author: Nicholls, O. J.

text:
    No. 11,774.
    Alex. W. Maas vs. Succession of Joseph Hernandez and Executrix et als.
    Where a contract for a fixed amount is entered into between the owner of property and a builder, according to certain specifications bo which a plan .is annexed as explanatory thereof, no charge in the absence of an agreement ■to that effect can be made as for extra services in the preparation of the plan. The builder appears in the transaction, not as an architect, but as a contractor.

      A builder claiming remuneration oyer and above the contract price of a building for certain labor and material, as having been furnished for extra work, must establish with reasonable certainty that they were used for that particular purpose.
    APPEAL from the Oivil Judicial District Court for the Parish of Orleans. Monroe, J.

      A. B. Phillips and Morris Marks for Plaintiff, Appellant.

      Henry Denis, Henry P. Dart and Albert Voorhies for Defendants, Ap-pellees.
    Argued and submitted May 21, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused February 24, 1896.

      Plaintiffs claim two thousand two hundred and thirty-four dollars •and fifteen cents, due for work, labor and material, for extras beyond a contract and specifications between him and the defendant.
    Erom a judgment against him plaintiff appeals.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question discussed by the parties was whether the defendant was liable for architect’s fees for the two plans of building for which plaintiff' claims remuneration. The first plan was that according to which the building (originally) was to be built. No reference is made in the contract in respect to payment for the plan. The second plan was never presented to or accepted •by Hernandez. It seems to have been a mere working plan intend-for the guidance of plaintiff’s workmen, in order to conform their work to alterations made in the building after its commencement. •Such as it was, it does not seem to have been adhered to, the building as finally made conforming to neither the first nor a second plan.

Plaintiff does not seem to have been employed by the defendant as an architect to furnish him a plan for a residence. Had he been so employed, and as such had furnished a plan, he would unquestionably have been entitled to remuneration for his services (even though subsequently he might have become a contractor for the construction of the building), but the plan referred to is not presented to us as having been made under those circumstances. It appears simply as part of a proposition made to the owner of a piece of property by a builder” to construct for him a certain house for a certain amount according to certain specifications, the plan being annexed as explanatory thereof. Defendant did not deal with plaintiff as an architect; the latter did not figure relatively to the plan as such, for if he was entitled to pursue that occupation, .he merged and lost it in this particular transaction in that of “ contractor and builder.” Viewed from that standpoint we do not think he could claim compensation for his services in furnishing the plan in the absence of an agreement to that effect. This conclusion appears to us correct, independently of evidence on the subject, but it is supported by the testimony of Mr. Freret, himself an architect.

Plaintiff’s claim for furnishing the second plan is not only open to the same objection, but it was never presented to or accepted by the defendant. It was simply furnished by plaintiff to his employees as a working plan, and then it was not adhered to as we have already said.

We do not think plaintiff entitled to a judgment on the other items of his account. Quoad them he stands as a plaintiff, and must make his claims reasonably certain. He has not done so. As an architect and builder, he was in position to have known precisely what materials he had used, from whom he had obtained them and at which prices; also what workmen he had employed, for how long they were employed and at what work .they had been placed. If the full amount paid for the building cost more than the contract price, plaintiff should have shown how much of the expenditures were occasioned by the alterations in the building. The evidence shows that the building was increased in some particulars and made smaller in others. The contract price of forty-three hundred dollars affords no-basis for fixing the rights of the parties.

The plaintiff has fixed upon certain material and work, and founded a demand for extra compensation on them, without attempting to show that this material or that work was used for the purposes-of the alterations, or had any connection with them.

There was no contract between che parties “for the building of a six thousand two hundred and three dollar cottage.”

The defendant shows that prior to the abandonment of. the contract by the plaintiff Hernandez had paid him two thousand seven hundred dollars in cash, and eight hundred and sixty-eight dollars and thirty-eight cents of bills — (three hundred and fifteen dollars and fifty-five cents to Langunthy, foreman, four hundred and sixty-seven dollars and eighty-three cents to the Central Manufacturing and Lumber Company, and eighty-five dollars to William Pattison for brick work (making a total of three thousand five hundred and sixty-eight dollars and thirty-eight cents, and that subsequently to this abandonment he had paid certainly one thousand six hundred and forty-one dollars and ninety-four cents in bills. The total payments of Hernandez on account of the house was therefore five thousand two hundred and ten dollars and thirty-two cents or nine-hundred and ten dollars and thirty-two cents more than the original contract price. We are satisfied he can be called upon to pay nothing more. If we are mistaken in this and plaintiff has really a claim to some amount against the defendant, he can only blame himself for his carelessness in keeping his accounts and in not establishing what that claim is. It would serve no good purpose to enter into-the details of the testimony in the case. It suffices to say that after a careful examination of the record, made not only before, but. during the vacation of the court, we ñnd no error in the. judgment appealed from, and it has to be and it is hereby affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,930.
    State of Louisiana vs. Polite Jim.
    The objection of an accused that the property he was convicted of stealing waff imperfectly and incompletely described in the indictment should be taken by demurrer or a motion to quash the indictment before the jury is sworn. It is too late to urge such an objection, as being one apparent on the face of the indictment, on a motion in arrest of judgment. State vs. Thomas, 30 An. 600. Rev. Stat., Sec. 1064.
    PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuisson, District Attorney, for Plaintiff, Appellee.

      John N. Ogden and R. Lee Garland for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant was indicted for petty larceny, found' guilty and sentenced to the penitentiary for one year.

The ground of complaint urged in the brief on his behalf is that-the accused was indicted, tried and convicted on the charge of “stealing four head of cattle of the value of fifty dollars.” That the indictment in making this charge was entirely too vague and uncertain to support a conviction, and can not form the basis of a plea of res judicata or autrefois convict im future prosecutions. Defendant-contends that the description of the property alleged to have been stolen is sufficient in law. That the property is described as four head of cattle, without giving the kind, color or description. That the indictment does not give the kind, whether horse, mule, ass or cow, with no brand or mark specified to apprise defendant of the necessary defence to make. These objections were urged for the first time in the lower court in arrest of judgment.

In reply, the prosecuting officers maintain that the jurisprudence of the State is so well settled that defects in an indictment are cured by verdict; that it is unnecessary to specially discuss the question. They cite Wharton Criminal Pleadings and Practice, par. 760; Revised Statutes, Sec. 1060, and the case of State vs. Thomas, 30 An. 600.

In the case cited this court, referring to a like objection made by the appellant therein, said: “If, as it is, that description was incomplete, its incompleteness would constitute a formal defect apparent on the face of the indictment, and defendant’s objection should have been taken and urgel, not, as it was, on a motion to arrest the judgment, but by demurrer, and on a motion to quash the indictment before the jury was sworn. It is too late to do so after trial and conviction.” (Citing the 1064th section of the Revised Statutes.)

That section declares that every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn, and not afterward, and every court before which any such objection shall be taken for any formal defect, may, if. it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no such defect had appeared.

Had the defendant urged these objections at the time and in the manner required by the section the indictment could have been amended. He can not hold them in reserve for a motion in arrest, taking his chances for an acquittal on the trial. (See State vs. Fontenette, 38 An. 61.) The decision in State vs. Thomas, cited above, controls this case.

The judgment appealed from is affirmed.


text:
    No. 12,007.
    Isabella Lumber Company, Limited, vs. Its Creditors.
    The cessio bonorum of a corporation can be brought about neither by an application for the same on its own behalf, nor by creditors acting adversely to it, under and through a respite improvidently granted to it. The provisions of the laws relative to voluntary surrender and to respite refer to natural persons. Corporations can not avail themselves of them.
    PPEAL from the Sixteenth Judicial District Court for the Parish of Tangipahoa. Reid, J.

      Saunders & Miller and J. A. Reid for Plaintiff, Appellee.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
    In April, 1896, W. L. Wright and the Sauls Ott Company, averring that they were creditors of the Isabella Lumber C .mpany and placed on the schedule as such; that the company had failed to pay the debts as ordered in the respite proceedings, and that they had the right on such failure to require a cession of the property of the company for the benefit of its creditors, and to have a provisional syndic appointed to take charge of the property of the company for the benefit of all its creditors.
    After a hearing the District Court vacated and annulled the judgment, granting a respite. It further ordered that the Isabella Lumer Company, Limited, make a cession of all its propert ^ for the benefit of its creditors at once, and that Levi' R. Stark be appointed provisional syndic upon compliance with the law, and that a meeting of creditors be held before the clerk of the District Court for Tangi-pahoa parish, ex-officio notary public, for the election of a syndic and other business.
    From this judgment the company has appealed.
    Plaintiffs in the rule have made no appearance in this court.
   The opinion of the court was delivered by

Nicholls, C. J.

