author: Blanchard, J.

text:
    No. 12,665.
    Estate of Mrs. E. A. Littell.
    A physician, a relative of an aged and infirm lady, rendered her professional services extending through several years. He made no charge against her while living, but was told by her she would compensate him. Shortly before her death she gave into his hands five thousand dollars in cash. He says this was a donation to his wife; but it appears to have been received by him, and to have passed under his administration and control. Under the circumstances developed by the evidence, Held: This was the compensation she referred to and the remuneration he depended on, and he can not recover on a large claim for professional services presented or asserted for the first time after her death.
    (On another matter in the same succession). While the fact of knowledge of an endorsee that a note he discounts is an accommodation note is no defence against it if taken for value, Iona fide, before maturity, where such a note is given for a special object, which is abandoned, and afterward, in fraud of the maker, it is negotiated, and the endorsee knows or has reason to believe such fraud, his participation in its commission bars his recovery.
    This applies with all the more force to instruments non-negotiable in character, for, not being negotiable, greater caution is required of the purchaser.
    APPEAL from tbe Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      Thomas H. Lewis for Succession, Appellant.

      Henry L. Garland, Jr., and E. B. Dubuisson for Executors, Appellants.

      Henry L. Garland, Jr., and E. B. Dubuisson for Dr. R. M. Littell, Opponent, Appellant.

      Kenneth Baillio for Vincent Boagni, Opponent and Appellant.

      Kenneth Baillio for Edward M. Boagni, Jos. E. Boagni, Mrs. Eleanor Comeau and Mrs. M. C. Moseley in the matter of the opposition of Robert M. Littell, Appellees.

      Henry L. Garland and E. D. Kstillette for Bessie Millard, and Nellie Haw, wife of Robert Smith, Legatees, Appellees.
    Submitted on briefs December 14, 1897.
    Opinion handed down January 24, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

Mrs. Eleanor A. Littell died in 1895, well advanced in years and leaving a considerable estate. There were no forced heirs. She left a last will and testament, olographic in form, which was duly admitted to probate. Dr. T. T. Tarlton and Dr. R. M. Littell were named as executors and qualified as such. Her property was bequeathed in the main to her nieces and their children. There were some other legacies.

The executors filed what was called a partial account and classification of debts and projet of distribution to legatees and heirs.

Oppositions were filed by various parties, and from judgments thereon this appeal is prosecuted.

Opposition ok Dr. R. M. Littell.

This opposition is founded upon a claim for professional services rendered to the deceased during the last three years of her life. The amount of the claim is three thousand four hundred and eighty dollars.

For several years prior to her death the deceased was suffering from a chronic ailment. She needed the almost constant care of a physician. Near her lived Dr. T. T. Tarlton. Some twelve miles distant lived Dr. R. M. Littell, the opponent. Both were practising physicians and brothers-in-law. Each had married a niece of the deceased, and opponent was also a relative by blood. The families of both were on terms of the closest intimacy with the deceased. Indeed, they were looked upon by her as members of her family, and they so regarded themselves. She named the two physicians as her joint executors, and the members of their families were the chief beneficiaries of her bounty.

During her long period of illness and suffering it was natural that she should rely upon these two physicians, her nephews by marriage and members of her family, for professional attention. Both attended her, rendering about the same degree of care and service. They came at her request — were sent for. Oftentimes they came without being set for. Their wives were there, too, as was to be expected, nursing and ministering to their old and infirm relative. Sometimes the families of one or the other of these physicians would remain for weeks at a times in the house of the deceased.

Neither of the physicians at any time during the lifetime of the deceased made any charge for professional services rendered her, though these services extended through the long period of three years.

It is shown the deceased was particular and exact in the matter of paying her debts, had abundant means to meet her obligations and did not want bills to remain outstanding against her.

After her death Dr. Littell came forward with the claim herein declared on. Dr. Tarlton makes no claim.

It is not disputed that Dr. Littell’s services were valuable, his visits frequent and often protracted. He was not Seldom called at night. Once he accompanied her to New Orleans to consult a physician there, and it is claimed that his general practice suffered in consequence of the time taken up by his attendance upon the deceased.

It is not pretended there was any agreement between the opponent and the deceased in reference to compensation to be paid him. The suit is upon a quantum meruit. He charges for eighty-seven days’ attendance at forty dollars per day, including mileage.

The claim is resisted on the ground that its presentation against the succession is an afterthought; that it was not considered by opponent a debt due him prior to the death of Mrs. Millard; that he never intended to make a specific charge against her; that she never understood he would do so; that the service was rendered as one of her family; that he and his family were beneficiaries of her bounty, and that he had relied upon her generosity for recompense and had been fully recompensed.

The testimony establishes to our satisfaction this contention of the defence.

We are convinced that the opponent did not render his professional services under contract, either express or implied, and depended entirely on the beneficence of his patient and relative for remuneration. Asked on cross-examination whether or not he had ever notified the deceased or intimated to her that he intended to charge for his services, he replied “no,” and added that she had told him she would compensate him for what he would do for her. She did not state in what manner she proposed to compensate him, whether in her will or otherwise, whether to him directly or to members of his family, and he seems to have been perfectly satisfied to leave the compensation, and the manner of it, he was to receive to her.

That she did compensate him is shown by the evidence. Shortly before her death she made a donation of five thousand dollars in money to him or to his wife. The amount was either handed directly to opponent himself, or collected by him. He says this was a donation to his wife. Whether to him or her, it was a manual gift delivered into his hands and a remunerative donation. C. C. 1523, 1525, 1539.

He and his family received other benefactions from her. She paid part of the tuition of his children; his family lived for a while at her house, she became security for a large sum for him, signing the notes with him; and she had previously given to his wife two thousand dollars with which to buy a house and lot.

The donations to opponent’s wife, became, under our law, paraphernal in character, it is true, but the husband in this case has the administration and benefit of the same, and, besides, we are satisfied that the five thousand dollars given twenty days before Mrs. Millard’s death was the kind of compensation she had reference to when she told him she would compensate him, and that he at that time expected.

Under the circumstances developed by the evidence in this ease, unlike those of Danenhauer vs. Succession of Brown, 48 An. 341, the Succession of McNamara, 48 An. 46, and other eases cited in behalf of opponent, we do not think he is entitled to recover.

The ease is controlled by the principle announced in Jacob vs. Ursuline Nuns, 2 M. 269, and Tilghman vs. Lewis, 8 La. 108. See also Keever on Quasi Oontracts, p. 315 et seq.

Opposition oe Dr. Vincent Boagni.

This opponent claims to be a creditor in the sum of two thousand dollars and interest, as the holder of two notes executed in solido by R. M. Littell and the deceased, which he alleges he acquired in good faith before maturity for a valuable consideration.

The executors declined to recognize the claim for the reason that so far as the deceased was concerned she had signed the notes merely as security for Dr. Littell; that opponent was well aware of this when he accepted it; that at the time he acquired the notes he had received along with them as collateral security certain assignments and transfers of the salary to become due to Dr. Littell as coroner and parish physician of the parish of St. Landry for the years 1894 and 1895; that he knew Dr. Littell had executed these assignment8 of his salary for the purpose of securing payment of the notes; that opponent collected the salary transfers in full, amounting to two thousand one hundred dollars, and instead of applying the proceeds to the extinguishment of the notes, he had diverted the same by and through the connivance of Jos. Bloch, who was the party through whom the negotiation was made, to the satisfaction of a debt due him by Bloch.

The trial judge believed the evidence established this defence and rejected the claim. He did not err.

There is a direct conflict between the testimony of Bloch and that of opponent. Bloch, while candidly admitting his fault and giving as a reason for his subsequent consent to opponent’s proposition to divert the proceeds of the salary transfers to claims held by oppo - nent against him that he was hard pressed financially, narrates the facts and circumstances under which he negotiated the two n )tes to opponent for Littell, and states that he transferred the salary assignments as collateral security, attaching the same to the notes. He testifies he informed opponent that Dr. Littell had executed the assignments for that purpose, though they had been made payable to Jos. Bloch or bearer; that the notes and the salary assignments bore the same date, and were received by him from Littell at the same time; and that he affected the negotiation with opponent as one transaction, placing the notes and salary transfers in his hands contemporaneously, and taking opponent’s receipt for the salary transfers, which recited that he held the same as collateral for the notes. He further testifies that long subsequently, at opponent’s suggestion, he consented to the diversion of the salary assignments, as above set forth, and surrendered to opponent the receipts he had previously given for the same; that before he did this he endeavored by direction of opponent to secure the consent of Dr. Littell and Mrs. Millard to the diversion; and that failing in this, heandopponent agreed on and affected the diversion notwithstanding. It is shown that the deceased, whose estate is sought to be made liable, knew nothing whatever of of these transactions beyond the signing of the notes at Dr. Littell’s request. She was never asked to consent to the diversion, though Littell was, and declined. Littell owed Bloch a sum of money, and being pressed by the latter for it, executed the two notes, procured the signature of his relative, Mrs. Millard, (formerly Mrs. Littell) thereto, wrote out the salary assignments, handed the notes and assignments to Bloch, told him to negotiate the notes, with the salary transfers as collateral, pay himself what he (Littell) owed him, and apply the remainder to the taking up of a debt Littell owed the bank.

