further in the succession, and therefore the motion to dismiss can not prevail.

On the Merits.

The opinion of the court was delivered by

Manning, O. J.

The errors assigned, for which the opponent claims a reversal of the judgment of the parish court, are:

First — That the tableau was homologated without notice to Elie Bougere or to opponent, his assignee.

Second — The judgment of homologation was rendered and signed at chambers.

Third — Three judicial days did not elapse between the rendition of the judgment and the signing thereof.

Fourth — The judgment was rendered without proof of the correctness of any item thereof.

• Answering the first objection, the executor points to the proof of the jiublication of the filing which we find in the record complete, and insists that such publication is notice to all persons concerned, while the opponent maintains that her assignor is an heir and entitled to special notice or citation. Elie Bougere was a legatee. He acquires his right to a part of his relative’s property from a provision in the will. The notification of the filing of the account and tableau of distribution of an executor operates as a citation to all persons concerned, creditors as well as legatees, and the homologation of the account and tableau bars all further inquiry as to all matters included therein. Succession of Peytovin, 10 Rob. 118; succession of Egána, 18 An. 263.

The Code requires the judge to order, on demand of the administrator, that the creditors and legatees of the succession be notified to show cause within ten days why they should not be paid according to the tableau of distribution presented by him. C. C., article 1057, new number 1064. And in Millaudon’s case it is said the published notice prevents an heir who has neglected to oppose payments to creditors from contesting their legality: 6 La. 225.

It appears the judgment of homologation was signed at chambers, and the opponent quotes article 543, Code of Practice, requiring all judgments to be read by the judge in open court. Under the constitution of 1852, which gave the Legislature authority to confer certain powers on clerks, and under the legislation subsequently had, clerks had power to homologate the accounts and tableaux of executors so far’ as not opposed, and this was necessarily done in chambers. The parish judges are charged with this duty under the present constitution, and are required to hold frequent probate terms to facilitate the settlement of estates, when judgments should be entered. A judgment prepared and signed in vacation by the judge in a case in which no decree could be rendered in chambers, has no effect until entered upon the records at the ensuing court. Dorsey vs. Hills, 4 An. 106. The judgment of homologation in this case was rendered in chambers and was entered upon the records in open court at the ensuing term. It is true that in the interval between the rendition of the judgment (nineteenth of July) and the first day of the next term (twenty-fifth of July) the opposition which commenced this litigation was filed, viz.: on the twenty-second, and on the first day of the term opponent ruled the executor to show cause why the judgment should not be.vacated; but we have already said the publication was notice to the legatee and to his assignee, and the opposition came too late, and the rule was still later.

On the third assignment of error, wo do not think three judicial days must elapse between the homologation and signing the judgment; and to the fourth, that there was no proof of the correctness of any item of the account, the executor is uot driven to proof of each separate item of his account unless it is opposed. “ The presumption is in favor of the executor, who is an officer of the law, and direct proof of every item is not required,” said the court in the succession of ‘Wodcrstrandt, 19 An. 494.

It would have been more regular to have filed the vouchers for each item when the account was filed, and they could have been demanded by any opponent who had acted in time. Other legatees, who are more largely interested than the opponent, do not appear to have discovered the objections set forth by her, and it is undeniable that-they had opportunity to object. That circumstance does not conclude opponent, for own const at that one legatee will not object to what another approves. But it relieves_us of any apprehension that by dismissing her opposition and rule any substantial injury is done to the interests of Elie Bougére, of which she is assignee.

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

On Rehearing.

The opinion of the court was delivered by

Manning, O. J.

A rehearing was granted of this cause because of our doubt of the correctness of the statement that the judgment of homologation was rendered and signed in vacation, and which we declared had no effect until entered upon the records of the ensuing term. We meant by this, that said judgment, thus rendered in vacation, was not complete, or, to state it more broadly and more perfectly, that the power to homologate accounts in chambers, which was formerly confided to the clerks, no longer exists, and the homologation by the parish judge under the present constitution must be made in open court, and if made in chambers in vacation derived no force or effect from that fact, but must be renewed, as it were, in open court, and spread upon the records.

We are now informed that this judgment was signed during a recess of the parish court, which had adjourned from a day anterior to the nineteenth July, the day the judgment was rendered, to the twenty-fifth of same month. It was not a new term that commenced on this latter day, but the court re-opened its existing term, and on the first day it was thus re-opened the opponent filed her opposition.-

In order, however, that our ruling may be freed from any doubt, and not be confused by qualifications, we now say that the parish judges have not the right to homologate the accounts of executors in chambers. It must be done in open court. The legislation that accorded to clerks the power to homologate accounts had its origin and its excuse in the necessities of the system then established, and this power could be exercised in chambers only after a much longer publication (thirty days) than was required for homologation, made by judges in open court. This power to homologate accounts in chambers disappeared with the system of which it was a prominent as well as anomalous feature, and these judgments of the parish judges can now be made only in term.