Appellant contends that the liquidation proceedings against insolvent corporations are governed by Sec. 688 of the Revised Statutes; that the provisions of law regarding cessions were held by this court, in the case of Jeffries vs. Belleville Iron Works, 15 An. 19, to apply to natural persons only, and the proceedings against insolvent corporations were said to be those alone which are laid down in the Revised Statutes; than that decision has never once been questioned in the thirty-six years since its rendition, and that it has been quoted approvingly in Williams vs. Judge, 42 An. 73; that the law was not changed by Act No. 134 of 1888, which clearly did not contemplate the indirect introduction of a new mode of liquidating insolvent corporations; that it did nothing more than provide a new procedure for forcing a cession in certain contingencies from such debtors as were then subject to the operation of the insolvent laws.

That Act No. 134 of 1888 was simply an amendment of Art. 3093 of the Civil Code on the subject of respites, and that it could not be supposed that when the Legislature amended certain provisions under that title it contemplated a radical subversion of the long established principles of the law of cession; that the statute refers to an existing law as governing the election of syndics and the business which might come before the meeting of the creditors, but that the existing law governing the election of syndics did not permit the creditors of an insolvent corporation to elect a syndic for it, nor at meetings of themselves to determine upon any business affecting it. That this reference to existing law implied that the law was to be taken as it existed. Appellant, therefore, submitted that the judgment ordering the company to make a cession of its property was null and should be reversed.

In the case of “Commissioners of Exchange Bank vs. Mudge,” reported as far back as 1842 in the 6th Rob., p. 398, this court said that “ no law existed previously to the year 1842 which defined the insolvency of a corporation, or provided for either its voluntary or forced liquidation.”

In Jefferies vs. Belleville Iron Works, 15 An. 20, it was held that a corporation created under the act for the organization of corporations for works of public improvements and utility, approved March 15, 1855, can not avail itself'of the provisions of the act relative to the voluntary surrender of property, approved March 15, 1895; that the act referred to natural persons only.

The Isabella Lumber Company, Limited, believing that there was a distinction in this respect between a respite and a surrender, applied to and obtained from the District Oourt an order for the convocation of a meeting of its creditors to determine whether or not it should be granted a respite. A majority of the creditors having voted for the same, the proceedings of the meeting were approved and homologated and the respite ordered. It appears that some creditors did not appear nor vote.

If the creditors had refused to accede to the application for the respite, Art. 8098, O. 0., declares “the cession of property ensues and the proceedings continue as if the cession had been offered in the first instance.”

In other words an. application for a respite is considered in law as an original conditional offer of a voluntary surrender.

This legal result of a rejected application, coupled with the principles announced in the two cases cited, carries with it in our opinion, as a legal consequence, that relief through a respite can not be legally accorded to a corporation. All that it would have to do to bring about a voluntary surrender would be to apply for and have rejected its application for a respite. It would accomplish by indirection what it could not do directly. We are of opinion that a eessio bonorum of a corporation can be brought about neither by an application for the same on its own behalf nor by creditors acting adversely to it, under and through respite proceedings.

For the reasons herein assigned—

It is hereby ordered, adjudged and decreed that the judgment appealed from in so far as it ordered and decreed that the Isabella Lumber Company, Limited, make a cession of all its property for the benefit of its creditors at once, and that Levi R. Stark be appointed provisional syndic upon compliance with the law, and that a meeting of creditors be held according to law before Thomas E. Warner, clerk and ex-officio notary public, for the election of a syndic, and other business, be and the same is hereby annulled, avoided and reversed.

It is further ordered that the appellee pay costs of appeal.


text:
    No. 11,946.
    State of Louisiana vs. Azema Celestin.
    An accused person is entitled to compulsory process to force the attendance of his. ■witnesses, but where after haying beenduly subpoenaed some of them failed to-appear, he has not, by reason of that fact, an absolute right to have the trial of the case postponed or continued until after they should have been attached. The court has the right, before postponing or continuing the case, tobe informed as to the materiality, relevancy or necessity of the testimony,.which would be sought to be elicited through them.
    A person seeking to obtain the reversal of theverdict of a jury and the judgment, of a court on appeal should place matters before the Appellate Court in a shape such as to satisfy it that there has been injury as well as error.
    PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuisson, District Attorney, for Plaintiff, Appellee,
    cites 4 [An. 441, 33 An. 679,. 1344.

      John N. Ogden and O. W. DuRoy for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
    The defendant convicted of larceny and sentenced to the penitentiary for thirteen months, relies for a reversal upon grounds set forth in a bill of exception, in which it is recited that the cause being called for trial, five witnesses, Emanuel Jim, Ambrose Polite, Octave Stevens, John Richard and Etienne Puselier, ■were absent, of which the last four had been personally served, the return reading thus: “I have learned from different parties-that the within named Emanuel Jim is no more of this parish,, but of the parish of Rapides. (Signed) S. Fontenot, Dy. Sheriff;” that the accused asked for attachments against the-last four mentioned, and for a new subpcena for the first,, stating that as for the first witness he could by affidavit show that-he was living in St. Landry parish and could point out the place; that the District Attorney, in order to coerce a trial, asked accused to disclose what he expected to prove by these witnesses, in order to state whether he would admit that if present they would swear to the facts; that accused objected to this disclosure at this stage of the proceeding, for the reason that no motion had been made for a •continuance and that according to law this could be the only and proper time to call for the application of Act 84 of 1894, which objection was overruled for the following reasons, viz.: (1) Because the witness, Emanuel Jim, could not be found after diligent search, as shown by the return of the sheriff; (2) Because the District Attorney, to avoid delay or continuance, admitted that the witnesses, if present, wqpld swear to the facts which they were called to prove, which admissions were made to the jury, and moreover testified to by defendant as a witness in his own behalf; (see Act 84 of 1894; State vs. Primeaux, 39 An. 673; State vs. Hillstock, 46 An. 298) ; (3) Because no injury resulted to defendant by trial after admissions were made by the State and his own testimony heard, and because in the opinion of the court the motion was made for delay and not to obtain substantial justice, the case having been already fixed for trial at the same term for the 7th, 16th and 19th of October, 1896. At the foot of the bill it is stated: “To all of which rulings defendant excepted and tenders this bill, which was read and signed before judgment.”
    Defendant further contends that in forcing him to disclose the facts which he expected to elicit from the absent witnesses at the particular time and under the particular circumstances he was forced to do so, and in permitting the District Attorney to make the admissions he did, and in consequence thereof refusing to issue attachments for four of the absent witnesses'and a new subpoena for the other witness, who could not be found, the court violated his legal rights and was not justified in its course by the provisions of Act No. 84 of 1894; that before they could apply, by the very terms of the act there must be an existing application for a continuance and an existing affidavit accompanying the same. He denies that he applied for a continuance.
    Counsel for the State contends that the judge properly refused the subpoena, because the return of the sheriff showed that the witness could not be found after diligent search; that the attachments were properly refused because the District Attorney admitted that they would testify to the. facts which they were called to prove; that their admissions went to the jury and were corroborated by the defendant himself on the stand; that if accused attached any importance to the testimony of the absent witnesses he should not have allowed the admissions by the District Attorney nor testimony of the accused in support thereof.
   The opinion of the court was delivered by

Nicholls, C. J.

Act No. 84 of 1894, to which reference is made-in the bill of exception, declares that in all criminal cases, whenever either the State or the defendant ask for a continuance on the ground of the absence of an important or material witness, the other shall be entitled to an immediate trial on admitting that if said absent witness were present he would testify as stated in the affidavit made for a continuance, but in no case shall either the State or defendant be required, in order to get a trial, to admit that the statements made-in the affidavit for a continuance are true, but that the provisions of the act should in no way interfere with the trial judge’s discretion to grant a continuance on other grounds.

If, on the day the case was called for trial, the court, in the exercise of its judicial discretion, could have properly refused to issue a new subpoena for the witness Emanuel Jim and attachments for the other four witnesses and ruled the accused to trial, we do not see that an admission made by the District Attorney that those witnesses would, if present, swear to the facts which defendant declared were those which he proposed to prove by them, would prejudice him; on the contrary, he would have gone to trial with an admission in his favor, which he would not have had had the prosecuting officer thought proper not to make it. He intimates, however, that the Court forced him to disclose the character of his evidence, but we know of no way in which he could have been coerced in the matter. All that he had to do was to remain silent, refuse to make a disclosure and to stand on his legal right (if such he had) to have the witnesses subpoenaed and attached before going to trial and reserve a bill to the court’s ruling adversely to him as to that right. We must hold his making a statement in regard to what he proposed to show by his witnesses as having been made by him in his own supposed interest, when he ascertained that the subpoenaes and attachments were or would be refused.

The forcing of a disclosure and the making of a continuance or a postponement of a caáe dependent upon a knowledge of the reasonableness and materiality of the grounds assigned for the same are distinct matters.

The real ground of complaint should have been predicated upon the refusal of the court to issue the subpoena and attachments and proceeding at once with the trial.