This is the way Bloch happened to be in possession of the notes and collaterals, and accounts for the interest he had in effecting the negotiation with opponent.

It is shown, besides, that Bloch owed opponent at the time, and that he left in his hands, out of the proceeds of the negotiation, a sum equal to the amount due him (Bloch) by Littell.

Opponent’s version is that Bloch brought the notes to him to negotiate; that to fortify them he offered the Littell transfers of salary; that he took the notes and transfers and gave his receipt for the latter; that he bought the two notes outright and has kept them since as his property; and that he considered the salary transfers as collateral to secure the notes. Later on, he says, Bloch came to him and with the view of protecting some friends in New Orleans offered to return opponent the receipts the latter had given for the collaterals, stating that upon the giving up of the receipts there would be “ no evidence that this paper (meaning the salary transfers) does not belong to you outright,” that then you will be the owner of the Littell notes and the owner of the collaterals.”

The “ friends in New Orleans ” Bloch desired to protect were the Schwartz Machinery Supply Oompany. This concern had, it seems, accepted a draft for him which had gone to protest and passed into the hands of opponent, who had directed his attorneys in New Orleans to institute suit on the same. The Supply Oompany appealed to Bloch to protect them by preventing suit. Hence, his second visit to opponent.

The latter states that Bloch’s proposition “suited him very well ” and he accepted it.

In other words, he and Bloch detached the salary transfers from their destination and designation as collaterals to the Littell notes and made them over to opponent in payment by novation of another debt due him by the Supply Company and Bloch.

Opponent states further 'that Bloch was apparently and to his knowledge the absolute owner of the notes and transfers.”

How he knew him to be “the absolute owner” beyond the presumption which sprang from his possession of the notes and the transfers (the latter being made payable to Bloch or bearer), he does not explain.

He insists he had at that time no knowledge that Bloch was not the owner, that he had acquired all the paper in good faith, that he was not aware the salary transfers were intended solely to secure payment of the notes, or that the notes were, as to Mrs. Mallard, mere accommodation paper.

Opponent is an interested witness testifying in his own behalf. Bloch is without interest in the suit, and while he appears in a bad light with regard to his participation in the scheme to divert the col-laterals, equally so does the opponent. But if we should give to the testimony of the one as much credence as to that of the other, there are facts and circumstances appearing which turn strongly the preponderance of evidence in favor of that view of the case which frees the estate from liability.

If opponent did not know or have reason to believe Bloch was negotiating the notes for Littell and was not the owner of them, and the salary transfers himself, why was it he did not retain a larger part or even all of the proceeds in payment of what Bloch owed him? The latter was then largely indebted to him. Yet he retained only eight hundred dollars of the proceeds of the negotiation on the debt, handing Bloch the remainder, one thousand dollars. No explanation of this was attempted.

The opponent, who was the brother-in-law of the deceased, wel^ knew she was possessed of large means, and hence, no collaterals were necessary to secure her notes. But with Dr. Littell, whose circumstances were not so good, it was different. The notes being signed first by him and then by the deceased, and being dated the same day as were Littell’s transfers of salary, and the whole turned over to opponent at one and the same time, must be held as conveying notice to opponent, or at least putting him on his inquiry, that the loan was for Littell’s account, and his transfers of salary intended to protect them and relieve his relative who had become his security. A significant admission, bearing on this, was made by opponent. Having declared he considered Mrs. Millard’s notes good paper, he said: “Yeti thought that as they came due Dr. Littell could not pay them, and therefore I would have to ask Mrs. Millard, and my relations with her were such, and on account of her health, I did not wish to have to make a demand upon her.” We agree with the trial judge that this conveys the idea that opponent believed Dr. Littell would not be able to pay his notes when they matured, and he wanted and took Che salary transfer from LiUell to avoid demanding payment of his debt from his surety, Mrs. Millard.

Again, opponent gives his case away when he testifies that Bloch told him at the time the agreement was made to take the collaterals in satisfaction of the Supply Company’s acceptance of Bloch’s draft and surrendered the receipts for the collaterals, “thereis no evidence that this paper does not belong to you outright.” This declaration was sufficient to put any reasonable man on his guard, or, at least, raise a strong suspicion in his mind that Bloch was without right to so divert the collaterals.

Other circumstances might be mentioned, but these suffice.

Dr. Boagni must be held as having had, at the least, reason to believe Bloch was not the owner of the salary assignments, and that he held the same only to secure the notes of Dr. Littell and Mrs. Millard. He can not, therefore, be considered a bone fide purchaser. Shaw vs. R. R. Co., 101 U. S. 557.

There was more than a mere negligence on his part in not making inquiry as to the nature of Bloch’s tenure of the transfers; there is more than a mere reason for suspicion that he knew such inquiry would develop facts it did not suit him to have developed. There is reason to believe he knew Bloch had no right to make over to him the ownership of the transfers. If the circumstances were sufficient to raise a reasonable belief even, on his part, of this, it falls very little, if any, short of knowledge and equally puts a party on his guard. 101 U. S. 566.

He preferred to make no further inquiry and simply took his chances.

It is no defence against a note that it was known by the endorsee or transferee to be an accommodation note, if he takes it for value, bona fide, before maturity. But when such a note is given for a special object which is abandoned and afterward, in fraud of the maker, it is negotiated and the endorsee knows, or has reason to believe, such fraud, his participation in its commission bars his recovery. Smith vs. Van Loan, 16 Wend. 662; 7 An. 227.

This applies with all the more force to the transfers of salary made by Dr. Littell, which can not be viewed as negotiable instruments. Not being such, greater caution was required of the purchaser. In this regard the case comes within the principles laid down by Norton on Bills and Notes, pp. 301 and 302.

As to Legacies oe Bessie Millard, Mary E. Boagni, Nellie Haw, S. V. Dooley, John B. Barber and Rosa Blackstone.

The four first mentioned were named in the will as legatees to receive five thousand dollars each, and the two last mentioned as legatees to receive five hundred dollars each. It was directed in the will that all of these legacies be paid out of a certain fund loaned on interest for the deceased by S. V. Dooley, subject to collection by him.

The evidence discloses that at the death of the testatrix there was of the particular fund bequeathed to the legatees mentioned in the hands of Dooley the sum of seven thousand four hundred and forty-eight dollars and eighty-five cents, and that of this amount the executors had collected five thousand eight hundred and forty-nine dollars and twenty cents, which was in bank to their credit.

Claiming that the amounts bequeathed to them are legacies under a particular title, the persons named, or certain of them, demand the immediate delivery of the sums given them out of the funds that were in Dooley’s hands, or their proportionate share of the same.

The executors do not deny that the parties named are legatees under a particular title, and they interposed no objection to a judgment ordering their payment, but contended it should be an order to pay in due course of administration and not an order to pay at once.

They appeal from a judgment decreeing immediate payment.

Prom the brief filed on their behalf we make the following excerpt: “If this court should affirm the judgment of the lower court, rejecting the claim of Vincent Boagni and R. M. Littell, then there will be funds sufficient in Che hands of the executors to pay the amounts allowed to complaining legatees, but the executors should not take upon themselves the risk which they should incur by a reversal on appeal of that judgment.”

Prom this it appears that the executors have no reason to oppose the order for immediate payment of the legacies under consideration, at least as far as the particular fund in their hands will go, if, by the judgment of this court affirming that of the court below, the large claims of R. M. Littell and Vincent Boagni are not sustained as debts due by the succession.

The judgment of this court on the oppositions of Littell and Boagni removes the apprehensions of the executors and those claims are not recognized as debts against the estate.

We find no error in the judgment of the lower court as far as appealed from, and the same is affirmed.