It follows that the opposition was filed- in time in the present case, for there was no judgment rendered on the twenty-fifth, when the court reopened. The executor contented himself with producing the judgment rendered on the twenty-second, out of term, and that did not preclude the opponent from taking action against the account.

It is therefore ordered that the cause be remanded to the lower court for trial of the issues raised by the opposition of Amelie Richard, and to that end, it is adjudged and decreed that our former decree is reversed and set aside, so far as it conflicts with that now rendered, and that the succession pay the costs of this appeal.


author: Spencer, J.

text:
    No. 6140.
    Succession of Drauzin Triche.
    Tlie purchaser oí property sold at probate salo, which is incumbered by a mortgage antedating the title oí tho deceased owner, is entitled to reserve in his possession enough oí the purchase price to satisfy tho mortgage.
    The creditor of an insolvent succession, with a first mortgage on a piece oí its property, who buys in tho property, may retain in his hands tho amount- of his mortgage; provided, he gives soeurity to refund whatever may be finally shown is not to bo applied to his mortgage.
    But tho creditor with an inferior, or concurrent mortgage, who bids in the property, must pay over the amount of his bid.
    A PPBAL from the Parish Court of the parish of Lafourche. Knobloch, A J.

      Clay Knobloch, for administrator and appellee.

      Louis Guión, for Jules Lapéne.
   The opinion of the court was delivered by

Spencer, J.

Drauzin Triclie died leaving a considerable estate, consisting of movables and several tracts of land. Tho estate appears to be largely insolvent — no less than forty mortgages and privileges being certified against it.

On an undivided fourth of one of these tracts of land Pierre Rousseau holds a special mortgage and vendor’s privilege for several thousand dollars, imposed and granted, not by Triche, but by his vendor.

Sundry legal and judicial mortgages are inscribed against Triche, and subsequent to some of these there is inscribed a special mortgage on the whole of the above-mentioned Rousseau tract in favor of Lapéne & Ferré for oyer six thousand dollars. Tho correctness of this debt to Lapéne & Ferró is not contested, but admitted and recognized by the administrator of Triche.

Certain other parties, mortgage creditors, took a rule on the administrator of Triche and obtained an order to sell all tho property of the estate to pay debts. Lapéne & Ferré also obtained an order for a meeting of creditors of the estate as insolvent, but the administrator enjoined the proceeding, and nothing'further seems to have boon done under the order. In tho mean time the property of the estate was sold in lots, and Lapéne bid off lots to an amount exceeding ton thousand dollars. Most of tho lots bought by him wore subject to the mortgages of Rousseau and of Lapéne & Ferre; but some of them were outside of the lands subject to said mortgages, as were also certain movables bought by him. The sheriff demanded of Lapéne the amount in full of his bid, in cash, bub tho latter refused to pay, alleging —

First — That ho had tho right to retain in his hands the amount of the Rousseau mortgage, so far as it operated on the lots bought by him; and,

Second — To retain the amount oí the mortgage oí his firm, Lapene & Ferré, until final settlement oí the estate, upon giving security ior restitution of such portion thereof as might bo declared not applicable to said mortgage.

The sheriff and administrator thereupon took a rule upon Lapene to show cause why tho property bid in by him should not be resold, a la folleenchera; and Lapene in his turn took a rule on the sheriff and administrator to show cause why ho should not be put into possession and title be made to him of tho same property.

Those rules were tried together, and the probate court made the former absolute and discharged the latter. Lapene prosecutes this1 appeal from the decision of both cases.

The questions presented are, did Lapene have the right to withhold—

First — Tho amount of the Rousseau mortgage and vendor’s lien so far as operating, up on the lots bought by him ?

Second — The amount of the mortgage due his firm of Lapene & Ferré, upon giving security for restitution ?

So far as relates to tho personal property and lots bought, not embraced in his or Rousseau’s mortgage, wo see no possible right in Lapene to retain the price.

As regards the first question above put there is no doubt that the projicrty passed subject to and incumbered by the Bousseau mortgage. A probate sale divests only such mortgages as were imposed by the deceased. 9 L. 13; 11 An. 383; 3 R. 5; 8 R. 99.

A purchaser is bound for nothing beyond the amount of liis bid. The administrator of Triche had no right to receive, and therefore no right to demand, payment of the amount due to Bousseau, who was not a creditor of Triche, and whose mortgage antedated tho latter’s title. The amount due to Bousseau on the lots bid off by Lapene must therefore of necessity bo loft in the hands of the latter, who by his purchase assumed its payment, and in whose hands said lots continued to be incumbered by it.