If the court acted improperly and to the defendant’s prejudice in these regards, there would be no necessity to look beyond this in order to grant him relief.

The question then is whether the defendant was legally entitled to have the subpoena and attachments which he asked for, and the case postponed (if not continued) until they could be acted upon.

With respect to the subpoena, we think it appears from the bill of exception that counsel, in reciting the sheriff’s, return thereon, gave only a portion of the same, and that the balance of the return must have shown the various steps taken by the sheriff to make service. The steps must, in the opinion of the court, have been sufficient to show that further attempts would be useless. . The return is not before us.

The bill of exception states, relative to the four witnesses whom defendant desired to have attached, that they were served personally. We presume that defendant claimed under that condition of things, as an absolute right, that they should be attached and matters held in abeyance until action had been taken thereon. We understand him to claim that the court refused to recognize that right and insisted, as a condition of attaching the witnesses and giving further delay, that it should be informed as to what the accused proposed to show by the witnesses; and that thereupon accused announced the facts he expected them to establish, and upon this announcement, the, District Attorney admitted that, if they were present, they would swear to the facts stated; that the court, upon this admission being made, declined to order attachments and ordered the case to proceed.

The only decision we have found which would in any way support defendant’s contention that the court should have issued orders for attachments and held the case up temporarily, solely by force of the fact that the accused had named certain parties as witnesses in his behalf, and they had been served personally with a summons to attend the trial, without reference to any declaration or statement as to what the witnesses were expected to prove, is that of the State vs. Boitreau, 31 An. 190, in which the court said: “When to procure the attendance of witnesses,, the prisoner has in proper time ordered subpoenas to issue, he can not be compelled to issue attachments, swear to the facts which he intends to prove by them, or go to trial in their absence, until an earnest and fruitless attempt has been made to bring them in court.”

We do not find from an examination of that case that defendant’s ground of complaint was that the court had forced him to make a disclosure of the nature of the testimony which the absent witnesses expected to give. On the contrary, the nature of that testimony was voluntarily disclosed in an affidavit made for a continuance, but the court none the less forced the accused to trial, evidently on the ground that he had not used due diligence and that the negligence of the sheriff in not making service was to be imputed to them. This court held otherwise, and finding that the evidence expected to be elicited was of an important character, it set aside the verdict and judgment.

As a matter of course, if an accused party has taken all legal precautions and used all due diligence to procure his witnesses, and the sheriff has failed to take any steps to make service, defendant, independently of any question of what the witnesses would prove, would be entitled to have service made. He is entitled to compulsory process for his witnesses, but when process havin t. been duly served and some of the witnesses having failed to respond, the accused seeks a continuance or postponement of the trial, the right of the court to be informed as to the materiality, relevancy or necessity of the testimony to be elicited, with a view of testing the propriety of the application, has constantly been recognized. State vs. Bradley, 6 An. 556; State vs. Brette, 6 An. 653. The court declined to issue the attachments in this case, evidently as connected with the postponement of the trial. State vs. Johnson, 47 An, 1225.

Were we to concede to an accused party an absolute right to continue or postpone the trial of a cause until the parties whom he had caused to be subpoenaed had be n attached, we would open wide the door to fraud, collusion and interminable delays. All that a defendant would have to do to control the trial of a case would be to have names placed on the witness list, whether the parties named knew anything of the facts or not, with an understanding with some of these parties that they would not obey the summons of the court.

In State vs. Benjamin, 7 An. 47, this court said where an attachment against an absent witness on account of her condition was refused and the accused fails to apply for a continuance, no relief could be given in the Supreme Court.

In the case at bar no exception was taken to the refusal of the court to have a subpoena and attachments issued. Counsel in his brief denies that accused ever applied fora continuance. The objection actually urged is that the court coerced him into a trial upon an admission by the District Attorney that defendant’s absent witnesses would, if present, swear to the facts which he declared he intended to prove by them. The court does not place its refusal to have the witnesses attached exclusively on the ground of this admission. The court, among other grounds for its action, declares that in its opinion the motion was made fordelayand not to obtain substantial justice, the ease having been already fixed on the 7th, 16th and 19th of October, and because no injury resulted to defendant by trial after admissions were made and his own testimony was heard. This latter ground did not develop until after the court’s ruling, but there is nothing in the record to showed that accused had intimated to the court that the testimony he sought to elicit was not procurable from the witnesses actually present.

As the case is presented to us, it is an appeal to us to set aside a verdict without any showing of injury received by the accused. Appellant has not brought us to a knowledge of what he expected to have shown by the absent witnesses. Por aught we know, the matters in respect to which they were interrogated, were of the most trivial character, matters which would have had no influence whatever upon the verdict.

In State vs. Brette, 6 An. 662, Mr. Justice Preston said: “In civil cases it is well settled that error of law in the progress of a trial shall not affect the judgment, unless we can clearly see that it has produced substantial injustice. There is no reason why the same rule should not be followed in criminal cases. * * * It is necessary to know precisely what was the testimony sought in order to judge whether the case should be remanded to obtain it.”

We find no reason to set aside the verdict and judgment.

The judgment appealed from is affirmed.


author: Breaux, J.

text:
    No. 11,873.
    Succession of Dr. James C. Batchelor.
    The testator had bequeathed a promissory note to certain legatees named. The note, after the date of the will, was collected at the instance of the testator, and the amount placed to his credit. The legacy was of a note and not of a sum of money. There was revocation of the legacy.
    An ink line was drawn on the will, across the particular legacy; if drawn by the testator, as there is reason for presuming, it furnishes additional proof of intention to revoke the testament.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard J.

      Farrar, Jonas <& Kruttschnitt and Fred. Adolph for Executor, Ap-pellee.

      Brice & Rainold for Tutor, Appellant.
    Argued and submitted January 25, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Breaux, J.

In 1893 Dr. Batchelor died in Washington, leaving a will, viz.:

“Incase of my death it is my desire that the G. Master take charge of my effects and oblige by using one of these bonds to pay my funeral expenses; let it be plain. I own the vault in A. Home f 1 Tomb. I am not aware of owing any debts, except those of kindness; give the other to my sister, Mrs. Jeannette Hutchings, of Montgomery, Ala.; also my bal. in bank, for which I leave a check for my balance in Canal Bank. By this means I hope to avoid the necessity of opening a succession. Give the two thousand seven hundred and fifty dollar note (Smith’sj to G. W. Stem, of Adams street, Carrollton, to divide, and share and share alike, among his five children, to be kept at interent and given to them as they marry or go into business. My watch and chain to my God Son, J. B. Stem (one of said children). My books in lumber room to G. L. Library. The trunks and metal box in my office to be sent to the S. C. 33, 433 Third St., Washington. My small desk (in my room) to Minerva, one of G. W. Stein’s children. My Pho. Album to my sister, and the enclosed envelope to G. W. Stem and my best regards to all friends.”

“Do as you’d be done by.”

“ 2-7x90. (Sig.) J. 0. Batchelor.”

This will was in an envelope and bore the superscription: “Papers of Dr. Batchelor to be opened only in case of his death or his order. Left with his sister.”

Through the words in the will printed in italics, ink lines were drawn.

Part of the time prior to the death of the testator the will was in possession of his sister. At the time of his death it was in the trunk of the deceased, in the envelope sealed. It was taken from the trunk and subsequently handed to the executor, opened.

The note bequeathed was placed in the hands of an at'orney with power to collect.

On May, 1891, he writes to his attorney: “I wish it collected, because I propose to invest this amount in the' new bonds of the lodge;” and subsequently he writes: “ I leave it to you to sell the note at par and invest $2500.”

The note was collected a few weeks prior to his death. When advised of its collection by letter he expressed a desire to let the attorney retain the money.

The will was probated and letters issued to Mr. Charles F. Buck as testamentary executor. The executor in due course of settlement of the succession filed an account which was satisfactory to the widow and to the only son of the deceased. Prior to the filing of this account, George W. Stem, tutor named in the will, as legatee, had brought suit against the executor, claiming the amount of the note (referred to in the will as the Smith note). He, in addition, opposed the account for the reason set forth in his petition.

The following are the defences interposed to the claim for this legacy:

1. That the thing bequeathed had perished before the death of the testator.

2. That the erasure in the will had been made and approved by the ■testator within the meaning of the legislator, whereby.the legacy had been revoked.

8. That the clause in question is a prohibited ftdei commissum and therefore null and void.

4. That if the legacy is of a specific thing and valid, it is valid only to the extent to which the thing belonged to the deceased; it being property of the community.

Something was said in argument about the date of the will ; whether it was dated on the seventh of the second month or the second day of the seventh month of the year 90.

That question is not propounded by the pleadings and is therefore not before us for decision.

. Taking up the first proposition. It can not be denied, the testament is the property of the testator; it can not be a title for any one; he can do with it as he pleases and dispose of his property as he chooses, within the restrictions imposed by law.

