text:
    No. 775.
    Edward M. Millard v. John F. Smith, Administrator, et als.
    The language: “I have no objection to the payment of the within note,” is unambiguous, and the testimony to establish something else than is imported by the language, was properly excluded.
    Besides, such an indorsement, as above mentioned, on the note of a deceased person, was not an engagement on the part of the administratrix of the estate to pay the debt. This is immaterial, however, as the note was prescribed at the time of said indorsement.
    Parol evidence is inadmissible to prove an acknowledgment or promise of a deceased person to pay a debt, in order to interrupt prescription.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. T. H. Lewis, acting judge. Jury trial.

      Martel & Hudspeth, for plaintiff and appellant. Bailey & Estelette, for defendants and appellees.
   Ludeling, C. J.

This is an action against the administrator of the succession and the heirs of Clemence Guilbeau for two thousand dollars, and interest from twenty-ninth of April, 1859, on the grounds that Clemence Gilbeau had assumed the payment of a note executed by her deceased husband for said sum, and that she had also rendered herself liable for the debt by disposing of property belonging to the succession at private sale, and by otherwise intermeddling with the property of the succession ; and that the heirs had also rendered themselves liable personally for the debt by appropriating property of the Succession to their own uses, as well as by promises to pay the debt.

The answers severally contain a general denial and the plea of prescription of five years.

The case was tried by a jury who found a verdict in favor of the •defendants : judgment was rendered accordingly, and after an ineffectual effort to obtain a new trial, the plaintiff appealed.

' On the trial the plaintiff offered witnesses to prove what Clemence Guilbeau said at the time of and before the signing of the acknowledgment on the note, which was objected to. But the bill of exceptions does not inform us what the objections were, except so far as we can infer them from the reasons of the judge pro tempore for sustain ing them. He says: “The words, ‘I have no objection to the payment of the within note,’ and signed by Clemence Guilbeau in her private capacity, leaves in doubt the question as to whether the ■signer intended to bind herself in her personal or in her fiduciary ■capacity j there is, therefore, a latent ambiguity. Any statement by •the signer made previously or subsequently, and made in reference to the signing, is admissible to explain the ambiguity. Vague statements, not having direct reference to the indorsements are not admissible.” To this ruling the plaintiff excepted. If by the above •statement ihejudge pro tempore meant that it was competent to prove what was said at the time of signing the acknowledgment or before,, in order to show whether Clemence Guilbeau signed it in her fiduciary capacity or not, we fail to perceive the importance of the evidence; for, in either event, there is no assumption to pay the debt. If, on the-other hand, it was meant that the terms of the indorsement are ambiguous, and the testimony was intended to explain it, we can not concur in this view.

The language — “I have no objection to the payment of the within note ” — is unambiguous, and the testimony to establish something else than is imported by the language, was properly excluded.

Another bill of exception was taken to the ruling of the judge receiving the testimony of the plaintiff on the grounds that a promise to pay the debt of another can not be proved by parol, and that parolevidence is inadmissible to prove anything against or beyond what is-contained in the written indorsement on the note. The judge received the testimony on the ground that it was intended to explain some ambiguity in the writing. We have already said that we do not perceive any ambiguity in the indorsement. The objections should have been sustained. The statute of 1858, R. S. 2820, provides that parolevidence shall not be received to prove any promise to pay the debt of a third person,” etc. The object of the evidence was obviously to prove such a promise or undertaking. Groves v. Scott, 23 An., 690.

And it was intended to prove something beyond, and different from the written act of the deceased. Article 2276 of the Civil Code declares-that parol evidence shall not be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, nor since.”

The plaintiff offered bo prove by parol that certain payments were made, at dates indicated by indorsements made on the note, by the plaintiff and holder, with a view to establish an interruption of prescription. This was objected to on the ground that parol evidence-was inadmissible to prove an acknowledgment or promise of a deceased, person to pay a debt in order to interrupt prescription. The objection, was correctly sustained. In succession of Heldebrandt, we said: The-act of 1858, referred to, requires a certain kind ot evidence to establish the express renunciation of prescription. We apprehend the same-character of evidence is required to establish the fact creating the-presumption of acknowledgment, or tacit renunciation.” 21 An. 351; 23 An. 549, Broussard v. Breaux, and 23 An. 531, Pavy v. Escoubas.