We see no reason for distinguishing this case from that provided for in articles 679 and 683, Code of Practice. These articles provide in substance that when there exist antecedent mortgages and privileges which the sale does not divest, the sheriff shall give notice that the property is sold subject to them and on “ condition that the purchaser shall pay into his hands-whatever portion of tho price of adjudication may exceed the amount of the privileges and special mortgages to which such property is (sold) subject;” “ that the purchaser shall be entitled to retain in his hands, out of the price of adjudication, tho amount required to satisfy the privileged debts and special hypothecations to which the property was (sold) subject.”

True, these articles relate to sales of real estate under writs of fieri facias, but we apprehend that they are equally applicable to sales under orders of seizure and to other judicial sales where the sale will not have the effect of divesting the property of such preferred mortgages and privileges. In point of fact the administrator of Triclie certainly ei mid not sell and deliver a greater right in the property than Triclie himself had; and his right in that property was subject to the Rousseau mortgage.

The property was only worth what it would bring, and the price bid must be taken as its absolute value, and this pre-existing and continuing mortgage must be considered as embraced in that price. The amount of said mortgage therefore, so far as it operated upon the lots bought, must be deducted from the bid and left in the hands of the purchaser. There would bo no justice in permitting .the estate of Triclie to enrich itself to the extent of the Rousseau mortgage by imposing its payment on Lapéne over and above the value of the property. The article 2535, Civil Code, has no application to this case.

The second question relates to Lapéne’s right to retain in his hands the amount of the mortgage due his firm.

The estate of Triche is clearly shown to be insolvent by the administrator’s provisional account, and should, perhaps, have been administered as such under the direction of its creditors. But that course seems to have been defeated, and the property sold at ordinary succession sale to pay debts.

As, however, the estate is insolvent and to lie distributed in concurso, the rules applicable to insolvent estates may very properly be applied here.

In Goodale vs. His Creditors, 8 L. 302, the court held that at a sale of the property of an insolvent, provoked by the first-mortgage creditor, he may, if he purchases the mortgaged property, retain the price on giving security to refund such portion thereof as may'on final settlement be found not applicable to payment of his mortgage; but if there bo superior or concurrent mortgages, he can not so retain tlio price.

In 11 An. 594, Justice Buchanan as the organ of the court says it seems as well settled that a mortgage creditor purchasing at probate sale may retain the price upon giving security. Justices Slidell and Spofford dissented on the ground that in that case the mortgage was tacit and the debt disputed and in litigation. On rehearing, Merrick, Chief Justice, delivering the opinion (Buchanan and Voorhies dissenting), held that, whatever may be the law as to purchases by holders of special mortgages, the holder of a tacit mortgage can not retain tlio price until his claim is liquidated.

We think the better opinion is that a special mortgage creditor first in rank may, if he purchase the mortgaged property at probate sale, retain the price upon giving security as stated; but if there exist mortgages superior or concurrent, he must pay over the amount of his bid.

An examination of the record in this case does not enable the court to decide definitively upon the rights of the parties. The provisional account and tableau filed by the administrator (and which it seems is contested) and the mortgage certificate in evidence show certain judicial and legal mortgages on the property subject to Lapéne & Ferre’s mortgage older than and therefore superior in rank to theirs. But as there may be other property which must be first applied to these general mortgages, and as their amounts are perhaps in dispute, we think it safer to remand this case in order that the existence, amounts, and rank of these general mortgages may be ascertained and fixed contradictorily. If it shall be ascertained that said legal and judicial mortgages are preferred and must bo paid in preference to Lapéne & Ferre’s mortgage out of the property embraced in the latter, then the rule should be made •absolute requiring Lapéne to pay over the surplus, after deducting the Boussoau mortgage, and in default, within a time to be fixed, ordering--the property to be resold á la folie enohere. If said mortgages are found not to exist, or not to be preferred to Lapéne & Ferre’s mortgage on ¡said property, then the rule taken by Lapéne on the sheriff should be made absolute, and the sheriff ordered to make the title upon said Lapéne giving satisfactory security'to refund such sum as may be necessary on final settlement of the estate. So far as relates to lots and personal property bought by Lapéne, not embraced in the Boussoau and Lapéne & Ferré mortgages, of course he can not pretend to hold the price, and to that extent the judgments appealed from must be affirmed.

It is therefore ordered, adjudged, and decreed by the court that the judgments appealed from be avoided and reversed, except so far as relates to the lots and personal property bought by Lapéne not subject to the Bousseau and Lapéne & Ferré mortgages; and it is further ordered that this case be remanded to be proceeded with according to law and in conformity to the views herein expressed, and that appellee pay the costs of this appeal.


author: Ludbling, C. J. Manning, O. J. Marr, J.

text:
    No. 4692.
    James Reid v. Louisiana State Lottery Company.
    The oral or written declarations of an alleged co-conspirator will not be admitted in evidence, until the conspiracy itself has been proved. Nor are such declarations to bo received against another alleged co-conspirator, after the object of the conspiracy has been achieved.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J. Trial by jury.