The revocation may be made aut verbis autfaeta. Verbis by substituting a new will or by private act manifesting sufficiently the intention to revoke. Facta by destroying the instrument or by destroying the thing bequeathed. A thing is regarded as having perished, not only when it has been destroyed, but also when it has been changed into another thing or substance. The substance is not so much the material of which it is constituted as the form which characterizes it in esse and which differences it from other things.

Ooin Delisle de Donation et Testaments, Art. 1042 of the C. N.

Thus, by selling the property specifically bequeathed the testator manifests a change of intention which operates as a revocation of the legacy; for the property, in so far as he was concerned, has changed its character from the thing sold to the price stipulated. This revocation by the mere fact of selling can be avoided only by the expressed intention of the testator; evidenced as required to substitute the price for the thing bequeathed. The rule of tacit revocation by. sales applies to notes bequeathed due to the testator-; that are collected at his (testator’s) instance. The requirement in regard to intention, to substitute the money collected for the notes, also applies as in sales. In each, the sale or the collection of the notes, the thing bequeathed has undergone an absolute change in so far as relates to title and the character of the property owned.

The principle has been illustrated as follows:

If the testator has bequeathed wool with which he subsequently made cloth, the legacy is extinguished, and it is the same if having bequeathed boards he used them in making an armoir or in the construction of a ship. The thing bequeathed is regarded as no longer in esse, the legacy is revoked. Duranton, Vol. 9, p. 488. ,.

Again by the same commentator: If the testator bequeathed to Paul the claim due him by Peter, and he exacted or simply received payment, the legacy is revoked or destroyed. Nothing is bequeathed. Par. 462.

The note bequeathed was extinguished by payment.

Our attention was directed at the bar to the effect of novation; that novation, it was said, did not have a revoking effect, even under the Code of Napoleon. Code of Fuzier-Herman, Art. 1038, Notes 7 and 9. The limited number of our books enable us to consult only one of the decisions to which Fuzier-Herman refers in support of his note.

That decision does not sustain that view of the question.

Laurent, upon that subject, propounds the following: What does the legacy of a note include ? He answers: The testator does not bequeath a sum of money; he bequeaths a right against the maker. If he demands the payment and it is paid, can the legatee collect the cash received ? As a question of law, the answer must be in the negative. But the question of law is dominated by the intention of the testator as it was made manifest in case of 29th June, 1830, Dalloz No. 4351.

Laurent, Vol. 14, par. 166. “What we have said of payment applies novation.” Ib., par. 290.

Continuing, he says: Doctrine and jurisprudence admit that Art. 1042 (1700 of the C. C. of La.) applies by analogy. The legacy perishes when it is extinguished by one of the causes which puts an end to the obligation. If a claim bequeathed be paid it no longer exists, and there is an end of that particular legacy. But adds: The intention, however, of the testator may have been that the legatee should receive the amount collected. The intention should govern. Voluntas facit legem, in this instance. It becomes a question of facts* Ib., par. 290.

After a close examination, we have not found any evidence of intention of the testator to bequeath the money collected on the note. What we have said in regard to the effect of payment is true of novation. Par. 290, second paragraph.

Demolombe, commenting on Art. 1038 of the C. N. (1695 of the La. Codes), Vol. 22, p. 200, said (our translation):

It is thus that the conveyance by the testator of the claim bequeathed carries revocation. As much should be said of the collection by him of the claim, particularly if he demanded payment, for by this there is revocation of the legacy and the destruction of the thing bequeathed. The claim was placed in the hands of an attorney for collection, and the attorney testified that the probability of collecting it afforded to the testator some satisfaction. About two months prior to this testator’s death he was advised of the collection. He said nothing in regard to the legatees, and did not manifest the intention that they should receive the cash.

It is urged in support of the legatees’ demand that the testator has •never received the money; the thing bequeathed remained a debt ■due to the testator.

That it became a debt due by the attorney to him; that it underwent a change of form, not of substance, and its identity was not destroyed.

We think it sufficient answer that the return of the receipted note, of which the testator was fully advised, was his act. The money paid was his property, and as such was part of the succes.-ion, to be disposed of without reference to the note collected.

“It is in safe, hands,” was in substance the testator’s utterance when he was informed by his attorney of ibhe payment.

In Succession of Irwin, 63 An. 72, the conclusion of the court was in regard to the exchange by the testator of a claim bequeathed based on an indebtedness for the bonds of his debtor. The testator has not parted with his claim. The debtor remained and the “ original obligation remained and underwent no material modification save in the form of the evidence of the same.’” The court adds: “ It was an exchange by itself for itself.”

Here, there was no exchange; the debt was paid and the note was canceled. The case in hand is similar on this point to Hepp vs. Lafonta’s Executors, 4 N. S. 428, 429. The legacy “was not of a sum of money, but of a contract or debt; it was not perfect until the moment the testator died, and then it took place as to what was due.” This legacy did not include the amount the testator had collected on the contract or debt bequeathed.

We incline to think that some weight, as showing the intention, should be given to the fact that the ink lines were drawn across the words bequeathing the (Smith) note.

There is divergence between the Louisiana Oivil Code and the Code Napoleon on the subject of revocation in some respects, and in others none. Under similar provisions of the latter to the former, French commentators have announced that the approval of erasures in testaments may be shown by testimony outside of the will. Demolombe, Vol. 22, par. 252, p. 217; Laurent, Vol. 13, par. 188.

Parol is admissible to prove that the erasures were made by the testator. Ib. 268.

In Louisiana the rule in regard to presumptive revocation does not absolutely confine the proof to approval written on the face of the will. Succession of Muh, 35 An. 394.

We are not particularly concerned with the rule at this time further than to state that it is .certainly significant; the words covered by the pen lines exactly correspond with the changes we chink were intended by the testator when the note was collected and placed to his credit by his attorney. Our conclusion renders it unnecessary to decide the other questions raised.

We think the judgment should be affirmed.

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


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    No. 11,933.
    State of Louisiana vs. Maxille B. Fontenot.
    There was nothing illegal in the appointment of the attorney to represent the State, under the statute of 1886. The signature to the indictment as acting “ District Attorney ” was not an irregularity vitiating the indictment.
    A witness having been impeached by evidence of declarations inconsistent with his testimony, can be corroborated, by evidence of other declarations corresponding with his testimony made prior to impeaching statement.
    The dangerous character of a third person, present at the homicide, who made no demonstration against the deceased, and had had no difficulty with him, is not admissible in evidence.
    As a general rule the questions put to a witness must call for his knowledge of some fact; they must not, save in special cases, be framed to elicit the impressions or opinions of a witness.
    It is not error on the part of the court to refuse to give an instruction which had already, in substance, been given in the general charge to the jury.
    A PPEAL from the Eleventh Judicial District Court for the Parish ■i"* of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General and E. B. Dubuisson, District Attorney, for Plaintiff, Appellee.

      John N. Ogden and E. P. Veazie, for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for murder and was convicted of manslaughter. From the sentence and judgment of this court, he prosecutes this appeal. His counsel argues the grounds set forth in one of the bills of exceptions; the other bills of exceptions are submitted on their merit, without argument. There was also filed a motion to quash, on the ground that the indictment does not set forth that the District Attorney was sick, absent, or from any other cause could not act, and further, that the attorney who represented the State by appointment of the court was not “ acting District Attorney,” and that he was not authorized to sign the indictment in that capacity. This motion to quash was filed on a previous trial, which resulted in a mistrial, owing the the jury’s failure to agree.

On the second trial the record does not disclose that anything was said in the District Oourt about the demurrer, and here no mention was made of the ground it sets forth.

THE APPOINTMENT OE AN ATTORNEY TO REPRESENT THE STATE.

The court had the authority to appoint an attorney to represent the State for any of the causes provided by the statute. The record does not inform us that an appointment was made illegally and without necessity. Here the principle applies that all things are presumed legitimately done, until the contrary be proved. The second ground is equally as untenable. He was, in fact, acting District Attorney by appointment of the court, and the indictment was legal without any additional statement, such as “by appointment of the. court,” or words to that effect.

STATEMENT PRECEDING- IMPEACHING STATEMENT ADMISSIBLE.

The only objection argued by defendant’s counsel, as .we have already stated, is that á witness was directed to relate a previous un-sworn statement of the facts to the jury. Bill No. 1. The statement of the trial judge copied in the bill is: That it was pertinent to inquire how the witness related the facts of the homicide to said Edmund Belaire Fontenot, because counsel for defendant by cross-examination of the witness sought to show that he had made contradictory statements to other persons in relation to the facts of the killing, for the purpose of impeaching him. The practice on this subject is not always similar in the different jurisdictions. Corroborative evidence was admitted in Massachusetts Commonwealth vs. Bosworth, 22 Pick. 397, also in Pennsylvania and in some other States. 1 Sargent & Rawle, 536; 10 Ibid. 322; Coffin vs. Anderson, 4 Blackf. 398, 399. There are well-considered cases against the admissibility of such testimony, particularly when not restricted as to the time of the statement. We think that, where evidence has been offered tending to show bias, imprope motive or recent fabrication on' the part of a witness, statements accounting for the testimony given, made prior to the contradiction proved on the other side, is admissible. Thompson on Trials, Vol. 1, par. 579.