On the merits we think the judgment of the lower court correct. The indorsement on the note-is not an engagement on the part of Clemence Guilbeau to pay the debt. And whether it be regarded as an acknowledgment of the debt of the succession which she was administering, or not, it is immaterial, as at the time it was made, the mote was prescribed. An administrator can not revive a debt already extinguished by prescription. 21 An. 373; 23 An. 194, Flanner v, Lecompte et al. Neither did Clemence Gilbeau render herself liable for the debt by intermeddling. She was the regularly appointed administratrix of the estate, and could not, therefore, have been an intermeddler. The plea of prescription must be maintained.

It is therefore ordered and adjudged that the judgment of the lower -court be affirmed with costs of appeal.


source: Caselaw Access Project

author: Lude ling, C. J.

license: Public Domain

text:
    No. 772.
    Hall, Rood & Putnam v. Louis v. Chachere, Sheriff, et als. Miller & Forestier, Intervenors.
    Whore Harwell sold to Mathews a plantation and slaves, who executed certain mortgage notes in favor of said Harwell or order, and subsequently mortgaged said property to Hall, Rodd & Putnam, to secure a debt due them, and then retransferred the property to Harwell, his vendor, who, as a part of the consideration of the retrocession to him, assumed to pay the notes executed by Mathews for the price of the first sale and transferred to third parties by Harwell — two of which notes were redeemed by said Harwell and transferred to Perret, these two notes were extinguished on their return to the possession of Harwell, after he had assumed their payment in the contract with Mathews, by which be repurchased the plantation for which the notes had been given.
    If conceded that Harwell could roissuo the notes, he could not have revived the mortgage by this reissuing. Mortgages are not subject to the rules of the commercial law by which tho rights and obligations of parties to commercial paper are fixed.
    'The plea that a part of the price bid at the sheriff's sale was for slaves contrarily to the jurisprudence of this State, can not he allowed when, to all intents and purposes, the sheriff's sale lias become au executed contract, and the contest between the parties relates only to tho distribution of the price.
    ■Where tho appellant, since the appeal was taken, has paid the judgment in favor of any of the appellees, this is an abandonment of the appeal as to them.
    APPEAL from the Eighth Judicial District Court, parish of St.'
    Landry. T. U. Lewis, Acting J.

      Joseph M. Moore, for plaintiffs and appellees. John H. Overton, for defendants and appellants. Henry L. Garland, for intervenors.
   Lude ling, C. J.

This suit was commenced by third opposition on •the part of the plaintiffs, claiming to he paid by preference out of the proceeds of the sale of certain property, seized and sold as the property •of one Harwell, under executions issued under judgments in favor of Miller & Forestier, and Posey, agent of Frank Perret, against said Harwell.

It appears, from the record, that Robert R. Harwell sold to Archibald Mathews a plantation and slaves for $34,000 — $8000 cash and the remainder in four installments, for which Mathews executed his mortgage notes in favor of Harwell or order. One of these notes, for $8000, was transferred to Perret shortly after the sale; two of them were pledged by Harwell with Clark, and the other was also trans-' iierred, but it does not .appear to whom.

In March, 1855, Mathews mortgaged the property bought by him to ílall, Rodd & Putnam to secure a debt due them, and then he retransferred the property to Robert R. Harwell, who, as a part of the considei ation of the retrocession to him, assumed to pay the notes (executed by Mathews for the price of the first sale), which lie had then disposed of as aforesaid. After the retransfer to Harwell, Miller & Forestier obtained judgment against him, and recorded their judgment in the parish where the property is situated. Perret also-obtained judgment on the note for $8000, which he held, recognizing his mortgage, and against Harwell personally. Miller & Forestier caused execution to be issued under their judgment on the twenty-sixth of November, 1858, and a few days thereafter Perret caused an execution to be issued under his judgment. The property was sold under these executions, and Perret bought it for $23,000. The execution of Perret was credited with the amount for which it issued,, and he retained the balance of the price bid to pay the special mortgages, appearing to exist on the property.