      Hace, Foster & F. T. Merrick, and Finney & Miller, for plaintiff and appellants.

      Joseph P. Hornor, B. S. Bennee, A. A. Atocha, and Semmes $ Mott, for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Ludbling, C. J.

The motion to dismiss this appeal is based on a defect in the certificate of the clerk — the want of his signature. The omission appears to have been supplied since the filing of the motion, and the appéllant has asked for an order to compel the clerk to sign the certificate nunc pro tunc, if it be considered that the clerk improperly signed the certificate without the permission of the court. This order could be applied for and could bo granted at any time before trial, and, as the certificate is now signed by the clerk, to grant the order would be doing a vain thing. It is ordered that the motion be refused.

On the Merits.

The plaintiff sues the defendant for thirteen thousand dollars upon a lottery ticket which he alleged drew a prize of that amount. He alleges he purchased the ticket' on the eighth of February, 1872, in Bayou Sara, and that the lottery was drawn on the same day in New Orleans.

The defense is that the policy ticket sued upon was fraudulently made out and entered upon the “Begister” or “Book of Plays,” after the lottery had been drawn, by the employee of the defendant, who combined and conspired with the plaintiff and others to defraud defendant. .

The case was tried by a jury, who rendered a verdict in favor of the defendant. The plaintiff appealed.

Several bills of exceptions were taken, but the defendant having waived in this court all objections to the evidence, it will be necessary to consider only one of the bills of exceptions. It is the bill of exceptions taken to the reception of the testimony of Guthreaux in regard to declarations of Innerarity, the employee of defendant, and letters of said Innerarity to said Guthreaux in relation to the alleged conspiracy. The letters are dated December 13,1871; January 1,1872 ; February 1,1872; February 11,1872 ; June 8,1872 ;. and July 2, 1872.

Innerarity’s testimony had been taken for the plaintiff twelfth of June, 1872; and for the defendant October 12,1872. Most of these letters had been sent by mail and had been received by Guthreá/ux shortly after their dates respectively. The objections urged against this evidence were that “ the declarations and letters of said Innerarity, to which the plaintiff was no party, can not make evidence against the plaintiff; and that said Innerarity had not been interrogated on this subject, and, if admissible at all, it should have been shown by him and not by this witness, as this made it hearsay testimony.”

The objections were properly overruled. The evidence was admissible on the ground that the acts and declarations of one conspirator are-admissible against his accomplices, or as part of the res gestee. Mr. Green-leaf says: “ There are other declarations which are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others ; and each during its existence has its inseparable attributes and its kindred facts materially affecting its character and essential to be known in order to a right understanding of its nature. These surrounding circumstances, termed the res gestae, may always be shown to the jury along'with the principal fact, and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion.” Sections 108 to 111. Again he says : The term acts includes written correspondence, and other papers relative to the main design.” Page 123.

There is no other question of law involved in this case.

It is not our province to disturb the judgment of the district judge or the verdict of a jury with regard to questions of fact, except such judgment or verdict be manifestly erroneous. After a careful examination of all the evidence in the record, we can not say that the verdict and judgment are manifestly erroneous.

It is therefore ordered that the judgment of the lower court be affirmed with costs.

■Wyly, J. I dissent, and will file my reasons hereafter.

On Rehearing.

The opinion of the court was'delivered by

Manning, O. J.

This suit is for the recovery of thirteen thousand six hundred dollars, a prize drawn by plaintiff in the lottery company on the eighth of February, 1872. In the previous December, John J. Innerarity had opened a branch office of the company at Bayou Sara for the purpose of vending lottery tickets, He presented, on his arrival, to Messrs. Mumford & Brother a letter of credence from Pike, Brother & Co., written, it appears, by request of C. T. Howard, the President of the company at New Orleans. This letter accredited one Hollingsworth, but Innerarity opened the office, and was treated by all parties as the person designated in the letter.

The mode prescribed for conducting this branch office was precautionary, and well calculated to guard against fraud or malpractices. At half-past three o’clock every day Innerarity was to close his office, having already made a certificate of his sales, which, it appears, is called the “ book of plays,” and which he was required to envelope with a heavy covering, seal it with wax, stamp it, and deliver it to the Mumford Brothers, or one of them, who thereupon were to deposit it in their safe, and send it to Pike, Brother & Co. at New Orleans by packet steamer. The drawing of the lottery was made at four o’clock same day here.