Mb. Justice Miller — I concur in the decree.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,683.
    State of Louisiana vs. Joseph T. Timberlake.
    Where it appears that there is no reasonable certainty or probability of procuring the attendance of an absent, witness at the next term of the court, the denial of a motion for continuance will not be disturbed.
    Where an absent witness, subpoenaed for defence, had testified on preliminary examination to a certain state of facts and could not, if present at the trial, have testified to the averments of fact set up in the motion for continuance without impeaching his own previous testimony, it is proper to conclude that were the witness present his evidence would be substantially the same as that on the preliminary examination, and as this was strongly against the accused, the latter was not prejudiced by his absence.
    The State was entitled to oifer the testimony of the absent witness, taken at the preliminary examination, on proof that he had left the parish and that his whereabouts and residence were unknown.
    To justify relief to the accused, isolated passages of the trial judge’s charge to the jury, objected to, must amount to a positive misstatement of the law.
    A PPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      Robert P. Hunter for Defendant, Appellant.
    Argued and submitted January 15, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for the murder of M. W. Baillio, a constable, convicted and the death sentence passed upon him. He appeals, and his case is presented in five bills of exception taken to the rulings of the court on the trial below.

I.

On the day the prisoner was arraigned and pleaded to the indictment a motion was filed on his behalf for a change of venue, which came up for trial four days later and was overruled. Following the denial of the motion for change of venue, and-on the same day, the case was fixed for trial one week later. Immediately thereupon the defendant filed an application, sworn to, for a subpoena for one J. W. Beaver, alleging him to be an important and material witness in his behalf, who had been present when the killing occurred, and that he was informed and believed him to be in the parish of Ouachita and in service on the United States snagboat Wagner, lying at or near the town of Columbia on the Ouachita river in Louisiana.

The application then proceeded to state at length what he expected to prove by the witness, the gist of which was that he (the accused) had acted in self-defence in killing the deceased, who had rushed upon him, grabbed him and he was holding him with his left hand while with the other he was in the act of drawing his pistol, when affiant fired the shot that produced death.

The court granted this application and the subpoena issued for Beaver the same day, November 8, 1897. It was received by the sheriff of Ouachita parish the following day. On the 13th of November — four days later — he made return that he had been unable to serve the subpoena, because “ failing to find the within named witness, Beaver, in the parish of Ouachita after diligent search, and from the best information I could obtain the present domicile of said witness is unknown.”

When the case was called for trial on November 15, the accused objected to going to trial because of Beaver’s absence, and filed a motion for continuance. This motion, besides the usual averments of materiality of testimony, due diligence, no other witness by which the facts can be proven, etc., set forth that the return of the sheriff of Ouachita parish, on the subpoena, did not show that inquiry had been made for the witness at the place which was designated; that because of the early day at which the case had been assigned for trial, time enough had not been given to enable the sheriff to make a sufficient search for him; that affiant, being confined in jail, had no opportunity to search for him; that he was absent without his knowledge or connivance; and that he expected to procure his attendance at the next term of court, etc. Then followed, substantially, the same statement of what he expected to prove by the witness as that made in the previous application for subpoena.

The motion for continuance was overruled on the ground that the whereabouts of the witness was unknown and the return showed he could not be found; and the trial judge further stated that his evidence, taken on the preliminary examination, was before the court, and disclosed that even if the witness were present he could not swear to the facts alleged in the motion for continuance, having already sworn to the contrary. He annexed the evidence taken on the preliminary examination as part of his reasons for refusing the motion to continue, and added that he believed the motion was made purely for delay.

The denial of the motion forms the subject of defendant’s first bill of exception.

It appears that the witness, Beaver, was a transient person, not domiciliated in the parish where the crime was committed.

In the prisoner’s application for the subpoena there is no statement or suggestion as to his place of residence, or that his residence is known. The application merely located him, on information and belief, in the parish of Ouachita.

The return of the sheriff of that parish shows that he was unable to serve the subpoena because, after diligent search, he had failed to find him within the parish; also that he was not a resident of the parish and that his domicile was unknown. Under the circumstances, there was no reasonable certainty, or even probability, that if the case had been continued the attendance of this witness could have been procured at the next term of the court. Such reasonable certainty or probability was necessary. State vs. Duffy, 39 La. An. 420; State vs. Morgan, 39 La. An. 214.

Besides, a perusal of the testimony of Beaver taken on the preliminary examination, both direct and under cross-examination by the accused, leaves no doubt on the mind that, had he been present at the trial, he could not have testified to the state of facts set up in the motion for continuance without impeaching his own testimony given at the preliminary examination. Had he testified to the averments of the motion for continuance, he would have stood self convicted of perjury committed at the preliminary examination. We must conclude, therefore, that had this witness been present at the trial, his evidence would have been, substantially, the same as that on the preliminary examination, and as this was strongly against the prisoner, he was not prejudiced by the absence of the witness at the time of trial.

II.

The testimony of the witness Beaver, taken on the preliminary examination, having been offered by the prosecution in connection with the testimony of other witnesses for the State, the defence objected on the ground that no sufficient basis had been laid for its introduction; that it was not shown the witness was dead, or had left the State permanently, or could not be found, or was sick, etc. Also that the testimony had not been, when taken down, read over to the witness for correction, and that it was not signed by him. The objections were overruled and the deposition permitted to be read to the jury. To this ruling the second bill of exceptions was taken.

The judge who presided at the preliminary examination, and before whom Beaver’s testimony was then taken, was the same judge before whom the case was subsequently tried.

Before offering the deposition, the State proved by the deputy clerk, who officiated at the preliminary examination and who took down the testimony of Beaver, that the witness had first been duly sworn, that the accused was present, that he cross-examined the witness, and that the whole deposition was fully and accurately taken down. This was sufficient as to its genuineness and official character. It is not required that the witness should sign it. R. S. 1010; State vs. Allen, 37 An. 685.

On this showing the testimony was admissible on proof that the witness was absent and could not be found. State vs. Harvey, 28 La. An. 105; State vs. Douglas, 34 La. An. 523.

This proof was furnished by the application made a week before by the accused for a subpcena to issue to the witness in the parish of Ouachita, by the sheriff’s return on the subpoena, that he could not be found in that parish and that his domicile was unknown, and by the application of the accused for the continuance of the case on the ground of the absence of this witness.

On the authority of State vs. Granville, 34 La. An. 1088; State vs. Jordan, Id. 1219; State vs. Coudier, 36 La. An. 291, and State vs. Allen, 37 La. An. 685, the prosecution would have been entitled to introduce the deposition even if the defendant had not sought Beaver as a witness, on proof that he had left the parish and that his whereabouts and residence were unknown.

Ill and IV.

The third and fourth bills of exception present objections to the charge of the judge relating to the law of manslaughter. In overruling the objections, and as part of his reasons for so doing, the judge annexes to the bills his entire charge to the jury, which was in writing.

The contention of the defence is, that in the portions of the charge excepted to, the court below holds the prisoner to the standard of “ a reasonable man.”

After stating that a high degree of sudden, resentful feeling will not alone palliate an act of homicide and reduce the crime from murder to manslaughter, the language of the court was: “It is essential that the excited and angry condition of the party committing the act, entitling him to a milder consideration of the law, should be superinduced by some insult, provocation or injury which would instantly produce in the minds of ordinary men situated as the prisoner was, the highest degree of exasperation.” Then with reference to the time sufficient for passion to subside and reason to resume its sway, it was said: ‘ ‘ The law assigns no limits within which cooling time may be said to take place. Every case must depend upon its circumstances, but a time within which an ordinary man in like circumstances would have cooled may be said to be a reasonable time.”

Considering the charge as to manslaughter as a whole, it must be held a correct exposition of the law. The selection of passages here and there for criticism and animadversion is not favored, and a verdict will not be disturbed on a merely inaccurate or incomplete instruction, as embodied in the sentences excepted to, when, from the entire charge on that branch of the law, a correct view and explanation of the subject is given.

To justify relief, the isolated passages brought to our attention must amount to a positive misstatement of the law. State vs. Ardoin, 49 An. 1145; State vs. Ferguson, 37 An. 51; State vs. Porter, 35 An. 1159.

It seems that counsel for the accused, insisting that the charge as to manslaughter was too restricted, asked a special charge in reference thereto and banded the judge Wharton’s Criminal Law, requesting him to read Sec. 480 thereof to the jury, as embodying what he wished charged them conceruing the law of manslaughter. The judge complied with this request and read the entire section to the jury, charging them that it was the law.

After this it does not lie in the mouth of the accused to complain that the charge as given was too narrow and restricted.

From that portion of the charge relating to self-defence is singled out this expression: “ The law requires mastery over our fears as

well as control over our passions.” This is objected to on the ground that if the law requires “ control over our passions,” it virtually sets aside the doctrine of manslaughter.

The expression used is taken from Desty’s Amer. Crim. Law, Sec 128, pp. 383, 384.

The judge was instructing the jury as to the apprehension of danger on part of the accused, and proceeded to explain, after using the language quoted, that imaginary fears, without anything upon which to found them, can not serve as an excuse for taking human life.