' It further appears that the two notes, which had been pledged to (¡lark, were redeemed by Harwell, and transferred to Perret.

The main contest is concerning the effect- of the return of these two notes to the possession of Harwell, after he had assumed their payr ment in the contract with Mathews, by which he repurchased the-plantation for which the notes had been given. If they were extinguished when they were returned to his possession, by payment or otherwise, the fund to be distributed will be ample to pay all the contesting creditors.

What, then, was the effect of the obligation of Harwell towards-Mathews, in regard to the mortgage notes given by him ¥ Clearly he assumed Mathews’ obligation to pay the notes ; and when he acquired, them, he discharged the obligation assumed by payment. If, on the other hand, he was always the owner of said notes, they were extinguished by confusion so soon as he assumed the obligation to- pay them. “ When the quality of debtor and creditor are united in the same person, there arises a confusion of right,, which extinguishes the obligation.” C. C. 2217. The principal obligation being extinguished, the accessory obligation necessarily ceased to exist. And conceding that Harwell could reissue the notes, it is clear he could not have revived the mortgage — merely by reissuing the notes. Mortgages are not subject to the rules of the commercial law by which the rights and obligations of parties to commercial paper are fixed. 4 R. 416; 20 An. 264, Dale v. Risotti.

It is, however, contended, that a part of the price bid was for slaves, and that, under the jurisprudence of this State, to this extent the purchaser is entitled to relief. The sale was for cash. The adjudicate© complied witli his bid and received the title and the property. The undistributed portion oí the price was held subject to the order of the court. To all intents and purposes, the sheriff’s sale is an executed, contract — and this contest relates only to the distribution of the price.

It appears that since the appeal was taken, the appellant has paid the judgment in favor of Hall, Rodd & Putnam. This is an abandonment of the appeal as to them.

It is therefore ordered and adjudged, that the appeal be dismissed, as to Hall, Rodd & Putnam; and that, as to the other appellees, it be affirmed, with costs of appeal.


author: Ludeling, C. J.

text:
    No. 780.
    Daniel McDaniel v. Angelina Stoval, Wife, et als.
    Where the suit is brought on a mortgage note against t.he drawers thereoi and the indorser who transferred it to plaintiff, and to enforce the plaintiff’s hypothecary action against the property mortgaged, which is in the hands of third persons, the defendants in this case, and it appears that, before the act of mortgage was recorded in the mortgage records of the parish, the purchaser against whom the mortgage existed, exchanged the property for another with D, who was a witness to the original act of sale, and whom defendants have called in warranty; ''
    Held — that, 1) being a witness to the act of mortgage was not a third person in the sense in which tlie terms are used in articles 3342, 3343, C. C.
    Besides, it appears that the mortgage was recorded long before th© property was acquired by defendants.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. E. T. Leivis, acting judge.

      James If. Moore, for. plaintiff and appellee. 3. L. Garland, for defendant and appellant.
   Ludeling, C. J.

This is an action against the makers and indorserto enforce payment of a mortgage note, executed by John S. Barlow,, and A. J. Barlow, in favor of J. B. Fontenot, who indorsed it to-plaintiff, and to enforce the plaintiff’s hypothecary rights against the property mortgaged, which is in the hands of third persons.

The answers are general denials, with a case in warranty on the part of Mrs. Stoval.

There was a judgment in favor of the plaintiff against the makers, and indorser for the amount claimed, and making the mortgage executory against the mortgaged premises in the hands of Angelina Stoval' and her husband. The third possessors alone have appealed.

The only question involved in this ease is, whether or not the mortgage aforesaid can have effect against the third possessors-.

On the twentieth of February, 1857, Jean B. Fontenot sold to John S. Barlow the property, now in the possession of Mrs. Stoval and her husband. To secure the payment of the price, a mortgage was retained, on the property. This act was not recorded in the mortgage records, of the parish until the thirteenth of September, 1858..