Although the facts of this case, as we interpret them, do not render it necessary to pass upon the question of the admissibility of such statements made subsequent to the asserted contradiction (the purpose of law being to prevent admitting subsequent self-serving statements), we are of the opinion that a witness having been impeached by evidence of declarations inconsistent with his testimony can not be corroborated by statements made subsequent to the con-tradictive statement, but this, under the facts, does not apply here. The defendant opposed the admission of the testimony without reference to dates, on the broad ground that it was not at all admissible. The bills of exceptions, as we understand them, were taken to reserve points to sustain that view. Under the circumstances of this case the evidence was properly admitted.

A decision of a properly constituted court upon a subject within its jurisdiction is prima, facie correct and legal. It was incumbent upon the defendant to obtain a ruling to distinguish between attempted corroboration prior, or subsequent, to the alleged contradictory statements by inserting in the bill of exception, whether the alleged corroborative statement was prior or subsequent to the contradictory statements.

As to statements made prior to the contradictory statements, it has been decided that they should be admitted only in support of the credit of a witness, and is not to be heard except in reply to some matter on the other side going to impeach him. It seems in this case, as we have already stated, that the attempt to impeach was not only made, but was unusually energetic.

Under well considered authority it has been held as proper for the trial judge ex proprio rrtotu (and imperative when requested by a de - fendaut) to instruct the jury that such evidence is admitted in support of the attempt made to place the testimony of the witness upon the same level as it would have been had no attempt been made to impeach him, but that it is not to be taken as substantive evidence.

FOUNDATION NOT LAID TO'ADMIT EVIDENCE OF DANGEROUS CHARACTER OF A THIRD PERSON PRESENT AT THE HOMICIDE.

Bill of exception numbered two was taken to the judge’s ruling, excluding testimony offered to prove the dangerous character of a third person who was present at the homicide and to show the motive this third person had to commit the act with which the defendant was charged. The defendant failed, the trial judge states, to show the asserted motive, and produced no evidence of an overt act or hostile demonstration on the part of this third person toward the accused.

Under this state of facts the testimony was properly excluded. The mere statement of the points sustained the ruling.

If there was a bill of exceptions No. 3 it is not of record. Presumably there was no such bill, and bill four followed two in the trial court.

COURTS IN THE EXERCISE OF SOUND DISCRETION CAN DIRECT AND LIMIT THE EXTENT TO WHICH A WITNESS SHOULD BE EXAMINED.

The fifth bill of exception was taken to the refusal by the court to allow the defendant to propound the question: “ Would you believe your own brother under oath as a witness in this case for the defendant? ”

Counsel claimed that the answer sought would discredit the witness by showing prejudice against the accused.

It was excluded by the court, because it sought to elicit the opinion of the witness and “ because the court thought that the cross-examination had gone far enough in the direction indicated by the question, and that it was time to put a stop to it.” As we understand the question it was not pertinent to the issue and was for reasons stated by the trial judge properly excluded.

QUESTION which WOULD HAVE ELICITED THE OPINION OE A WITNESS PROPERLY EXCLUDED.

Bills number six and seven were taken to the refusal of the judge to allow the defendant to propound the question: “ Did you not learn that Louis Deville was making at different times contradictory statements about the matter of the killing of the deceased?” The two bills do not differ materially and are therefore passed upon together. The judge states that he informed the accused that he could ask the witness if he knew of the .witness making contradictory statements.

The trial judge understood that the purpose was to elicit hearsay testimony, and, in consequence, his suggestion should have been followed. There was no prejudicial error in the ruling. Owing to some confusion in numbering, it seems that there is no bill of exception eight.

IE answer be responsive to question, defendant had no cause TO COMPLAIN.

As to bill nine, it was taken to the refusal of the judge to instruct the jury to disregard an answer of a witness, who was being examined. The question which elicited the answer was not copied in the bill. The trial judge informs us by his endorsement that the answer was responsive.

In the absence of the question by defendant’s counsel, the statement of the trial judge disposes of the objection.

THE STATEMENT HEARD WAS IN ITSELF COMPLETE, AND THEREFORE ADMISSIBLE IN EVIDENCE.

Bill 10 was taken to the admission of a conversation, heard by the witness, between the accused and one who was his friend. The objection was that the witness could not state the whole conversation, as he had only heard a part of the conversation.

The trial judge said, as part of the bill, that the witness stated •“that a bosom friend of the accused said to the accused, as they were passing witness: ‘ If they accuse you of this murder, they must be able to prove it,’ and that witness did not hear, nor any one else, that anything else was said before or after this conversation.”

As the conversation heard was complete in itself, as shown by the endorsement of the trial judge, it was admissible evidence.

QUESTION PROPERLY LEFT TO THE JURY TO DECIDE.

Bill 11 relates to the judge’s refusal to let a witness for defendant testify whether the witness for the State, who testified as stated in the bill just passed upon by us, was near enough at the time to hear the conversation, as he had sworn. The endorsement is that this witness for defendant had previously stated that he was about ten ■steps from the accused and his friend at the time of the asserted conversation, and that he had not heard it. ■ The trial judge adds: This witness having stated the distance and relative position of the two persons conversing, the jury was in possession of all facts needful to determine whether or not the State witness sought to be impeached was near enough to hear the cotíversation. The facts being before the jury, the trial judge properly left it to the jury to •determine whether or not the State witness could have heard the conversation.

THE REQUESTED INSTRUCTION WAS GIVEN IN THE GENERAL CHARGE TO THE JURY.

The last bill of exceptions was taken to an asserted refusal of the trial judge to charge the jury, as requested, as to threats and motive. The reason for the refusal was that he had already given the instruction requested in his general charge. The substance of the general charge on this point was incorporated in the bill. It sustains the judge’s statement that the requested instruction had already been given.

This completes the review of the objections before us on appeal, and we find no ground upon which the accused can be relieved.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,993.
    Succession of Fergus Gardere.
    A will provided for the payment of debts, and the residue of the property to go to legal heirs, who were made executors:. Held, that they were not legatees in the sense employed in Art. 1683, 0. 0., and were entitled to receive commission allowed by law.
    Where the deceased was in ordinary partnership, which wa* dissolved by his death, the final account of the executor ought to show the condition of the partnership as to its solvency, and the eventual interest, if any, of the succession in it. All property, of whatever kind and description, must be placed on the inventory.
    The final account of an administrator or executor should be a full and complete exhibit of all the affairs of the deceased, leaving nothing for inference, and there should be nothing omitted which might possibly provoke further litigation, such as the leaving off the inventory and final account, a claim which may be collected after the discharge of the executors by the heirs.
    PPEAL from the Fifteenth Judicial District Court for the Parish of East Baton Rouge. Buchner, J.

      Alvan E. Beed for Executors, Appellees.

      Thomas J. Kernan and Samuel O. Lay cock for Opponent, Appellant.
    Argued and submitted January 9, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

The deceased, Fergus Gardere, left a will, appointing Stephen Chalaron, and his grandson, Ernest Ooycault, executors, with seizin of all his property. The will provided that after the payment of debts, the property was to go to his legal heirs in equal parts. The heirs were his daughter, Marie Chalaron, and the children of his daughter, Helena Ooycault; the executor, Ernest Ooy-cault, is the son of this daughter.

During his lifetime the deceased sold one-half of his plantation to T. A. Womack, with whom, he entered into a planting partnership. All the property in the inventory was sold, and the executors filed their final account.

The Bank of Baton Rouge filed an opposition to the account. It was approved and homologated. The opponent has appealed. The gronnds of opposition are numerous, and the minutest detail has not escaped observation. Clerk’s and sheriff’s costs have been rigorously scrutinized, and items which would ordinarily be passed have been noticed and objected to. Old animals and vehicles and discarded furniture,which, it was thought, were not worth the costs of inventory and sale, have had a value affixed to them, and there is a demand that they be placed on the inventory and sold. Inappreciable as these things are they have a value, and under the Oode they must go on the inventory and be accounted for, even though their .disposition may occasion loss to the succession.

Attorney’s fees were objected to, but they have been fixed by agreement. It is claimed that the executor, Ooyca ult, is a legatee and not entitled to commissions. He is not, in the sense of Art. 1685 of the Oode, a legatee, but only designated by the testator as-the heir to whom the law would give his property, if he died intestate. He is entitled to commissions on all the property of which he had the seizin and on the inventory, making the reductions required by Art. 1683 of the Code. It is claimed that he is not entitled to a commission on the undivided half of the plantation, as the deceased had sold one-half to Womack and entered into a planting partnership with him. We understand the partnership to have been formed with reference to the cultivation of the place. The plantation was-held in indivisión, but the deceased’s half was not a partnership asset. Figuring on the inventory as his property, the executor is entitled to the commission.