His charge as to this is entirely unobjectionable, and so far as the expression control over our passions ” is concerned, the law of manslaughter, the killing of another in the heat of passion, was sufficiently and accurately expounded to the jury in another part of the charge.

Y.

The fifth bill was taken to the refusal of the Court a qua to grant a new trial asked for on two grounds — first, that the verdict was contrary to the law and evidence, and, second, that the jury was overawed by the large crowds in attendance at the trial, all of whom were opposed to the prisoner and some of whom applauded the District Attorney when he concluded the argument for the State, thereby influencing the jury to the prejudice of the accused.

Testimony was taken on this motion and is found in the record. The question presented is one of fact. The trial judge, in his reasons for overruling the application for a new trial, declares that the accused had obtained a fair trial by an honest jury, influenced alone by a desire to do their duty; that the nearest juror lived about fifteen miles from the county seat (Alexandria) ; and that he was satisfied none of the jury were influenced by any prejudice which may have existed in Alexandria. The evidence taken on the motion does not satisfy us the judge erred in overruling it. Great reliance is placed by the law upon his discretion in such matters.

The manifestation of approval at the close of the argument for the prosecution was inconsiderable,’and was quickly and sternly rebuked and suppressed by the judge, who then turned to the jury and directed them to disregard any and all marks of approval or disapproval, and to determine the case solely from the law and evidence.

The sentence and judgement appealed from stand affirmed.


text:
    No. 12,718.
    A. Baldwin & Co. vs. Joseph Cappel et als.
    The object of this action is to remove a cloud, a fictitious encumbrance, a simulated mortgage, appearing on the public records against certain real property-standing in the name of an insolvent.
    It is not an action directed against either the person or property of the insolvent, but a proceeding directed against the apparent encumbrance.
    One or more of the parties defendant being strangers to the insolvent proceedings and without interest therein, plaintiffs can not be forced to litigate the questions arising with him, or them, in the concurso or insolvent proceedings, but may bring an independent action and make all persons in interest parties thereto, including the syndic of the insolveut estate.
    A PPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Cullom, J.

      Couvillon & Son for Plaintiffs, Appellants.»

      A. J. Lafargue and Cappel & Cappel for Defendants, Appellees.
    Argued and submitted February 11, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court wes delivered by

Blanchard, J.

Plaintiffs, who are judgment creditors of Joseph Cappel, caused execution to issue and seized a tract of land containing one hundred and sixty acres belonging to the defendant. The mortgage records disclosed a pre-existing conventional mortgage, covering the land seized, executed by Joseph Cappel in favor of William G. Cappel.

Representing this mortgage to be a pure simulation designed to protect the property from the pursuit of the creditors of the mortgagor and alleging injury to themselves thereby, plaintiffs brought this action to have the same adjudged void and of no effect, and the inscription thereof erased.

Alleging that the mortgage notes, representing the pretended indebtedness, had been transferred by notarial act to J. Clifton Cappel, the son of Joseph Cappel, and that this transaction was likewise a simulation and without consideration, they made Clifton Cappel a party defendant, along with Joseph Ohappel, the mortgagor, and William G. Cappel, the mortgagee. They also made A. M. Bordelon clerk of court and custodian of the mortgage records, a party to the suit, to the end of commanding the erasure of the mortgage by him.

Joseph Cappel appeared and excepted to the action on the ground that prior to its institution he had made a cessio bonorum for the benefit of his creditors, that the insolvent proceedings were then pending, and an order had been granted therein staying all process against his person and property. He represented that plaintiffs had filed an opposition to the cession, in that way had made themselves parties to it, and that the action now under consideration was in violation of the order staying proceedings against him. His position is that no suit in which he is a party defendant can be brought or prosecuted outside of the insolvent proceedings. He prayed the dismissal of the petition.

No appearance has, as' yet, been made by the other three defendants.

There was judgment sustaining the exception and dismissing the entire action as in case of non-suit.

Plaintiffs appeal.

We think the dismissal erroneous.

The action is not one directed against either the person or property of the insolvent. R. S. 1790. Its purpose is to remove a cloud, a fictitious encumbrance appearing on the public records against certain real property standing in the name of the insolvent. It is a proceeding directed against this encumbrance.

While the insolvent is a party to the suit, he is not the only party defendant. There are two co-defendants, besides the clerk of the court. While J. Clifton Cappel, one of the defendants, appears on the bilan of the insolvency as a creditor, and may be considered a party to such proceedings, and while as to him, the exceptor and the clerk of the court, the questions presented in the pending action might be litigated within the insolvent proceedings, the other defendant, William G. Cappel, is not a party to the insolvent proceedings. Plaintiffs’ cause of action is against him as well as against Joseph Cappel and J. Clifton Cappel. He was alike mortgagee and transferror of the mortgage notes to Clifton Cappel. Both the mortgage and transfer are attacked as simulations. He was, therefore, necessarily a party to the action.

Plaintiffs can not be forced to litigate these questions with him, a stranger to the insolvency, in the concurso or insolvency proceedings. He could bring an independent action against him, and to that action J. Clifton Cappel, the clerk of the court, and the insolvent, were not improperly made parties, with this exception, viz.: that the syndic of the insolvent estate should be substituted for the insolvent.

The action is not one seeking to take property from the insolvent estate, nor to recover a money judgment against the insolvent, nor to subject his person to any process.

It is alike to the interest of the attacking creditors, the other creditors of the insolvent, the insolvent himself and his syndic, to rid the real property of the encumbrance sought to be declared void.

The attacking creditors had seized the property before the cession was made, having a judicial mortgage resting thereon, primed only by the conventional mortgage denounced as a simulation.

The insolvent is without interest to throw obstacles in the way of freeing the property of this encumbrance. The most that he, or his syndic, could do was to appear and ask that the action be cumulated with the insolvent proceedings and transferred to be prosecuted there; and if William G. Cappel, that one of the defendants who is no party to the insolvency proceedings, object to such cumulation and transfer, litigate that question with him there and then.

But as the matter appears before us now, the court a qua has dismissed an action against three other defendants, as well as against the insolvent, on an exception filed by the latter, purely personal to him, or rather affecting him only.

Nor can the instant action be viewed as an attempt to classify mortgages standing against the property of the insolvent. That can only be done in the concurso. The utmost that may be alleged against it, on this line, is that it is a dispute between creditors; not, however, as to which shall take precedence over the other, but whether the mortgage asserted by one of them ever had, or has now, any existence whatever, to the determination of which question a third person, having no interest in, and a stranger to, the insolvent proceedings, is and must be a party.

If all parties to the present action were necessarily parties to the insolvent proceedings by being creditors of the insolvent, or otherwise, then we should say that the results sought herein should be' litigated to a conclusion in the concurso through proper oppositions filed.

But plaintiffs’ action being partly against a stranger, he may attack him in a direct suit, and if the syndic of the insolvent has an interest to prosecute, protect or defend in such action, he may make himself a party, or be made a party, thereto.

And it is no sufficient argument against the right to bring a direct action against the stranger to say that, though a stranger to the insolvent proceedings, he might perhaps be made a party to .the opposition filed therein having for its object the contestation of the questions raised in the direct action.

All the more is this true where, as in the instant case, the action is not one, in its effects, bearing upon either the person or property of the insolvent.

It is therefore ordered, adjudged and decreed that the judgment appealed from, dismissing plaintiffs’ suit on exception filed, be annulled, avoided and reversed, and it is now ordered that the exception aforesaid be overruled, the suit reinstated and proceeded with according to the views herein expressed, and the law costs of both courts to be taxed against the defendant and appellee.


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    No. 12,717.
    Joseph Cappel vs. His Creditors.
    A creditor may oppose a fraudulent surrender any time from its first appearance in court down to within, ten days next following the meeting of creditors.
    The statute which declares that a creditor who proposes to charge fraud against his debtor, shall do so within the ten days next following the meeting of creditors, fixes only the limit of time beyond which he may not do so.

    APPEAL'from the Tenth Judicial District Court for the Parish of Avoyelles. Oullom, J.

      A. J. Lafargue, Cappel & Cappel for Plaintiff, Appellee.

      Couvillon & Son for A. Baldwin & Co., Defendants, Appellants.
    Argued and submitted February 11, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

In 1883 and for several years prior thereto Joseph Oappel conducted a mercantile business.

He failed in the year named, ceased business, suits were brought, by his creditors and judgments obtained.

No settlement or adjustment was effected. Time passed on, some of the claims and judgments were permitted to prescribe, others were revived and kept alive. Among the latter was the judgment of A. Baldwin & Co., opponents herein, now amounting, principal and interest, to more than two thousand dollars.