In the meantime, ■ to wit, on the fourth of November, 1857, the purchaser of this*property exchanged it for another piece of property, with James McDaniel, who was a witness to the original act of sale between Fontenot and Barlow. The appellants contend that inasmuch as the mortgage was not registered until after the purchaser had transferred it to McDaniel, the mortgage could have no effect against them. 'We think otherwise. McDaniel was a witness to the act of mortgage— he is not a third person ” in the sense in which the terms are used in article 3342 of the Civil Code, C. C., 3343.

And long before the appellants had acquired the property, the mortgage was duly registered; and it has been kept in force by reinscription. There is no error in the judgment.

It is therefore ordered and adjudged that the judgment of the lower •court be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 785.
    Levy & Scherer v. Solomon Loeb.
    Wliere promissory notos wcro offered in evidence, properly stamped, with the approval of the United States officer whose duty it was to stamp such notes, they were admissible, and it formed no parr of the duties of the State court to inquire whether or not the United States officer had done his duty. It was sufficient to show that the notes were stamped with the approval of. the said officer.
    APPEAL from the Eighth Judicial District 'Court, parish of St. Landry. G. W. Hudspeth, acting judge.

      Joseph M. Moore, for plaintiffs and appellees. Lewis <& Brother, for defendant and appellant.
   Ludeling, C. J.

This is an action on several promissory notes. There was judgment for plaintiffs, and the defendant has appealed.

The only question in the ease arises from the bill of exception to the reception of the notes, and it is this: that the notes, which had insufficient stamps, had been withdrawn from the suit with permission •of the court, and additional stamps had been affixed and canceled by •the collector of internal revenue, without having first exacted the full penalty of the law for having failed to place and cancel sufficient stamps thereon. We think the court a qua did not err. When the notes were offered in evidence properly stamped, with the approval of the United States officer whose duty it was to stamp such notes, they were admissible in evidence ; and it formed no part of the duties of the State court to inquire whether or not the United States officer had done his whole duty. It was sufficient to know that the notes were stamped with the approval of the said officer. 22 An. 131.

If is therefore ordered and adjudged that the judgment of the lower court be affirmed, with costs of appeal.


author: Taliaferro, J.

text:
    No. 766.
    Edgar Mouton v. Zenon Broussard.
    Where, on the verdict of the jury being rendered, the defendant moved for a new trial, which was refused, and an appeal was then asked for and • granted, and the appeal bond filed, áll prior to the date of the judgment as entered on the minutes of the court, in consequenoe of -whieh amotion was made to dismiss the appeal on the ground that it was premature, having been applied for and granted before the judgment was rendered, and that the bond is defective and without force, because it was given before the judgment was rendered;
    Held — That the judge a quo having entertained the motion for a new trial and refused to grant it, the defendant may well have considered that the verdict of the jury was adopted as the judgment of the court as of that date. A new trial having been refused, •there remained nothing further for the court to do but render a judgment pursuant thereto, and under the mode of procedure in the country, the appeal may be considered as taken nunc pro tunc.

    The granting of the appeal at the time was an irregularity that does not authorize the dismissal of it.
    Where the plaintiff had been allowed to explain by parol the circumstances attending the seizure of which he complains, it was competent for the defendant to produce rebutting evidence in relation to the facts -connected with the seizure, which did not tend to contradict, vary, or alter his written return on the order.
    APPEAL from the Sixteenth Judicial District Court, parish of Lafayette. Mouton, 3. Jury trial.

      Felix Yoorhies, Ed. Eugene Mouton, E. Simon, and J. E. Mouton, for plaintiff and appellee. DeBlcmc & Four-net, for defendant and appellant.
   Taliaferro, J.

A motion is made to dismiss this appeal on the grounds that the appeal is premature, having been applied for and granted beiore the judgment was rendered, and that the bond is defective and without force because it was given before the judgment was rendered.

The case was tried before a jury, and when the verdict was rendered the defendant moved for a new trial which was refused. An appeal was then asked for and granted, and the appeal bond filed— all prior to the date of the judgment as entered on the ininutes of the court.