Shortly after midday of the eighth of February the plaintiff bought the ticket of Innerarity, who made his return the same afternoon before the required hour to Mumford, who in his turn indorsed the package in the usual way, and deposited it, sealed and stamped, in his safe, and it was forwarded to the main office in New Orleans at the regular time. The result of the drawing was usually known at Bayou Sara the next morning, and accordingly on the ninth Innerarity received the regular report from the company, showing that Reid’s ticket had drawn the prize for the amount of which he now sues.

The defense is, that there was a fraudulent combination between all these parties to practice a deceit upon the lottery company, and that it was effected by substituting another book of plays to the one deposited with Mumford, which was made after the news of the drawing reached Bayou Sara. This new book of plays conformed to the actual drawing. The theory of the defendant is that Innerarity received intelligence early on the ninth of the actual drawing, made his book to contain the numbers which had drawn the sum already mentioned, and got possession of the sealed package delivered to Mumford the preceding evening, and took out the book made then, and put this new one in its place.

It may be well to mention that this “ book of plays” is nothing more than a piece of thinnest paper, upon which is inscribed in numerals and in technical terms the plays made by each player, or ticket-purchaser^ We discard the use of the jargon employed to describe the operation, and have learned only enough of it to enable us to unlorstand what was meant by the parties.

The testimony of Innerarity was taken on the twelfth of June, 1872, before the trial of the cause, in which he details the sale of the winning ticket to the plaintiff, the registry of it, the inclosure of this latter in the-sealed package, and its delivery to Mumford — in short, showing the regularity of his proceedings, and their conformity to the regulations prescribed for his guidance by the company. On this occasion the plaintiff addressed to him this question: “ It is alleged in the defendant’s answer that the ticket sued on was made out and so entered on the registry, after the drawing of the lottery, with the fraudulent design of defrauding the respondent, and that this was. done by himself (the witness), then acting as vendor, and in connection with and to the knowledge of the plaintiff and others who conspired with and assisted him in that fraud. What do you say in response to that charge ?” His response was: “ I say it is false.”'

In the following October Innerarity’s testimony was taken on the trial by the defendant, and he then recites with minute circumstantiality the progressive steps of the plaintiff and himself in perpetrating the fraud charged upon them, and unblushingly publishes his villainy. According to his account then given, the plaintiff obtained possession of the book of plays, which he had delivered sealed to Mumford, and returned it to the witness about five o’clock of the evening of the eighth. At seven o’clock of the morning of the ninth the steamer Katie brought to him the report of the previous evening’s drawing, and he then made a new book of Reid’s play, conforming to the successful numbers, and substituted that for the one first inclosed in the package, which had been broken open by him for that purpose. In other words, he sustains the defense, and confesses his previous perjury.

• It is unnecessary to say that this witness is not to be believed. Nothing that he said on either occasion is entitled to any credence, except in so far as it is confirmed by other witnesses, or supported by the circumstances attending these transactions, or is in conformity with the surroundings of the parties. We have, however, his letters, contemporaneous with these events, which, unless otherwise explained or construed, would give color to the defendant’s theory, and the witness’s last version of this transaction.

Innerarity’s correspondence with a resident of New Orleans of the tenth of February, two days following the drawing, contains the following sentences: “ Many thanks for Thursday’s drawing. Katie came in beautiful time, 7 a. m., best time she has made since I have been up here. Put in on Thursday’s book for a, c, f, * * * A, B, 1, 2, and 6; you know, pretty good hit is it not ? Will explain when I come down; am satisfied O. T. H. will want to interview me now.” On the eleventh he writes informing his correspondent that the plaintiff left that morning for New Orleans, having a ticket for §13,600 in which he is interested to the amount of one-third, less a small deduction, and adds: “ I wish you would keep me posted. In ease the company makes an immediate settlement, telegraph me to come down. I don’t doubt but that Reid will play fair, but as our acquaintance is only of a couple months standing, and he so readily agreed to beat Charley Howard, ho might possibly boat me. * * My reasons particularly for asking you to keep an eye upon the money in case it is paid, is because a certain uneasiness on my part caused by a remark of Reid’s. After I made the proposition to him he told me that Mumford made the remarle, I have no guarantee you fellows will not go back oil me,’ and says .lie, ‘I said, to him, if there is any go back at all, it will bo you and I that will go back on innerarity.’ -K- * * These are my reasons for asking you to look out for me. When two such intimate friends as Reid and Mumford doubt each other, why I want some one like yourself, etc.”

These assertions would bo entitled to great weight if the source from which they come were not so impure. We must read them by the light of other information, derived from the same parties, that the writer’s main purpose in accepting the agency at Bayou Sara was to insure a pecuniary benefit to himself, to be obtained by practicing a fraud upon his employer. It will not escape remark that this accords in one aspect with the theory of defendant, who urges, not without plausibility, that this was the special occasion selected by the agent to practice the fraud contemplated by him. But it was impossible to perpetrate that fraud, in the manner in which it is said to have been done, without the active cooperation of Reid and the Mum fords, and w; shall see further on the impossibility of such co-operation. Our theory is, that after Innerarity had ascertained the success of Reid's play, he instantly concocted a scheme to evolve benefit to himself out of it, and these letters wore the first efforts of his artful ingenuity in that direction.