It seems that execution issued on this judgment in 189V and under it a certain tract of land, containing one hundred and sixty acres, was seized.

Following this seizure, the judgment debtor, on June 14, 1897, filed a petition, setting forth his failure in business in 1883 and the causes, therefor, and his continued insolvency and inability either to meet his obligations or to resume business. He prayed to be permitted to make a cession of his property and for the benefits of the insolvent laws. He submitted a schedule of liabilities and assets, a list of creditors, etc., and asked that a meeting of his creditors be called, and, meanwhile, that all proceedings against his person and property be stayed.

An order of court was, thereupon, made, accepting the cession of property for the benefit of the creditors, directing a meeting of creditors to be held, and staying proceedings against the debtor and his property as prayed for.

The only property scheduled by the insolvent as forming his estate was the one hundred and sixty acres of land under seizure by Bald - win & Co. on their judgment.

It was given a valuation of one thousand dollars.

Debts amounting to six thousand and twenty-eight dollars and nine cents, principal, were exhibited — the largest being a mortgage claim for four thousand dollars put down in favor of J. C. Cappel, the son of the insolvent.

No mention is made of the books, notes, accounts, stock of merchandise, etc., belonging to the business he had conducted in 1883, the failure oí which is alleged as the reason of his insolvency and the justification of his purposed cession.

The meeting of creditors was held on September 1, 1897. Certain creditors appeared, made proof of their claims, voted to accept the surrender for the discharge of the debtor, for O. D. Oappel as syndic, and for the sale of the property for cash after thirty days’ advertisement. The notary kept the meeting open for thirteen days, though no creditors appeared after the first day.

The only creditor named on the schedule who took no part in these proceedings was A. Baldwin & Co., who held under seizure the only property surrendered.

The proees verbal of the creditors’ meeting was returned into court on September 14.

On the 1st of September, the day the meeting opened, Baldwin & Co. filed an opposition to the insolvent proceedings. They represented they were judgment creditors of Joseph Cappel and held under seizure a certain tract of one hundred and sixty acres of land worth more than two thousand dollars; that a short while after its seizure the judgment debtor filed insolvent proceedings; that they oppose these proceedings and the cession on the grounds substantially that none of the parties placed on the bilan as creditors are creditors save themselves; that the cession is not a bona fide surrender, having been made more than fourteen years after the alleged cause of failure; that the insolvent had failed to present, account for or deliver over the books, accounts, notes, merchandise, etc., of his mercantile business, and that he had been guilty of fraud in making dispositions of property and money so as to avoid the pursuit and reach of his creditors. They demanded that he be .adjudged guilty of fraud; that the surrender and the appointment of syndic be disallowed; that the whole proceeding be rejected, and that the stay against the person and property of the insolvent be revoked.

To this opposition, in November following, the debtor filed an exception of prematurity, which was sustained and the opposition dismissed.

Following the dismissal of the opposition, and on the same day, the debtor presented a petition setting forth the action taken at the creditors’ meeting, averring no opposition thereto and praying that the proceedings be approved and homologated, and that the syndic named by the creditors be confirmed. Immediately thereupon the court granted the order as prayed for.

From the judgment dismissing their opposition Baldwin & Co. took a suspensive appeal.

The only question we can now pass upon is: Was the ruling of the court a qua on the exception of prematurity correct?

We are constrained to hold it was not.

Baldwin & Co., judgment and seizing creditors, could present their opposition to the insolvent proceedings, to the proposed cession, charging fraud and injury, immediately upon the filing of the proceeding. They did not have to wait until the meeting of creditors was held, or until the prooes verbal had been returned into court and then file it within ten days thereafter.

A creditor may oppose a fraudulent surrender any time from its first appearance in court down to within ten days next following the meeting of creditors.

In the instant case, the meeting of creditors was held on the 1st of September; on that day all the creditors who intended to participate, participated; on that day all the votes intended to be cast for acceptance of the cession and for syndic, were cast. That was the day the opposition was filed. It was timely, not premature. It was timely as to the appointment of syndic, for the creditors named that official on that day.

The statute, which declares that a creditor who proposes to charge fraud against the debtor shall do so within the ten days next following the meetiug of creditors, fixes only the limit of time beyond which he may not do so. R. S. 1802; 46 An. 1176.

There is no direction that a creditor may not charge this fraud prior to the meeting of creditors, and no reason exists why a creditor, with good grounds for alleging fraud, must withhold such allegations until the creditors shall have assembled in meeting, Creditors can not pass upon and decide questions of fraud at their meeting. Such questions are for a jury. R. S. 1802 et seq.

And because the creditors may, at their meeting, decide against acceptance of the surrender is no argument against the filing of charges of fraud prior to the meeting. If, when the creditors meet, they refuse to accept the surrender, the opposition previously filed might, perhaps, prove unnecessary. But the possibility or contingency of non-acceptance should not militate against the right of creditors to attack a fraudulent cession as soon as proceedings therefor are taken.

Besides, it must be remembered that in the preliminary order which the judge makes he accepts the cession for the benefit of the creditors. R. S. 1789. So that there is, from the very start, a cession to oppose. 40 An. 95; 46 An. 1429.

Ths authorities cited in appellee’s brief, as sustaining a view contrary to that herein announced, do not sustain it. 40 An. 652; 46 An. 1111, 1428; 42 An. 1054; 8 L. 128; 2 N. S. 57.

The extent to which those cases go is in their reference to the ten days in which opposition m'ay be filed to the proces verbal of the meeting of creditors; ten days for filing opposition to the proceedings of creditors.

But charges of fraud against the debtor are independent of the meeting of creditors, and not affected by anything done or not done there.

It is therefore ordered, adjudged and decreed that the judgment appealed from, sustaining the exception of prematurity and dismissing the opposition of A. Baldwin & Co., be annulled, avoided and reversed, and it is now ordered that the exception aforesaid be overruled, and the opposition of Baldwin & Co. be reinstated and proceeded with according to law.

It is further ordered that all proceedings had and orders taken in the matter of the insolvency of JosephCappel,to the prejudice of said Baldwin & Co., as opposing creditors, and which could not legally have been taken had said opposition not been dismissed, are, so far as the same affects said opposition, set aside and vacated — costs of both courts to be taxed against the appellee.


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    No. 12,708.
    State of Louisiana vs. Felicien Dartez.
    A bill of indictment Raving been returned against the accused, two days later he was arraigned thereunder, and, without any reservation, pleaded not guilty and elected to be tried by jury. Subsequently, on day fixed for trial, he files a motion to quash on the ground of error and irregularity in the organization of the Grand Jury.
    Held: The motion to quash can not be entertained after a plea to the indictment has been entered.
    APPEAL from the Seventeenth Judicial District Court for the Parish of Vermilion. De Baillon, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Charles Fontelieu, Edwards & Green and C. H. Mouton for Defendant, Appellant.
    Submitted on briefs January 29, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for petit larceny, convicted and sentenced to two years at hard labor.

He appeals, and urges as error the refusal of the trial judge to quash the indictment on motion to that effect made.

The ease is identical with that of State vs. Desire Hebert, Jr., and Laodiee Landry, appealed at the same time from the same parish, being No. 12,710 on the docket of this court, and decided at the same sitting of this court. See 50 An. —.

The facts of the two cases are exactly similar, and the law governing them the same.

For the reasons assigned in the Hebert and Landry case, the judgment appealed from herein is affirmed.


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    No. 12,518.
    H. & C. Newman vs. Baer & Levy—Crawford, Jenkins & Booth et als., Intervenors.
    On Motion to Dismiss Appeal. — Plaintiffs’ debt and attachment were placed at issue by the averments o£ the interventions. This debt exceeded the amount necessary to give this court jurisdiction. Therefore, as regards the plaintiff the suit and all of its incidents are subject to an appeal here. It matters not that the sum claimed by intervenors is below the appealable amount.
    On the Mekits. — An insolvent debtor can not give in payment to one creditor, to the prejudice of the other creditors, any other thing than the sum of money due.
    No distinction is recognized between a voluntary conveyance of property in fraud of creditors and such an alienation disguised under the forms of judicial proceedings.

      Any machination or contrivance by which a fraudulent preference is sought to be given will be set aside and annulled.
    Neither the law nor the courts are to be used as instruments to work injustice. To attempt this is to aggravate the offending.
    An attachment instigated by a debtor to give a favored creditor an advantage will be declared void and of no effect as to complaining creditors, but maintained as between the fraudulent debtor and favored creditor.
    Ureat weight given to opinion of trial judge, who saw and heard the witnesses, in determining questions of fact tending to prove fraud.
    A PPEAL from the Second Judicial District Court for the Parish of 1 Bienville. Watkins, J.