The judge having entertained the motion for a new trial and refused to grant it, the defendant may well have considered that the verdict of the jury was adopted as the judgment of the court as of that date. A new trial having been denied, there remained nothing further for the court to do but to render a judgment pursuant thereto, and under the mode of procedure in the country, the appeal may be considered as taken nunc pro tunc. 12 An. 289, 596; 15 An. 521; 23 An. 704. The granting of the appeal at the time was an irregularity that does not authorize the dismissal of it.

. The motion is overruled.

The plaintiff alleges that the defendant caused him damages to the amount of fifteen hundred dollars by illegally seizing, under execution

On the Merits. issued against other parties, the plaintiff’s growing crop of the year-1871, by which illegal act he was compelled to abandon his cultivation and suffer the loss of his crop, being about eight arpents and a half of cane and about seven and a half arpents of corn. The answer is a. general denial. The case was tried before a jury, and a verdict rendered in favor of the plaintiff for the amount claimed. The defendant has appealed. The facts of the case seem to be that the defendant, a mortgage creditor for a large amount, of Adelina Broussard and Sevigne Broussard, proceeded via exeoutiva to seize and cause to be advertised for sale a plantation belonging to his debtors “ with all their right, title, interest and demand in the sugar, cotton and corn crops on said plantation.” The plaintiff, it seems, was lessee of park of the plantation seized, and was cultivating the leased portion wherti the seizure was made, the other portion being in cultivation by the owners.

The controversy turns upon the single question whether the plaintiff’s crop growing upon the mortgaged premises was embraced by the-seizure. The plaintiff and Adelina Broussard say in their testimony that when the deputy sheriff made the seizure he was informed that the plaintiff had his crop on the land, and that inquiry was made of him if the whole crop on the plantation was seized, to which he replied, that it was none of the plaintiff’s business, and that if he had:, any right to the ci op seized, he had to go to St. Martinsville, and there-make his claim. The sheriff’s return on the order of seizure recites-clearly that with the land, “ all the right, title, etc., or Adelina Broussard and Sevigne Broussard in the sugar, cotton and corn crops on said plantation ” were seized.

The deputy sheriff was introduced by the defendant as a witness to-prove the manner in which he made the seizure. Objection was made-on the ground that his parol statement was not the best evidence the case admitted of, and that his testimony was inadmissible to contradict, vary, or explain the terms of a written instrument, etc. The objection was overruled and a bill of exceptions reserved. We think the reasons of the judge for admitting the evidence are satisfactory. The plaintiff had been allowed to explain by parol the circumstances-attending the seizure, it was competent for the defendant to produce rebutting evidence in relation to the facts connected with the seizure,, which do not tend to contradict, vary, or alter his written return on the order. His testimony is that he did not seize the defendant’s crop, and that he so informed Adelina and Sevigne Broussard at the time; that his instructions to the keeper he left in charge of the plantation, were positive that they should not in any manner impede or trouble the lessees in their work on their crop in' the plantation.

No interference was made with the Broussards in their cultivation. and they continued to work their crop. The instructions given to the sheriff by the attorney of the seizing creditor were to seize only the debtor’s property and their interest in the crop. He seized the property pointed out by the debtor and mentioned in the notice of seizure. The plaintiff fails entirely to show that he was in any manner interfered with in the cultivation of his crop. His abandonment of his crop seems to have been an act entirely uncalled for, and in no manner caused by any act of the defendant.

We think the decree of the lower court erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed.

It is further ordered, that there be judgment in favor of the defendant, the plaintiff and appellee paying costs in both courts.


text:
    No. 769.
    Bodet & Gueydan Brothers v. Jules Nibourel.
    Where the amount of the attachment bond is less than one-half over and above the amount of the debt alleged to be owing, by less 'ban one dollar, such a deficiency will not be noticed by this court. De minimis non curat lex.

    APPEAL from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.

      B. S. Perry, for plaintiffs and appellants.

      F. B. King, for defendant and appellee.
   Taliaferro, J.

The plaintiffs’ action in this case is founded upon attachment. They claim that the defendant owes them $1706, with interest, and, under their writ of attachment, caused to be seized a stock of merchandise.