Much importance is attached to the time when the Katie reached Bayou Sara on the ninth. If she made her first landing there at seven o’clock a. m. of that day, there would have been ample time for Inncrarity to have made the substitution of the false play. But time, was not the only thing needful to enable him to accomplish that. The assistance of others was absolutely necessary.

John P. Mumford’s testimony is that the scaled package containing the plays in the lottery of February 8 was handed him on the afternoon of that clay by the clerk Phillips, and he deposited it in the sub-treasury of the safe, locked it, put the key in his pocket, and was absent from the town with the key until the next day, and that no one could have got the package from the safe but his brother, who lia.l the only other key.

F. M. Mumford says that neither Reid, Innerarity, Phillips, nor any one else, could have got the package out of the sub-treasury; that his brother went in the country with one key and witness had the other, and that the package remained where liis brother had put it undisturbed until it was taken out and forwarded to New Orleans, as was their custom to do every day. There was no way of getting the package out, save with one or other of the keys, or by breaking open the safe, and the safe was not broken open. Both these witnesses denounce the contrary statement of Innerarity as false.

M. P. Phillips, the clerk, says that Innerarity handed him the package of plays on the afternoon of the eighth of February, shortly before four o’clock, and that he delivered it to John P. Mumford, who put it in the sub-treasury of the safe in witness’s presence, and no one thereafter could have access to it but the two Mumfords.

Beid, the plaintiff, repels the • charge of his complicity in the alleged abstraction and alteration of the book of plays as false and malicious. He did not know, on the eighth or ninth that this book was over deliv-' ered to the Mumfords. It was not until afterward that he learned that the Mumfords were the custodians of it by arrangement with the lottery company. He swears emphatically that neither Innerarity nor any other person ever made any proposition to him such as that witness has deposed in his last testimony; that there was not any collusion between him and Innerarity, and that he bought the ticket before two o’clock on the eighth, regularly, and in the same manner of previous purchases.

But this is the testimony of parties who are implicated. They are alleged to be the co-conspirators of the agent of the defendant. Resort is then had to proof of the character of these persons. Twelve witnesses, themselves above reproach, have sworn that the Mumfords and Beid are incapable of the act attributed to them; that they are men of recognized integrity and truthfulness, and that the act is so out of harmony with their daily walk and conversation that it is incredible. And if a blameless life, and erect moral attitude, preserved during the mutations of business and social life, is not a shield to protect him who bears it from the shafts of malevolence and perfidy, where shall we find one ? The changes which have been made both in the law of evidence and the qualifications of witnesses, have opened the door to much testimony that in former times would have been rejected, and the character of a witness has thereby become of increased importance. Courts must scrutinize and weigh testimony as men do in the ordinary routine of life, and particularly must this court do so, since it is entrusted with the power to review all the facts and to reverse or amend the verdict of juries. And as men of sound mind and unbiased judgment would not in the most trivial matters of ordinary life believe a confessed perjurer as against three reputable men. so we can not give our judicial sanction to a defense based upon the theory that the three reputable men are perjurers and the perjurer has alone told the truth, and told it, too, upon one occasion only, and at the very time when he avows his previous false swearing.

We are reminded that the verdict of the jury was for the defendant, and it is urged that verdicts should not lightly be disturbed. The jury were deprived of much important testimony by the ruling of the judge, presently to be noticed, and they had not before them all that we have, the excluded testimony having come up, subject to the bills taken to that ruling. But it is a part of our func ion to ascertain whether a jury has rendered a proper verdict, and if not, to render one, such as they should have done, and to give judgment accordingly. Under the common law, the jury has a special and exclusive function. It alone can determine the questions of fact. This principle is deeply imbedded in that system. But a jury is an anomaly, an excrescence, in the system of the civil law. There the praetor, .the judge, decides law and fact, and the jury has been superadded here by a sort of contagion imparted by our sister States, and has been adopted so recently in continental countries, whore the civil law prevails, that it can scarcely yet be said to have become acclimated there.

The jury had not before them the deposition of Innerarity wherein he pronounces the allegation of a fraudulent conspiracy between himself and the plaintiff to be false and unfoundod; wherein he details the regularity of the whole transaction, and vouches the good faith of all the parties. This testimony, which was offered to show what the same witness had formerly sworn to in the same cause, was excluded by the judge for the reason, “ as the witness is in court giving his evidence orally, the former deposition is dead, null, and void, and can neither be received in evidence nor referred to for the purpose of contradicting the witness.”