      Percy Roberts & Boatner and E. T. Lamkin for Plaintiffs, Appellants.

      Dormon, Reynolds & Dormon, J. W. Holbert, L. K. Watkins and W. U. Richardson for Intervenors, Appellees.
    Argued and submitted June 1, 1897.
    Opinion handed down December 18, 1897.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs sued for ten thousand four hundred and ninety-one dollars and nineteen cents on open accounts and notes. Alleging the insolvency of defendants, and averring the statutory' grounds embodied in Secs. 4 and 5 of O. P. 240, they caused defendants’ property and effects to be attached and garnishment process to issue to a number of their debtors.

Defendants were merchants and owed varipus other creditors: Crawford, Jenkins &. Booth, claiming a debt of six hundred and seventy-eight dollars and ninety-three cents, intervened, contesting the attachment, alleging the same to be fraudulent and collusive, intended to defeat the creditors of defendants and to aid the latter in fraudulently disposing of and placing their property beyond the reach of their creditors. They denied that any indebtedness existed on part of defendants to plaintiffs, and averred, in substance that the whole proceeding on part of plaintiffs was a fraudulent device, the result of a collusive agreement between them and defendants.

Theirs was a revocatory action, set up by intervention, seeking to annul acts of their debtor in alleged collusion with others, done in fraud of their rights.

They prayed judgment setting aside and annulling the attachment, and decreeing the debt declared on to be fraudulent and fictitious.

These parties had previously, but subsequent to plaintiffs, in a •separate suit in the same court, sued out writs of attachment against defendants, under which they had caused to be seized the same property previously seized by plaintiffs. They had prosecuted their suit to judgment, decreeing recovery of amount claimed and sustaining their attachment, with recognition of privilege as attaching •creditors.

Bight other creditors of defendants, who had likewise first sued separately and attached the same property, filed similar interventions, making substantially the same allegations and asking decrees similar to that prayed for by Orawford, Jenkins & Booth.

The largest of the claims set up in the interventions was seven hundred .and nineteen dollars and thirty cents; the smallest one hundred and ninety dollars and twenty-seven cents. They aggregated three thousand five hundred and twenty-two dollars and twenty-nine cents.

Plaintiffs answered the interventions, denying the fraud and conspiracy charged, declaring the good faith of their attachment and averring that the same was based on a valid indebtedness for the whole amount claimed.

Defendants answered the interventions denying the allegations of fraud, conspiracy and collusion.

They filed no answer to plaintiff’s demaud, nor to the original •suits of the intervenors.

There was judgment in plaintiffs favor against defendants for the .amount sued for, sustaining their attachment, recognizing their privilege as attacking creditors and ordering the property seized to be sold to satisfy their demand, except in so far as the intervenors were concerned, who were, in the same decree, awarded judgment .against plaintiffs, annulling and setting aside the attachment in so far as it affects the rights of the intervenors, and adjudging the latter to be paid by preference out of the proceeds of the attached property in the order of the levy of their respective writs.

The effect of this judgment is to settle first out of the proceeds of the property the claims of the intervenors, and awarding to plaintiffs on their judgment the remainder.

The property attached was estimated in the sheriff’s inventory at ten thousand one hundred and eighty-two dollars and eighty-nine cents.

Plaintiffs appeal, and in this court are met by motions to dismiss filed on behalf of each intervenor, on the ground that their respective judgments, ordering payment by preference out of the funds n the sheriff’s hands are each below the appealable jurisdiction of this court

On Motion to Dismiss.

The question presented by the motions must be considered settled adversely to the contention of intervenors.

Plaintiffs’ debt and attachment were placed at issue by the averments of the interventions and thus constitute the matter in controversy. The amount claimed by plaintiffs at the institution of the suit imparts to it its character in relation to its susceptibility of being the object of an appeal — that is to say, so far as regards the plaintiffs, all the incidents in the suit are subject to an appeal. Hart vs. Lodwick, 8 La. 167; Lumber and Shingle Company vs. Hart, 48 An. 1035; Picard & Weil vs. Wade, 30 An. 625; 31 An. 452; 24 An. 442; 21 An. 366; 2 An. 189.

The motion to dismiss is denied.

On the Merits.

At the opening of the business season in the fall of 1896, defendants, Baer & Levy, found themselves insolvent.

The crops of the year in the section of country in which they did business had failed and the prospect for collection of outstanding accounts was poor indeed. Realizing their situation and the utter inability to meet their obligations, they, for reasons unnecessary to inquire into, made up their minds to favor H. & C. Newman, plaintiffs herein, who were their largest creditors. Accordingly, through their contrivance and at their dictation, H. B. Coyle, the man'aging clerk of the firm, wrote plaintiffs that he feared something was “going crooked” in regard to the business, and advising them to look after their interests. The pretence of this letter was that it was written by Coyle of his own motion and in the greatest confidence and secrecy, and because (to use his own language) “I owe this much to you.” 'The facts are, as disclosed by the record, the idea of writing the letter originated with defendants, and Ooyle would not have written it at all but for the instructions given him to do so.

On receipt of the letter plaintiffs dispatched David March, a trusted employee, to the scene of action, with directions to protect their interest. Within a few days the attachment was sued out. Before it was sued out he was in Monroe, where the senior member of the firm of defendants lived, and from there he went to the town of Bienville, where the business house of defendants was located.

At Bienville, the day before the attachment, he was closeted with the junior member of defendants’ Arm, who was in immediate charge of the business, and was given access to the books, from which he took a list of forty-two of the best customers of defendants — parties who owed them — and whom he caused to be garnisheed under the writ of attachment, which issued the next day, and under which the store was closed, ai)d all the goods and property of defendants seized, including the books, accounts, notes and other papers of the Arm. These books, notes, etc., were not in the store, but were at the residence of H. B. Ooyle, who was instructed the day preceding the attachment by the junior member of defendants’ Arm, within the hearing and presence of David March, that when the sheriff came to attach the store, to look at the papers, and if they were sued out in the name of H. & O. Newman, then to deliver to him the notes and books, but if found to be in the name of any other creditor or creditors, not to turn them over. When the attachment was made the sheriff was accompanied by one of plaintiffs’ attorneys, who directed him to seize the books, notes, etc., and told him they were at the residence of Ooyle, thus showing the possession of knowledge by plaintiffs through their attorneys and agents, which could only have been derived from defendants or their employees. After seizing the stock of goods the sheriff repaired to the house of Ooyle, accompanied by the latter, who there turned over to him the books, notes and other papers.

It is shown that the books had been buried in Ooyle’s garden by his cook, into whose custody they had been given. It is shown that for eight or ten days before the attachment it was known to defendants’ employees and to mnny other persons in and around Bienville that an attachment was imminent, and that the attaching creditors would be H. & 0. Newman. Ooyle knew of it two weeks before and had obtained the information from defendants themselves, and it is further shown that in preparation for the attachment defendants instructed Ooyle to collect as much cotton and money as possible and to close outstanding accounts by taking notes, which were made payable some to A. Levy, one of defendants, others to Ooyle himself, and others to the order of the makers and by them endorsed. Also that the day prior to the attachment a settlement was made with one of the debtors who owed a considerable sum of money, and who was perfectly solvent and responsible, by which settlement, and as an inducement to make it, a discount of one hundred and fifty dollars was allowed. One item of this debtor’s account was twelve dollars for the rent or hire of a horse belonging to defendants for the current year, on which a deduction of two dollars was made for the reaBon that the horse was to be seized before the year was out. In point of fact it was seized the next day.

Baer & Levy undoubtedly procured H. & 0. Newman to attach them. A sifting of the voluminous evidence in the record leads inevitably to this conclusion.

It is impossible to escape the conviction that the purpose of the suit was, on one part, to give, and, on the other, to receive an unfair advantage over the other creditors.

We might acquit plaintiffs themselves, on their testimony, of direct knowledge of this. They were away in New Orleans. But their agent, March, was on the ground with general instructions to act for them and it is vain for him to deny connivance and collusion..

The abundant evidence of his complicity overwhelms his protest, as it does the denial of defendant Baer, whose testimony was taken under commission though residing within two hours by rail of the court house.

Defendant Levy did not go on the stand in the effort to exculpate himself, or his firm, nor was he called to testify by plaintiffs though within easy reach of the process of the court.

Plaintiffs can not escape the consequences of their agents’ acts.

It must be held that David-March, representing them, consented to the acts and doings of defendants in furtherance of their and his purpose to secure to plaintiffs an unfair advantage, and ultimately benefit defendants themselves by shielding the business from the pursuit of the other creditors, and, later, enabling them to handle it in the name of or through other parties.