The defendant moved to set aside the attachment on the folio wing-grounds:

First — That the attachment bond is insufficient in amount, and not such as the law requires.

Second — That the affidavit‘is insufficient, and does not meet the requirements of law.

The motion to dismiss was sustained and the suit dismissed.

We think there is error in the judgment. The amount of the bond, it seems, is less than one-half over and above the amount of the debt, alleged to be owing, by less than one dollar. De minimis non curat lex.

The affidavit we think sufficiently explicit, and that it authorized the issuing of the attachment.

It is therefore ordered, that the judgment of the district court be annulled and reversed. It is further ordered, that the case be remanded to the court a qua, for further proceedings.according to law, the defendant and'appellee paying costs of this appeal.


author:
Ludeling, C. J.
      Wyly, J.,

text:
    790.
    Marie E. L. J. Frere, Wife and others, v. Corinne Perret, Wife and others.
    Where defendant contended that the terms “will convert" instead of “ is about to convert" her property into money, is too vague and indefinite to authorize the attachment against her;
    Held — That the allegations and aflidavit in this case substantially comply with the law and justified the attachment.
    The essential part of the law is not that, the debtor is about to convert her property into money, for there is no wrong in that, but that she will do so, “ with the intent to place it boyond the reach other creditors."
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      F. Gates, for plaintiffs and appellants. Tucker, Davis <& Simon, for defendants and appellees.
   Ludeling, C. J.

The plaintiff sued out an attachment against the defendant under the provisions of the act of 1868, creating additional grounds for attachments. Revised Statutes, section 109. The attachment was dissolved on motion, on the ground that the allegations of the petition were insufficient. The allegations are, that “ the 'defendant had already disposed of and assigned the notes attached, by pledging them for advances, and that she will further assign said notes and convert them into money with the intent to place them beyond the reach of the petitioner, who is creditor.” The statute provides that when a party “ has converted, or is about to converc his property into money or evidences of debt, with intent to place it beyond ti.e reach of his creditors ” they may attach the property. The counsel for defendant contends that the terms “ will convert,” instead of “ is about to convert” her property, is too vague and indefinite to authorize the attachment; that it refers to the indefinite future, whereas the terms ' of the law refers to the immediate future.

We deem it unimportant to consider particularly the philological differences between the terms of the law and those of the petition. The Civil Code directs that “ the words of the law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules, as to the general and popular use of the words.” Article 14. The essential part of. the law is not that the debtor is about to convert her property into money — for there is no wrong in that — but that she will do so, with the intent to place it beyond the reach of her creditors.” We think the allegations and affidavit in this case substantially comply with the law and justified.the attachment.

It is, therefore, ordered that the judgment of the.lower court be set aside, that the exception be overruled, and that the cause be remanded to be proceeded with according to law. It is further ordered that the appellee pay costs of appeal.

Wyly, J.,

dissenting. As the affidavit is merely that the averments of the petition are true, that instrument must he examined to see whether the plaintiff has shown sufficient grounds for the attachment.

The petition alleges that the plaintiff is a creditor of the defendant for $4711 90 ; that the defendant, Corinne Perret, in execution of her judgment against her husband, seized and sold half of a sugar plantation, and that plaintiff became the purchaser for $13,000; “that said Mrs. Corinne Perret, having pledged her said judgment as collateral to secure the advances made, and to be made by the house of Beraud, Gilbert & Co., your petitioner could not safely pay the price bid, but arranged it with the said Mrs. Perret to pay a certain amount cash, say $2000, and furnish for the balance her mortgage notes bearing on the property so purchased by her, the said notes to be placed in the hands of Beraud, Gilbert & Co., as a substitute for the judgment pledged, said judgment to be returned with the pledge thereof canceled and transferred to your petitioner — the writ of fi. fa. thereupon to be returned satisfied. All of which was done as above set forth.

Your petitioner alleges that Mrs. Corinne Perret, wife, etc., has no other property in her own right, of which your petitioner has any knowledge, except the two notes thus given by her; and further, that she has already disposed of and assigned, by pledging said notes to said Beraud, Gilbert & Co., of New Orleans, and that upon said pledge she has obtained advances of money and supplies, for which said notes are liable in the hands of the pledgees, and that she will further assign said notes and convert them into money for the purpose of placing them beyond the reach of your petitioner, who is a creditor.”