This ruling is remarkable, and the reason assigned for it is more remarkable than the ruling. It is proper to observe that the counsel who have presented the defendant’s case to this court declined to countenance an error so patent and gross, and therefore waived our consideration of the bill.

The only bill necessary for us to consider is that taken by the plaintiff to the admission of Innerarity’s letters. It will be seen that we have treated these letters as if they were properly admitted, by quoting from them, and thereby giving to defendant the benefit of all the testimony lie had offered. But they were inadmissible, and for the reason that they were offered to show the assertions and statements of one of the conspirators in this scheme of spoliation, when no conspiracy had been proved. It was only charged. It should have been proved first, and a basis thus laid for their introduction. There is another reason for their rejection quite as good. The common enterprise was at an end. The conspiracy, if any existed, had accomplished its purpose, but these letters were written subsequent to that accomplishment, and nó conspirator is permitted to affect his accomplices by writings or declarations made subsequent to the accomplishment of the common design.

There is also urged in defense the non-payment by the plaintiff of the price of the ticket, which should preclude him from a judgment for the sum drawn by it, and the non-receipt by the defendant of the purchase price. The evidence is sufficiently satisfactory of the payment by the plaintiff to the agent, and if the defendant’s agent did not pay to him, his recourse must be by other means than a refusal to recognize the validity of the sale.

Lastly, we have been urged to remand the case for more precise proof of the time of the Katie’s landing on the ninth of February, and whether Innerarity boarded her on her first landing, and also touching the payment by Reid of the price of the ticket, and the defendant’s receipt of that price. We have already said that the time of the steamer’s landing, even if proved to be seven o’clock, as stated by Innerarity, would not render more probable the commission of the fraud by the plaintiff and the Mumfords. It would show a better opportunity for Innerarity to perfect the scheme and put it in practical operation. But the consent and co-operation of these other parties would still be wanting.

We rest our decision broadly and squarely upon the fact that the only witness who sustains the defense is unworthy of belief, and that the parties whom he implicates deny the accusation, tell consistent stories of the transaction, do not differ from each other even in unimportant particulars, and their veracity, integrity, and honor are put beyond and above all question.

It is therefore ordered, adjudged, and decreed that the decree rendered by our predecessors and the verdict of the jury in the lower court are set aside, and the judgment of that court is avoided and reversed, and it is now ordered, adjudged, and decreed that the plaintiff have and recover of the defendant thirteen thousand six hundred dollars, with five per cent per annum interest from March 8,1872, and three dollars costs of protest, and costs of both courts.

Disserting Opinion.

Marr, J.

I concur in the opinion and conclusions of the majority upon the questions of fact; and I think the obligation of the Lottery Company to pay the prize drawn in this case is as complete as it can bo in any case. .

The Legislature has seen fit to incorporate the Lottery Company, and to grant it the monopoly of the lottery business and of the vending of lottery tickets in the State; but I do hot understand that this law vests in the court any new powers or imposes on them any new duties.

. The Code of 1825, article 2952, declared that “ the law grants no action for the payment of what has been won at gaming, or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun, foot, horse, and chariot racing.” And it keeps this species of-gaming within bounds by empowering the judge “to reject the demand when the sum appears to him excessive.”

Municipal corporations were authorized to license gambling-houses, and the act of 1831, which was intended to suppress gaming-banks, expressly excepted from its provisions the gaming-houses licensed in the city of New Orleans ; but, under the dominion of the Code, no action could be maintained for the recovery of money lost or won in these licensed houses.

The act of 1868, by which this Lottery Company was incorporated, does not profess to repeal article 2952 of the Civil Code ; and it is reproduced .and re-enacted as article 2983 in the Revised Civil Code, adopted. March 11,1870.

Both these statutes are in force; and they are not in conflict. The Lottery Company may pursue its business, and the law protects it in the enjoyment of its exclusive right by severe penalties which effectually prevent competition. Those who choose may buy tickets, and the Lottery Company may pay to winners the prizes drawn. But the Revised Civil Code, later in date than the Lottery Act, still declares that “ the law grants no action for the payment of what has been won at gaming or by a bet;” and the courts, in my opinion, are bound to observe and to enforce this law. Those who choose may take their chances at this business. The law does not forbid it; but the law does forbid the judicial tribunals to enforce payment of what is won at “ gaming or by a bet,” and these terms in my opinion include the Lottery.

The record in this case vindicates fully the .wisdom of the Code in refusing to grant an action in such cases ; and the parties should be left to settle their disputes and controversies touching the fairness of their play, and all kindred questions, without the intervention of the courts.