The record teems with numerous other facts, incidents and circumstances that confirm this view, as well as show that defendants aided plaintiffs all through this litigation in the effort to repel the assault of intervenors.

This conduct of defendants, assented to by the representative of plaintiffs, who sought to turn it to their advantage and thereby secure the full settlement of their claim out of property which was the common pledge of all the creditors, was the doing of a thing reprobated by the law and may well form the subject of the revocatory action.

An insolvent debtor can not give in payment to one creditor to the prejudice of the others any other thing than the snm of money due. C. C. 2658; Taylor vs. Knox, 2 La. 16; Lovell vs. Payne, 30 An. 511.

The acts and doings of an insolvent debtor through which he seeks to give a fraudulent preference to one creditor over others are all the more to be reprobated when the machinery of the law is invoked to give the semblance of plausibility and propriety to such proceedings. Haas vs. Haas, 35 An. 885.

The law recognizes no distinction between a voluntary conveyance •of property in fraud of creditors and such an alienation disguised under the forms of judicial proceedings.

It will annul and set aside any machination or contrivance by which this is sought to be done. C. C. 1969, 1970, 1983, 1984, 2658; Muse, Syndic, vs. Yarborough, 11 La. 530.

Neither the law nor the courts are to be used as instruments to work injustice. To attempt this is to aggravate the offending.

An attachment instigated by a debtor for the purpose of giving a favored creditor an advantage will be declared void and of no effect so far as other creditors are concerned who judicially complain of ■the same as a fraud on their rights. O. O. 1977.

Such attachment, however, will be maintained as between the fraudulent debtor and the favored creditor.

The conclusions of the court below in this case were the same as those herein announced.

In determining questions of fact tending to prove fraud, great weight is to be given to the opinion of the District Judge who saw and heard the witnesses. Tatum vs. Collins, 43 An. 855; Commission Co. vs. Bond & Williams, 44 An. 844.

Judgment affirmed.

Nicholls, C. J., takes no part, not being present at the argument.


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    No. 12,689.
    State of Louisiana vs. J. W. Wiggins.
    Not a fatal irregularity to wait until panel is completed before administering oath to jurors, even though there be an adjournment over night, where those accepted as jurors on the incomplete panel are kept in the custody of the sheriff and properly instructed not to speak of case, etc.
    Signature of witness to his deposition, taken at preliminary examination before the judge, not required; nor that the testimony at such examination betaken down by the judge himself, if done under his supervision; nor is it necessary that it be formally certified to by the judge, or clerk of court.
    A witness can not be cross-examined as to a fact collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony,
    A witness can not be contradicted without first laying a foundation therefor by calling his attention to the time, place and circumstances, as well as to the parties to whom the alleged statement was made, and thus giving him the opportunity of denying or explaining. And the doctrine holds good though the witness be absent or dead, and his previously taken deposition is offered. And it makes no difference that the contradictory statement was made afier the deposition was taken, or, if made before, was not known to the accused or his counsel.
    It is for the court, not the jury, to decide what is and is not admissible as evidence, and to pass upon the sufiiciency and effect of testimony offered to lay the foundation for the production and admission of testimony relating to the merits of the case, taken at a previous trial, by a witness absent at the subsequent trial.
    Before evidence of threats on part of deceased can be introduced, there must be a showing of an overt act, or hostile demonstration.
    An accused person not going on the stand as a witness is entitled to have the jury instructed that his declination of the privilege gives rise to no inference against him And if he goes on the stand, the jury may properly be charged that in weighing his testimony they may take into account the fact of interest in the result of the trial.
    APPEAL from the Eighth Judicial District Court for the Parish of Catahoula. Dagg, J.

      ■M. J. Cunningham, Attorney General, and D. IV*. Thompson, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      John S. Boatner and H. B. Taliaferro for Defendant, Appellant.
    Argued and submitted February 12, 1898.
    Opinion handed down March 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused, indicted for murder, was convicted of manslaughter, and, from a sentence of twenty years at penal servitude, appeals.

Numerous bills of exception bring under review almost every ruling made by the court below in the progress of the trial.

Error is assigned to the admission of the testimony of one Joseph Briscar, a witness for the State, taken at the preliminary examination. Briscar was absent permanently from the State at the time of the final trial. This was first .shown, and then his testimony at the preliminary examination offered. When this testimony was taken at the preliminary examination the accused was present with his counsel, and there was full opportunity for cross-examination.

Its offer at the trial was resisted on the grounds (1) that the testimony had not been reduced to writing, or taken down by the judge himself, sitting as a committing magistrate, but by another person; (2) that the deposition, or written testimony, was not properly authenticated, there being no certificate by the clerk, nor seal of the court attached.

The judge, in overruling the objections, annexed the deposition to the bill of exceptions. This deposition begins as follows: “ The State of Louisiana vs. J. W. Wiggins. Preliminary examination held before the Hon. J. L. Dagg, Judge of the Eighth District Court, on November 16, 1896. The accused and his counsel, H. B. Taliaferro, and D. N. Thompson, District Attorney, being present. Joe Briscar, sworn for the State.” Then follows his testimony, at the close of which is appended his signature and the jurat: Sworn to and signed this 16th November, 1896. J. G. Taliaferro, clerk.”

There was proof by the clerk of court at the trial, and before the deposition was received in evidence, that he had taken it down at the preliminary examination; that it was taken down in the presence of the judge, the accused and his counsel, under the direction and-supervision of the judge, and that the witness had signed it in the presence of all the parties, and his signature had at the time been ■attested by him (the clerk). This testimony of the clerk was objected to by the accused on the ground that parol evidence was inadmissible to prove the verity of testimony taken ata preliminary examination, or to prove anything beyond what is shown by the proceedings themselves, and error is assigned to the ruling of the judge admitting it. The objection is without force. The witness was competent and the evidence legal.

On the showing made, which is really more than the law requires, the deposition of Briscar was properly admitted to be read to the jury. State vs. Allen, 37 La. An. 685.

The signature of the witness to the deposition is not required by the statute (R. S. 1010) though attached in this case.

It is not essential that testimony at the preliminary examination of a person accused of crime should be taken down by the hand of the judge himself. It suffices if it be done under his supervision and direction. Nor is it required to be formally certified to by the judge or clerk of court. State vs. Allen, 37 La. An. 685.

Error is assigned to the refusal of the court to permit the defence to propound this question to their witness, Crooks: “Do you or mot know whether Mr. Gillespie was drunk any time before the homicide within a period of two months.” The purpose was to contradict what Gillespie, a State witness, had said on cross-examination, to the effect that he had not taken a drink of wiskey for two months prior to the killing. The objection to this, that it was not competent to contradict the witness upon a matter not pertinent or material to the issue, brought out by counsel for the accused on cross-examination, was properly sustained.

It is well settled that a witness can not be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony. 1 Greenleaf on Evidence, Sec. 449; Hussey vs. State, 6 So. Rep. 425; 9 So. Rep. 448; 19 So. Rep. 439; State vs. Spencer, 45 La. An. 1.

Error is assigned to the refusal to permit Boatner and Orooks, witnesses for the defence, to testify that the State’s witness, Briscar, who was absent, but whose testimony taken at the preliminary examination had been offered and read to the jury, had made a contradictory statement to that set forth in his deposition, in this, to-wit: that whereas he had testified he was in the room when the shot was fired which killed the deceased, he had said to or in the hearing of Boatner and Crooks that he was not in the room. Objection was made that the witness, Briscar, could not thus be contradicted without first laying a foundation therefor by calling his attention to the time, place and circumstances, as well as to the parties to whom such alleged statement was made, and thus giving the witness the opportunity of denying or explaining the same. It appears that neither the accused nor his counsel had been made aware of this conflicting statement of Briscar, alleged to have been uttered prior to the giving of his testimony at the preliminary examination, and this is strenuously urged in mitigation and avoidance of the effect of the failure to lay the foundation for discrediting him in the cross-examination at the preliminary trial.

This contention of the defence can not be sustained.

The authorities to the contrary are overwhelming.

The objection to this testimony, sustained by the court a qua, is well settled law. And the doctrine holds good though the witness be absent or dead. Starkie on Evi. 409, 410; Pruitt vs. State, 9 So. Rep. 406; Lowe vs. State, 5 So. Rep. 435; Sharp vs. Hicks (Ga.), 21 S. E. Rep. 208; Mattox vs. United States, 156 U. S. 237; A. and E. Ecy. of Law, Vol. 29, pp. 787, 788; Stewart vs. State (Tex.), 26 S. W. Rep. 203; Knoblock’s Crim. Dig. 437; State vs. Johnson, 35 La. An. 871; Ayres vs. Watson, 132 U. S. 394; Fletcher vs. Fletcher, 5 An. 406.