I see nothing in these averments to justify the attachment, which was granted. By plaintiff’s own judicial confession the pledging of the notes was arranged by herself. It was evidently to her advantage to make the arrangement which resulted in pledging these notes to Beraud, Gilbert & Co., because by it, instead of paying $13,000 cash on her bid, she only paid $2000, and gave her notes for the balance of the price.

How the plaintiff arranging, advising, and benefiting by the pledge to Beraud, Gilbert & Co., can now turn around and set up that as a valid ground to issue an attachment against the defendant, I can not imagine. The plaintiff, consenting to the pledge of the notes for supplies furnished, and to be furnished, by Beraud, Gilbert & Co., has no right to complain on account thereof, so therefore, the statement of the fact that the defendant has already “assigned by pledging” adds nothing to the clause “that she will further assign said notes and convert them into money for the purpose of placing them beyond the reach of your petitioner, who is a creditor.”

The statement of a fraudulent disposition of part of the property already made would add great weight to the averment of a creditor that he believed there would be a “further assignment” of property for the purpose of placing it beyond his reach. But where there has been no fraudulent “assignment” ‘he bare averment “that she will further assign said notes and convert them into money,” etc., is not sufficient in my opinion to authorize the writ of attachment.

It has repeatedly been held that the remedy of attachment is a harsh one; and the party seeking it must place himself strictly within the requirements of the law. The statute requires an affidavit that the debtor “has converted, or is about to convert, his property into money, or evidences of debt witli intent to place it beyond the reach of his creditors.”

In the petition it is not shown that the defendant has “converted or is about to convert,” her property, etc.

There is a marked difference between the averment that the defendant “ will convert,” and the statement that she is “about to convert.” Under the law an attachment will lie if the affidavit shows that the debtor is “ about to leave the State permanently,” but the averment simply that “ he will leave the State,” etc., does not meet the requirement of the law, aud 1 apprehend this will not be disputed by any one.

It is true the language of the law is not sacramental, nor is the niceties of grammar material, but words of like import must be used. The wnrd “ about” is not meaningless, it indicates the time the contempla led fraud will be perpetrated. A creditor might not be able to swear that his debtor is about to leave the State permanently, while he could safely state that he will leave the State permanently. If the debtor contemplated leaving in six or twelve months, the latter statement could not well be considered false, but not so with the former. The statute requires.not only the averment that a fraudulent assignment will be made, but also some indication of the time of making it; that it is about to be made, or that it will immediately be made.

While a debtor is planting his crop, his creditor might have the best reason to believe that when it is gathered (six months hence) he will fraudulently dispose of it.

He might truthfully swear that he will fraudulently dispose of it, (meaning when gathered,) yet he could not swear that he is about to dispose of it.

A liberal construction placed on the law, might possibly justify the conclusion that “ will dispose of” means “ is about to dispose of,” but no liberal construction can be placed on the law of attachment, according to the repeated decisions of this court. Such a law must be construed strictly.

A strict construction of the law, in my opinion, will not justify the ■conclusion that “ will assign ” means or is equivelent to the words “is ■about to assigu,” etc.

For the foregoing reasons I feel bound to dissent from the opinion of the majority of the court.


author: Howell, J. Ludeling, C. J. Wrxr, J.,

text:
    No. 795.
    Alcee Dupre v. J. M. Thompson, Sheriff, et al. Peter Marcy, Intervenor.
    "Where plaintiff whose property, as he claimed, was seized by virtue of a judgment in the suit of Marcy v. McKinney, injoined said execution and excepted to the right of defendants and intervenor to thus attach his title collaterally, hut averred that they must do so by a direct revocatory action contradictorily with all the parties to the tax sales at which he acquired the property, and further excepted that they had neither alleged nor-suffered any injury by said sales;
    Held — That the court a, qua erred in maintaining the exceptions of plaintiff to the right of the intervenor and defendants to contest the validity of the tax sales under which plaintiff holds.
    The intervenor was the holder of notes secured by a mortgage importing a confession of judgment and containing the pact de non cdiencmdo, which authorized him to pursue the mortgaged property in the hands of the third possessor, and the latter, when he injoined him in so doing, assumed the burden of showing that the sale at which he acquired the mortgaged property divested the rights of the mortgagee thereon.
    APPEAL from the Eighth Judicial District Court, parish of St. J.