It is urged the executor Chalaron was not present in the parish o f East Baton Rouge to give personal attention to the affairs of the succession. The succession attorney fully and satisfactorily shows-in his testimony that the executor was not nominally such, but that he took an energetic interest in the eourse of the administration, and was in correspondence with the attorney and held interviews in New Orleans with him, in relation to the business affairs of the succession. He is entitled to his commission.

There was a growing crop of cane on the plantation at the death of Gardere, which amounted to some one million five hundred thousand pounds of sugar, upon which there was a claim for bounty amounting to some eight thousand dollars. It is claimed by the opponent that this crop should be accounted for by the executors and the bounty claim inventoried. Womack, the partner, stated in his testimony that the partnership was insolvent; that the proceeds of the sale of the crop had been applied to the payment of partnership debts, except five hundred dollars which had been devoted to the payment of an old individual debt of Gardere. He states it as his belief that if the bounty claim were collected there would be enough to pay partnership debts in full, and there might be a small balance left. Gardere’s individual creditors, however small this balance, may be, have the undoubted right to demand that it be placed in his succession. There ought to have been some showing by the executors of the eventual interest in the partnership, if any; and if insolvent,' to show this fact.

In our opinion the claim for the bounty is a valuable asset, which we understand goes to the partnership liquidation, but the deceased’s eventual interest may amount to some value.

It is probably our duty to examine the costs bill and point o.ut wherein there has been an excessive charge. The bills seem to be correct in the main, but fearing that we might err, we prefer to let them be more carefully scrutinized, if possible, in the remanding of this case.

The inventory should contain in it all the property of the deceased,, of whatever kind or description, and the final account should be a-full, complete' and final exhibit of all the affairs of the deceased, leaving nothing for inference, however fair and honest the administration may have been, and there should be nothing omitted, which might possibly provoke future litigation, as the bounty item would1 do, if collected by the heirs after the close of the administration.

It is therefore' ordered, adjudged and decreed that the judgment' appealed from be annulled, avoided and reversed, audit is now ordered that the ease be remanded for the filing of an account according to-the views expressed herein, and to be proceeded with in all respects-according to law, the succession to pay costs.

Mr. Justice Breaux took no part in this decision.


text:
    No. 12,037.
    The State of Louisiana ex rel. Charles Louque vs. Fred. D. King, Judge Civil District Court, Parish of Orleans.
    Where an inferior court acts within thebounds of its jurisdiction, and. there are no • marked defects or irregularitie- in its proceedings, the Supreme Court, under its supervisory jurisdiction, will not annul the judgment rendered in the ease, though it may be contrary to the law and the evidence.
    y^PPLICATION for Writs of Certiorari and Prohibition.

      Louque & Pomes for Relator, Respondent Judge pro se.

      Charles Rosen for Joseph Fernandez, Original Plaintiff, Respondent.
    Submitted on briefs January 6, 1896.
    Opinion handed down January 20,1896.
    On Application por Writs op Certiorari and Prohibition.
   The opinion of the court was delivered by

McEnery, J.

The relator alleges that the respondent judge rendered a judgment against him for fifty-eight dollars and twenty-five cents, and that said judgment is illegal and unjust, and that he has no other remedy than an application for the exercise of the supervisory jurisdiction of this court.

The relator was sued on an injunction bond for one hundred dollars. Judgment was rendered against the relator and the principal in the bond for thirty-eight dollars. The relator appealed to the Civil District Court, parish of Orleans. The appellee prayed for an increase in the judgment. It was granted, and the relator was condemned in the sum of fifty-eight dollars and twenty-five cents.

The relator complains ■ that the judgment is illegal, because the damages claimed consisted of costs which had been satisfied by the sale of personal property of the principal on the bonds; that the attorney’s fees, claimed as damages, were not earned on the dissolution of the injunction, but on the trial on the merits; that the judgment against him is for fifty-eight dollars and twenty-five cents, and against the principal for thirty-three dollars.

The answer of the respondent judge is, that after hearing the evidence and argument of counsel, etc., he found that the actual damages sustained by plaintiff in the original suit by the wrongful injunction obtained in the same amounted to the sum of fifty-eight dollars and twenty-five cents. That the facts stated in relator’s petition are the facts conte d d for and believed by him to have been proved, but respondent did not think so.

The relator alone appealed to the Oivil District Court. The proceedings were regular, and there is nothing in the record which calls for the exercise of our supervisory jurisdiction.

The relator alleges that the amount involved is such that he can not submit to the judicial wrong inflicted upon him. We find no other principle involved than that so often announced by this court, that “where an infeiior court acts clearly within the bounds of its jurisdiction, and no vital defects or irregularities mar the proceedings in a case before it, the Supreme Court will not, under its supervisory jurisdiction, annul the judgment rendered in such case, though it may be contrary to the law and the evidence. State ex rel. Patton vs. Houston, 40 An. 393; State ex rel. Wood & Bro. vs. Judge, 38 An. 377-921; State ex rel. Broussard vs. Justice of the Peace, 42 An. 1190; State ex rel. Rocchi vs. Judge, 45 An. 532; State ex rel. Snider vs. Judge, 47 An. 1482; State ex rel. McCune vs. Judge, 47 An. 1512; State of Louisiana ex rel. Hogsett, Sr., vs. Justice of the Peace, 47 An. 1533; State ex rel. Liggins vs. Judge, 47 An. 1022.

The relief prayed for is denied, and the rule granted herein discharged.


text:
    No. 12,028.
    State of Louisiana vs. Jessie Scott.
    An information framed in the language of Article 852, Revised Statutes, charges an offence under the laws of the State. The offence of entering a dwelling with the intent to kill and the stabbing of a person therein, with intent to kill, may be prosecuted in one indictment.
    It is not necessary, under tt e Section 854 of the Revised Statutes, to charge that the person stabbed was lawfully in said house.
    The closingof the information contrary to the form of the statute” etc., applies to each count and it is not necessary to insert these words after the several counts.
    Pormal defects in an indictment, and duplicity alleged therein, are cured by verdict.
    District Judges are authorized to order special jury terms at which both civil and criminal cases can be tried.
    APPEAL from the Twentieth Judicial District Court for the Parish of St. James. Guión, J.

      M. J. Cunningham, Attorney General, and O. D. Billon, District Attorney, for Plaintiff, Appellee.

      Edward N. Pugh and H. L. Himel for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted under Sec. 864, Revised Statutes, which says: “ Whoever, with intent to kill * * * shall in the night time enter, without breaking, a dwelling house * * * on conviction shall be imprisoned at hard labor not exceeding five years, and fined not exceeding one thousand dollars.”

The defendant was convicted and sentenced to hard labor for five years and to pay a fine of one dollar and costs. The defendant appealed from the verdict and sentence. A motion in arrest of judgment was filed on the grounds, (1) that the information set forth no crime under the laws of the State; (2) that the information is fatally defective in attempting to charge defendant with two separate and distinct all. ged offences, having no connection or relation to each other; (3) that the' “ first count is’ fatally defective in failing to allege and set forth that the intent to kill, tho wilfully and with malice aforethought, and in failing to allege that said Lorenzo Todd was lawfully in said house;” (4) that the first count is also defective in not ending with the words “ contrary to the form of the statutes of the State of Louisiana in such cases made and provided.”

The information charges that the defendant feloniously in the night time did enter the dwelling house of Lorenzo Todd with the intent feloniously then and there to kill the said Lorenzo Todd, being at the time in said dwelling house, and the second count is that the said Jessie Scott then and there on the 8th day of March, 1895, with force and arms did wilfully, feloniously, and of his malice aforethought, stab one Lorenzo Scott, etc.

The information is in the language of the statute, and charges in the first count a crime “known to the laws of Louisiana,” It was not essential to charge that Lorenzo Todd was lawfully in the dwelling house, as the statute does not make his being there lawfully a part of the description of the offence, and it is nowhere mentioned in the statute. The objection, in quotation marks, to this part .of the indictment is indefinite, but we construe it to mean that, although the information charges that the stabbing was done wilfully and maliciously, it failed to state that the person stabbed was lawfully in the dwelling house.

The second count is closely and intimately connected with the first and grew out of the same transaction, and was the execution of the offence denounced by the statute with entering with intent to kill. The entire transaction was but one offence, and so construed by the trial judge in inflicting the penalty. The jury entered a verdict of guilty to each count, but this was responsive to the charge in the information of entering with intent to kill. State vs. Ely, 35 An. 895; State vs. Nicholls, 37 An. 779; State vs. Brown, 35 An. 1058.

It is not necessary to make a separate conclusion, in each ease, in a single count in an indictment. State vs. Russell, 33 An. 135.