In my opinion the judgment should be for the defendant, upon the single ground that the obligation to pay is one for which the law grants no action.


author: Manning, O. J.

text:
    No. 6621.
    State ex rel. Adrien Bonnet vs. the Judge ad hoc of the Second District Court, Parish of Orleans.
    A third person, not party to a suit, may appeal from the judgment rendered in it, provided he proves, or it appears from the record, that he has a pecuniary interest in the suit, and is aggrieved by the judgment.
    APPEAL from the Second District Court, parish of Orleans. Tully, J., ad hoc.

      Louqiie & Fernandez, for relator.
    The judge ad hoc for himself.
   The opinion of the court was delivered by

Manning, O. J.

The relator has applied for a mandamus directed to the judge ad hoc of the Second District Court for the purpose of compelling him to grant an appeal to this court from a judgment in favor ot the plaintiff in the suit of J. D. Tissot vs. the succession of Erangois Lacroix.

Relator was not a party to that suit, and his present demand is based up'on his alleged right as purchaser of the interest of Edgard Lacroix in the succession of Erangois, of whom Edgard is a forced heir.

The judge ad hoc denied the appeal upon several grounds, which are repeated in his answer to the rule to show cause why the peremptory writ should not issue. These are founded upon alleged defects in the title of the relator to the rights of heirship of Edgard Lacroix, arising from informalities in the proceedings under and by virtue of which the acquisition took place, and from non-compliance with essential prerequisites to the execution of a valid title.

One of these is, that the succession was represented in the suit by its administrator, who appeared by counsel, and the relator did not appear therein, nor did the heir, whose interests he now claims to own, and, being no party to that suit, that he had not the right of appeal.

The Oode of Practice accords the right of appeal not only to those who were parties to the cause in which a judgment has been rendered, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment. Article 571. This allegation was made by the relator, and if he were the transferee of the interest of the heir in the succession, he could exorcise the same right that the heir could, and, we are not prepared to say the heir could not appeal. But to entitle a third person to appeal from a judgment between others he must show that he has a pecuniary interest and has been aggrieved, and where his interest is not apparent on the record, he will he required to show it. Succession of Henderson, 2 Rob. 391.

When the motion for an appeal was made by the relator in the lower court, the parties to the suit denied that he had any interest, and upon the issue thus made much testimony was received, and the judge denied the appeal because that evidence showed that the succession of Frangois Lacroix is insolvent, and, further, because the relator’s bid for the interest of Edgard Lacroix was §667, which he did not pay in cash, but only a small portion thereof, to satisfy costs, retaining the residue and applying it to the partial satisfaction of his judgment; and, yet further, because the certificate of mortgages against Edgard Lacroix exhibited more than fifty thousand dollars of mortgages antecedent to the judgment of relator.

The evidence sustains these objections of the judge and justifies his refusal of the appeal.

The succession of Frangois Lacroix being insolvent, the heir had no interest in it, and the'purchaser of Edgard’s heirship must have bid a sum which would cover the mortgages antecedent to his own, and have paid his bid. lío did not comply with the. terms of the sale, and acquired no title. His motion for an appeal was, therefore, properly refused, and his application for the writ of mandamus is rejected at his costs.


author: Manning, G. J.

text:
    No. 6628.
    Frank Mayeur vs. B. Bloomfield & Co.
    When tli? exemption Alert by a defendant, is in substance an answer, and is reform! by tti- court to thn merits, the case is fairly at issue, and may bo tried and adjudicated, without any further answer.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Ilornnr & Beneilhi and F. TK Baker, for plaintiff and appellee.

      A. cO TP1 Voorhles, for defendants.
   The opinion of the- court was delivered by

Manning, G. J.

The defendants filed a plea of prematurity to the suit of plaintiff against them on a promissory note, which had matured on the eleventh of January, 1877. The suit was filed oil the sixteenth of that month.

The ground of the plea is that the note was “ for binding and ruling done by plaintiff for defendants, who were under contract with the State; and that it was agreed that plaintiff would wait for his payment until defendants collected the amount in question from the State; that defendants have unsuccessfully applied for such payment, and will comply with their contract with plaintiff as soon as the State shall have satisfied defendants’ claim.”

This exception was referred to the merits and notice given to the defendants’ counsel, who declined to participate in the trial. The note and protest were offered in evidence by the plaintiff, and he had judgment.

The defendants’ counsel insist that the ease should be I'emanded for a trial of their exception. They have had an opportunity to try it, and declined to do it. The reason assigned for their refusal is that there was no answer filed, no issue joined. The exception was in effect and substance an answer, and the lower court so treated it. There could not have been a more direct joinder of issue by any form of pleading.

The plaintiff has prayed damages for a frivolous appeal. His judgment was signed on the ninth of last month, and there has not been any unnecessary delay, and, though the defendants were in error in the matter of law, we are not prepared to say their appeal was frivolous in their own estimation.

It is therefore ordered, adjudged, and decreed that the judgment of the lower cozzrt be affirmed with costs.