And the rule is not varied by the fact that the contradictory statement was made after the deposition was taken, or, if made before, was not known to the accused or his counsel. Ryan vs. People (Col.) , 40 Pac. Rep. 777; Mattox vs. U. S., 156 U. S. 246.

No effort appears to have been made on part of the defence to obtain an examination of the witness Briscar in relation to his alleged contradictory statements, so as to bring the case within the rule of Fletcher vs. Henley, 13 La. An. 191.

Error is assigned to the refusal of the court to charge the jury that in the absence of any certificate of the clerk, or seal of the court to the deposition of the State’s witness, Briscar, taken at the preliminary examination, and in the absence of any proof to the jury that the alleged deposition contained a true statement of the evidence of the witness, the same should not be considered by the jury as legal evidence, but disregarded.

The ruling of the court was correct. Briscar’s testimony was sufficiently authenticated and the showing ample that the deposition was a true statement of his evidence at the preliminary trial.

It was properly admitted in evidence, and being in evidence the jury could properly consider it. Nor was it essential that the evidence of the witnesses, Taliaferro, Dosher and Spain, relating exclusively to the question of the absence from the State of the witness Briscar, and to that of the proper takiDg down of his testimony at the preliminary examination, with the purpose and view of laying the foundation for the offering of the deposition, should have been taken in the presence of the jury, or read to them. Such evidence had no relation whatever to the merits of the case; it simply established a predicate for the admission of Briscar’s previous testimony. It is for the court, not the jury, to decide what is and is not admissible as evidence and to pass upon the sufficiency and effect of testimony offered to lay the foundation for the production and admission of testimony relating to the merits of the case, given at a previous trial by a witness absent from the State at the subsequent trial. As the jury could not pass upon the testimony had it been taken in their presence, the accused is without ground of complaint that it was taken out of their presence.

Besides, if this was proper matter of complaint and was prejudicial to defendant, he should have made objection at the time and preserved his rights by a bill of exceptions.

This he did not do, but sought, long after the trial, to have the minutes of court amended so as to show that the statements of the witnesses named were made out of the presence of the jury; and to the refusal of the judge to do so, on the ground that it is not necessary for the minutes to contain a minute recital of all that trans-spires at the trial, takes a bill of exceptions. We do not find that the court erred in this, and the bill taken to the denial of motion to thus amend the minutes can not avail the accused, even though we should admit it as part of the transcript of the case, having been presented long after the case was docketed here.

Error is assigned to the ruling refusing to allow the accused to ask R. J. Lanier, a witness in his behalf, whether or not O. J. Hootsell, who testified on behalf of the State, lives in open concubinage with a negro woman and has a family of children by her. The question and answer sought to be elicited were objected to on the ground that the proper foundation bad not been laid for the introduction of such testimony; that the general character and reputation only of the witness could be inquired into; and that the question propounded was leading. These objections were well taken. 1 Greenleaf on Ev., See. 461; Wharton’s Crim. Ev., Secs. 486, 487; Slidell, J., in State vs. Parker, 7 La. An. 89.

Error is assigned to the ruling not permitting the accused, while on the stand as a witness in his own behalf, to state that deceased threatened him personally a short time previous to the homicide.

The State objected upon the ground that the foundation for this had not been laid, no overt act, or hostile demonstration, having been shown. In his reasons for sustaining the objection, the judge says, among other things of the same purport, that: ‘ All the facts established on the trial showed that there was no overt act, or hostile demonstration by the deceased, and, therefore, the foundation for the testimony offered had not been laid.” It appears that all the testimony in the case, except that of the accused, negatived any act on part of the deceased in any way hostile or threatening.

Before evidence of threats on part of the deceased can be introduced there must be a showing of an overt act, or hostile demonstration. It rests with the trial judge to determine whether such showing has been sufficiently made as laying the foundation for the evidence, and his ruling in this regard will not be disturbed unless it appears that a just discretion has been abused.

Error is assigned to the charge of the judge in relation to the effect to be given by the jury to the evidence of the defendant. The accused had gone upon the stand as a witness in his own behalf. In the course of his charge the judge said: “ While our statute permits parties accused of crime to testify in their own behalf, still the jurors are the judges of the credibility (creditableness) and weight of such testimony, and in determining such weight and creditability, the fact that such witnesses are interested in the result of the cause may be taken into account by the jury, and you may give the same such weight as you think it justly entitled to under all the circumstances of the case and in view of the interest of such witnesses.”

It is urged that this language was improper and calculated to impair the evidence of the accused in his own behalf with the jury.

A careful consideration of the question here raised ends in a conclusion adverse to the contention of defendant.

An accused person who does not go on the stand is entitled to have the judge charge the jury that the fact that he declines to avail himself of the privilege gives rise to no inference against him. State vs. Walsh, 44 An. 1134; Wharton Crim. Ev., p.435; Act 29 of 1886.

So, too, if he goes on the stand as a witness the judge may charge the jury that in weighing his testimony they are entitled to take into account the fact of interest in the result of the trial. Am. and Eng. Ency. of Law, Vol. 29, p.677; Pruitt vs. State, 9 So. Rep. 406; Reagan vs. United States, 157 U. S. 301; State vs. Tarter, 37 Pac. 53; People vs. Resh (Mich.), 65 N. W. 99; State vs. Fiske, 63 Conn. 388; Sackett’s Instructions to Juries, Secs. 20, 21, p. 43.

Nor is such instruction prejudicial error because it singles out the accused from the other witnesses in the case. No other witness occupied the same position as did the accused, and the instruction, therefore, does not apply to him a test of credibility which could have been applied to others. Doyle vs. People (Ill.), 35 N. E. 372.

This was, in effect, charging one or more of the general rules of evidence, viz.: That the motive or bias of a witness, his interest in the outcome of the trial, may affect, more or less, his evidence for credibility, and that the jury are the judges of the effect and value, the weight and sufficiency, of the evidence addressed to them.

The statute (Act 29 of 1886) specifically requires the judge to charge the jury that such testimony shall be weighed and considered according to the general rules of evidence. It was intended, of course, that the judge should nob merely say to the jury, “You are to weigh and consider the testimony of the accused according to the general rules of evidence,” but should explain to them what are the particular general rules of evidence that are applicable to testimony given by an accused person. This is what the judge in the instant case did. This court said in State vs. Walsh, supra, that “ the weight of the testimony (of the accused) is left to the jury.” Wharton, Crim. Ev., Secs. 434, 436, 439. If it is left to the jury, it is proper for the judge to tell them so.

The words “ but all testimony shall be weighed and considered according to the general rules of evidence,” in the concluding clause of Sec. 2 of the act of 1886, have reference, clearly, to all testimony given by accused persons under the permission of the act.

• The judge is to charge that all such evidence — i. e., that given by defendants in criminal causes, “ shall be weighed,” etc. It was not necessary to use that language as to the testimony of other witnesses in a ease, for it has always been the law that their evidence is to be •weighed and considered by the general rules of evidence. This demonstrates that the lawmaker intended to apply the language used in the statute to the testimony of accused persons. It is with reference to accused persons only that Sec. 2 of the act speaks.

This disposes of the objections presented through bills of exception, and leaves only to be considered error assigned as appearing on the face of the record in this, to-wit: that nine of the jurors called on the first day of the trial were accepted after examination on their voir dire; that the regular venire being then exhausted tales jurors were ordered summoned to complete the panel; and that the court then adjourned until the next day without having first caused the nine persons accepted as jurors to be sworn as such.

It is urged that it was the duty of the court before adjournment and before anything else was done in the case, and without waiting to complete the panel, to swear in the nine jurors.

It is shown by the record that before adjourning for the day, the nine persons accepted as jurors were put in charge of the sheriff and kept together in custody, the court first instructing them not to talk to each other, nor to permit any other person to talk with them about the case; that the next day the panel was completed by the selection and acceptance of three more jurors from the tales jurors summoned; and that, thereupon, the oath prescribed by law was administered to the jurors and the trial was proceeded with.

We have been referred to no requirement of statute and to no authority sustaining the contention of defendant, that what was done or not done, in the respect, mentioned, and which is the common practice, is fatal irregularity, even if the same may be brought to our attention without'a bill of exceptions seasonably taken thereto. Nor has a consideration of the point presented convinced us that error was therein committed to the prejudice of the accused, such ás justifies the reversal of the verdict and sentence appealed from.

Judgment affirmed.

Nicholls, C. J., takes no part.