The concluding words in the information necessarily referred to the several courts therein, and their repetition' after each count would be useless tautology. In this proceeding both offences could have been charged in the same count, as the second, as stated, was but a consummation of the intention to enter and kill. The two offences grew out of the same act, and are properly charged in the same indictment. State vs. Pierre, 38 An. 91; State vs. Hendricks, 38 An. 682.

The alleged defects of duplicity and the formal matter complained of, the omission to charge in the conclusion of each count, “contrary to,” etc., were cured by the verdict.

There was a motion filed for a new trial on the ground that the verdict was null and void for the reason that the trial was had at a civil term of ■ the District Court. There is no complaint as to the drawing and empaneling of the jury, but on the sole ground that there is no authority for a jury to be drawn to try a criminal case at a civil term of the District Court.

Article 117 of the Constitution says, “at other jury terms, the General Assembly shall provide for special juries when necessary for the trial of criminal cases.” Sec. 1 of Act No. 152 of 1894 provides that the district judges of the several districts may provide for any civil term in any parish, when in their discretion it may be required. Under the conviction that a jury should be drawn for the next trial term, the District Judge ordered the drawing of the same in accord - anee with law. The judge was by this act authorized to cause the jury to be drawn. It is true the act does not say that the juries so drawn shall be fore the special purpose of trying criminal cases, but it is not inconsistent with the article, as a jury is provided for the court which has jurisdiction to try criminal cases.

The court having jurisdiction, and the jury having been drawn strictly in accordance with the law, we do not see where the defendant has suffered any injury. He has been deprived of no right.

But the point presented has been disposed of in the cases of State vs. Claude, 35 An. 71, and State vs. Chandler, 36 An. 177, in both of which it was held that Article 117 of the Oonstitution and Act 77 of 1880 contain nothing inconsistent with previously existing laws authorizing district judges to call special jury terms to transact business, both civil and criminal, thereat. But the defence is improperly urged in a motion for a new trial, and is no ground for the same. State vs. Ben Dickerson, just decided.

Judgment affirmed.


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    11,976.
    Leonce M. Soniat vs. Thomas Supple et als.
    The proviso in Sec. 8 of Act 89 of 1894 is embraced within the meaning of the title to the act, intimately associated with it; is germane to the object and purposes of the act, and is valid and constitutional. The proviso was not repealed by Act 152 of 1894.
    It is within the power of the Legislature to authorize district judges to cause a jury to be drawn at any term of court or at any time during the term. Sec. 8 of Act 1889 in the proviso to said section authorizes the District Judge to cause a jury to be drawn to tr a civil case in which there is a prayer for jury during the term of court at which the praver is fixed and the jury ordered. But the jury must be drawn by the jury commissioners, as the jud^e has no authority to order the sheriff to select a jury. The order of the judge to summon the jury, directed to the sheriff, must be, after the jury has been drawn by the jury commission.
    Persons owning undivided interests in property may merge their interests so as to facilitate a division in kind. The judge, however, must decide whether this merger of interests will permit a division in kind without loss or great inconvenience to the other co-proprietors.
    Parties to a partition have the right to insist that the property shall be viewed in its existing physical condition, and if it presents insurmountable objections to a partition in kind, the consent of some of the owners that they will relinquish all advantages which might accrue from the peculiar condition of the property, or be willing to make restitution for parts falling to others for inconvenience to them, can not compel the other owners to consent to a division In kind.
    PPBAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      Hébert & Hébert for Plaintiff, Appellee.

      Sims & Gordon for Defendants, Appellants.
    Argued and submitted December 21, 1895.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to partition the Zaeharie plantation in the parish of Iberville.

We understand that the peremptory exception filed by defendants was abandoned in the court below. It is not referred to in defendants’ brief.

The case was tried by jury, and there was judgment in favor of plaintiff, ordering the property sold to effect the partition.

The contention was as to the mode of partition, whether in kind! or by licitation.

There was, on the part of the defendants, an application for trial by jury. It was granted, and at the same time the judge ordered! the sheriff to summon twenty-four persons, having the qualification of regular jurors, to iry the case. The defendant objected to the order, on the grounds that the court was without jurisdiction to oz’der the sheriff to draw tales jurors at a civil term of the court, and that the order was in direct violation of the rules of the court. Subsequently a motion was filed to rescind the order, for the reasons that the proviso m Sec. 8 of Act 89 oi 1894 refers to a term of the court which had been fixed by the order of the judge as a jury term and has no reference whatever to a term for which no jury had been previously ordered; that the proviso is unconstitutional, because its object and purpose are not germane to the objects and purposes of the Act 89 of 1894, and that the object of the proviso is not inserted in the title of said act; (2) the proviso was repealed by Act 152 of 1894; and the court was without jurisdiction to order the summoning of talesmen at a civil term to try the case.

Act 89 of 1894, in its title, is relative to juries, and to repeal Act 44 of the regular session of 1877. The proviso has a direct relation to the object expressed in the title, and is germane to it, as it expressly refers to the manner of summoning a jury in a special case excepted from the general provision of. the act. The title of the act covers the scope and meaning of the proviso.

There is nothing in Act 152 of 1894 which in any way conflicts with the proviso, as that act has reference to terms of court.

The proviso has reference to the term at which the prayer for jury is filed. It is somewhat confused, but its meaning is that the term of court at which the prayer for jury is filed and granted, and the jury ordered, is the term referred to, and at which it is intended the case shall be tried. There is no constitutional provision which makes it imperative that a civil case, triable by jury, shall be tried at a regular-jury term. It is only requisite that the judge will have the power and authority by legislative will to order the jury at the civil term of the court. It is within the power of the Legislature to authorize the judge to cause a jury to be drawn at any term of court, or at any time during the term. The power has been granted district judges in several acts to call special jury terms of court at which a jury be summoned, and the proviso to Sec. 8 of Act 89 of 1894 has given the distric judges the authority at a term for which no jury has been summoned, to cause the jury commissioners to select a jury during the term to try a civil cause in which a jury has been ordered to try the same.

The summoning of tales jurors is usually done after the exhaustion of the panel of regular jurors. For this contingency there is provision made in Sec. 6 of the Act 89 of 1894. But the act (Bee. 61) also provides for the selection of additional jurors for service,, either as regular jurors or as talesmen, by the jury commissioners, to be summoned without delay, or within the time the judge shall require. We construe the proviso to Sec. 8 to mean that the order to the sheriff to summon the jury shall only be given after the jurors have been selected by the jury commissioners. There is certainly no authority for the judge to summon tales jurors to try a civil case in any other manner than that pointed out in Sec. 6 of the act. The authority is not vested in him to do so in the proviso to said act. Therefore the tales jurors referred to in Sec. 8 of the act, in the provision to the same, must necessarily have reference to tales jurors to be selected by the jury commissioners.

The judge was in error in ordering the sheriff to summon the jury before it had been previously selected by the jury commissioners.

After the trial had commenced the defendants were permitted to file an amended answer showing an agreement between defendants to merge their interests so that they could receive in kind for their several individual interests, one-fourth of the property, thus dividing the plantation into four lots for allotment among the owners. Plaintiffs objected to the filing of the amended answers on the grounds that it came too late; that the plaintiff had never consented to such a partition; that the attorney representing the defendants could not represent their respective interests; but if he had such authority it must be special and in writing, and that the partition must be final and definitive. The issue involved was whether the plantation could be divided in kind. The amended answer did not alter, change, or modify this issue. Under the circumstances of this case we do not think the District Judge abused the discretion vested in him as to the filing of amended pleadings. There is no time specified in which an amended answer must be filed. The time at which it is presented, however, ought to influence the judge in its admission in the recor s, as in many instances such pleadings are filed for delay. In a case of this kind, in order to render substantial justice, we do not think there was error in his ruling.

In order to facilitate a partition in kind, there is no reason-why parties to the suit can not merge their interests and hold in indivis-ión the part allotted io them. As between the parties the partition in such a case would be definitive and not provisional, as there would be left nothing to be divided between all the parties to the act ■or suit. There were no minors interested, requiring the appointment of a special tutor to each interest of such minors, as against the interest of the tutor representing all the minors. In a case where they are all majors, who employ one attorney, there is no reason after the partition for any inequality on that account in the division, to serve as a basis for a suit of rescission. The plaintiff owned nine-twelfths; the defendants one-twelfth each. In order that a division in kind could be made, they were at liberty to merge their interests into one-fourth of the place, and ask that this be given them by lot. The judge, of course, is to decide whether or not, with this merger of interests, the property can be divided so as not to inflict injury and inconvenience on the other co-proprietors.

After this amended answer was filed, the defendants offered to file a supplemental petition, which was rejected by the court. A bill was reserved. The supplemental answer was an abandonment by defendants of interest in certain improvements on the plantation, which, it appears, were together in a space of some thirty acres. The answer recites: “That in order to eliminate entirely from this case the issue presented by plaintiff relative to the existence of certain improvements on the plantation, consisting of buildings, including more particularly the main dwelling house on said plantation, these respondents hereby abandon and relinquish all of their right, title and interest in and to said main dwelling house and other buildings on and attached to said plantation, in the petition in kind of said plantation; that should such division in kind in the proportion of four lots, the lot on which said dwelling house and other buildings are situated, be allotted to or drawn by plaintiff, these respondents hereby relinquish and abandon any and all claims which they otherwise may or might have urged for their proportion of the value of said building; that these respondents, in case of a division in kind and the allotment of tracts, and in case the lot or tract on which said main building is situated be allotted to and drawn by these respondents under the merger of their shares as set forth in their supplemental answer heretofore filed herein, they are ready and willing to take and receive said lot or tract and pay their proportion of the value of said buildings thereon, according to the valuation placed thereon according to law in the progress and cause of said partition. Respondents further show that in case the lot on which said main building is situated be allotted to or drawn by plaintiff, these respondents will make no claim against him in said partition for their proportion of the value of said main building or any other buildings thereon, and in case there be verdict and a decree for partition in kind in this case, these respondents consent hereby that all of the foregoing stipulations and admissions be entered as part of such decree ; that these respondents agree and consent that a decree be entered herein for a division of the land in the rear of the railroad line into four lots and the land between said railroad and the river into town lots, near said town, and the remaining portion of said tract into strips of large dimensions, as lands may be readily sold in small tracts.”

All these matters were to be made a part of the decree in case a verdict should have been entered for a partition in kind.

The defendants had the right undoubtedly to enter a remittitur, or relinquish any claim which would be to their advantage; but this can not be coupled with a condition that the verdict of the jury will be favorable to their side of the case. Notwithstanding the-relinquishment that defendants make, it may be that the lots with the buildings on them would be a burden to the owner, as they were placed thereon for the service of the plantation in its entirety. The plaintiff could not be forced into a division of the property in lots for future sales and speculative value, nor could he be required to enter a formal consent that certain parts of the property should be divided into town lots. The supplemental answer contains matters for a convention between the parties to the partition suit, and the defendants, by pleading and tendering them in an amended or supplemental answer, can not force them upon plaintiff’s acceptance.

Parties to a partition have the right to insist that the property shall be viewed in its physical aspects, and if it presents insurmountable objection to a partition in kind, the consent of some of the owners that they will relinquish all advantages which might accrue from the peculiar situation of the property, or be willing to make restitution for parts falling to others for inconveniences, can not compel the other owners to consent to a division in kind. Whether this property presents physical conditions. which prevent a division in kind we express no opinion. We have noticed the last two points presented by the record, in order to facilitate a speedy trial, and to avoid bringing the same issues here a second time.'

It is ordered that the verdict and judgment therein appealed from be annulled, avoided and reversed, and it is now ordered that this ease be remanded to be proceeded with according to law.


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    No. 11,985.
    Aaron Aronstein et als. vs. John F. Irvine et als.
    In a suit by minors for tbe recovery of property Illegally sold, an antecedent tender of tbe purchase price is not required. Tbe defendant -will be allowed to set up his claim inreeonvention.

      Where the tutor purchases property at a sale of succession property, provoked by him, in which the minors may have an eventual interest, the final account showing the insolvency of the succession will not estop the minors from bringing suit for the revendication of the property, on the ground that the succession being insolvent, they have no interest in the same. The minors being placed on the account by the tutor for the homestead benefit, will not operate as a confession on their part as to absolute insolvency of the succession.
    A PPEAL from the Thirteenth Judicial District Court for the Par- ' V* ish of West Feliciana. Brame, J.

      W. F. Kernan, Jos. L. Gotean and S. McC. Lawrason for Plaintiffs, Appellants.

      W. W. Leake for Defendants, Appellees.
    Argued and submitted January 7, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

This case is here on an exception, which was maintained by the lower court, and plaintiffs appealed.

Louisa Aronstein died in 1878. The surviving husband, tutor of the minor children of the marriage, administered her succession. John F. Irvine, defendant, was under-tutor.

The natural tutor, as administrator, caused the property in the succession to be sold to pay debts. The only debt alleged to be due was one to L. Bloom for one thousand two hundred and fifty dollars, owned by the Metropolitan Bank, with eight per cent, interest from January, 1872. The principal immovable property was inventoried at one thousand dollars; the entire succession at one thousand eight hundred and thirty dollars. The note to L. Bloom, the final account shows, was subject to a credit of six hundred dollars, imputed to interest. The personal property brought seven hundred and fifty dollars. The immovable property was sold on twelve months’ credit, and bought by the tutor for the sum of five hundred and one dollars. Subsequent to this purchase by-the tutor he mortgaged the property to the defendant, Irvine, under-tutor, who foreclosed the mortgage and became the purchaser. The plaintiffs, heirs of Mrs. Aronstein, for their respective interests, instituted this suit for the annulment of the adjudication to their tutor and the sale to Irvine, who is pur--sued as a possessor, without title and in bad faith. Fruits and revenues are also claimed. The tutor filed a final account, showing’certain payments of succession debts and the setting aside for the minors the homestead allowance of one thousand dollars. This account was homologated.

The defendant, J. F. Irvine, excepted on the following grounds, viz.: The plaintiffs have not paid back nor tendered the purchase price of the Neville place, sold at succession sale to pay debts; nor of the two acres and improvements sold at the tax sale, which was used to extinguish their ancestor’s obligations.

That judicial or tax sales can not be annulled or disturbed unless the heirs previously return or offer to return the price of adjudication, which has not been done by plaintiffs.

That plaintiffs have not alleged any injury to them by the sales. The succession of their mother being insolvent, plaintiffs have no interest and had not been injured by the sales of which they complain.

That having claimed and received the widow’s homestead, one thousand dollars, plaintiffs necessarily renounce the succession of their mother, and can not recover the property without paying back the amount they received under the homestead.

That the adjudicators of said judicial and tax sales are necessary parties.

It is well settled that minors whose property has been illegally sold can not recover it without restoring all advantages they have received.

“He who seeks equity, must do equity.” Brown vs. Bouny et al., 30 An. 174; Beauregard vs. Leveau, 30 An. 302; Sharkey vs. Bankston, 30 An. 891.

But in a case like the instant one there is no requirement of antecedent legal tender, as there is no principle of equity requiring plaintiffs to tender to defendants before asserting their absolute title to property belonging to them and held by defendant as a mere possessor without title. All that equity could possibly require would be to permit him to set up his claim in reconvention, which would not be denied.” Heirs of Wood vs. Nicholls, 33 An. 749; Heirs of Self vs. Taylor, 33 An. 769; Heirs of Burney vs. Ludeling, 41 An. 627.

It is a correct principle to say that heirs have no interest in an insolvent succession, and have no right to claim restitution of property which has been properly applied to the debts of the succession. This rule applies to cases where the property has been sold under proper proceedings, and the purchaser holds prima facie title. Green vs. Baptist Church, 27 An. 563; Succession of Lehmann, 41 An. 987.

It can haye no application “where the nullity of defendants’ title is absolute, resulting from the active violation of a prohibitory law made to regulate defendants’ conduct in a fiduciary capacity.’ Heirs of Wood vs. Nicholls, cited above.

Minors have the undoubted right to a legal,, just and proper administration of a succession in which they are interested, and a legal and proper disposition of the property in the succession.

To hold that where property of the minors has been purchased by the tutor, on an order provoked by him, that the minors are estopped from questioning the same because of the insolvency of the succession, as shown by the final account, would be inducement to dishonest tutors to, wreck and spoliate the property in which the minors might have an eventual interest. The fact of his purchasing the minors’ property would raise a well grounded suspicion that the order to sell was procured for his special benefit, and as a consequence his interest would be to ward off bidders, to depreciate the valué of the property, and finally to present in his final account an insolvent succession, in order to protect his purchase. From the date of the adjudication of the property to the tutor his acts in relation theretq must be viewed with suspicion. His final account, in which figures the price paid for the property, can not be final and conclusive, and there is, with this badge of fraud resting against it, no reason to regard it as a final settlement with the minors, showing a complete, fair and just exhibit of his dealings with the succession in which they are interested.

The placing of the minors on the account as creditors for the homestead amount does not commit them into an absolute confession as to the insolvency of the succession. It was the tutor’s admission and not their admission. They are presumed to know nothing of the condition of the succession during their minority. It has been held that major heirs receiving the proceeds of the sale of the effects in their father’s succession, on the parcition of the same, are not estopped from revendicating-the property when they are kept in ignorance of facts connected therewith. Heirs of Self vs. Taylor, 33 An. 769.

There is nothing in the record relating to the two-acre tract that would justiiy any comment on the sale of the same.

It was stated in argument that the J. Aronstein who purchased the property at the provoked sale was not the tutor. There is nothing in the record to show this fact, and if such be the case it can be shown on the trial on the merits.

It is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that this case be reinstated on the docket of the lower court and proceeded with according to law.