      L. for and

      Martel and Hudspeth ior defendants and appellants.
   Howell, J.

The plaintiff, as owner, injoined the Sheriff and his deputy from executing a judgment in the suit of P. Marcy v. K. W. McKinney, on a certain plantation, and from demolishing or removing the houses, fences and cisterns therefrom.

The defendants pleaded a general denial, but admitted the attempt to dispossess the plaintiff' by executing, in their official capacity, a writ of fieri facias in the cause of Peter Marcy v. K. W. McKinney, and •in an amended answer they aver that all the formalities were observed ■and notices given in the execution of the said judgment, that plaintiff, .asserting a claim to the mortgaged property, was notified as third possessor and the execution proceeded with, the sale under which he ■claims being void on its face, and McKinney remaining iu possession.

Peter Marcy intervened to defend the suit, alleging that he has a .judgment against the said McKinney recognizing a mortgage on the property in controversy, on which he caused an alias fi. fa., to issue; -that plaintiff, claiming to be the owner, has injoined the same without -making intervenor a party ; that plaintiff has no title to said property, his pretended title being derived from two tax sales, made without .•observing any of the formalities of law and in collusion between him. and McKinney to defraud creditors, and specially plaintiff; that after the said tax sales, intervenor, learning that McKinney, in order to defraud! him, had obligated himself to plaintiff not to redeem the said property, did, within the legal delay, offer and tender to plaintiff the amount of the purchase price, principal and interest, costs and penalty, which was refused on the ground that the land could be redeemed only by McKinney; and that, before proceeding with the execution, the notices and demands necessary in hypothecary actions were made and given and he prayed that the title of plain tiff be declared null, the injunction be dissolved, and plaintiff condemned to pay damages for retaining said property in possession. In an amended petition he avers further that he was joined by said McKinney in the offer to redeem the said land, which offer, within the legal delay, defeated plaintiff’s title, which was-affected by a resolutory condition ; that plaintiff never had possession of the land which remained in McKinney; and he prays that the injunction be dissolved and the sheriff ordered to proceed according to» law with the execution.

Plaintiff excepted to the right of intervenor and defendants to thus attack his title collaterally but averred that they must do so by a direct revocatory action contradictorily with all the paities to the said tax. sales, and further that they have neither alleged nor suffered any injury by the said sales, as at their dates the said property was affected with a special mortgage, superior to that of intervenor’s, in an amount double the value of the property.

It seems that those exceptions were tried at the same time as the merits, and were maintained, and theintervenor and defendants were not permitted to introduce any evidence on the subject; and upon the trial on the other issues judgment was rendered in favor of plaintiff against the defendants and intervenor perpetuating the injunction, from which the latter have appealed.

We are of opinion that the court erred in maintaining the exceptions. The intervenor was the holder of notes secured by a mortgage importing a confession of judgment and containing the pact de non aKenand,o■ which authorized him to pursue the mortgaged property in the hands of a third possessor or owner, and when the latter injoined him in so doing-he assumed the burden of showing that the sale at which he acquired the mortgaged property divested the rights of the mortgagee thereon, and by the jurisprudence of this State, one relying on a tax sale, made-prior to the present constitution, must show the existence and legality of the assessment, which stands in such case in lieu of the judgment in ordinary judicial sales; the deed of the tax collector will not be-sufficient to establish his title. 6 N. S. 348;. 7 L. 50; 10 L. 283; 4 An. 248; 14 An. 209. In a tax sale, every formality of law must be strictly complied with under penalty of nullity,, and the; only question here is. whether the observance of these formalities can be inquired into in this-form of proceeding, or muse the mortgagee, in whose favor there is a-pact de non alienamdo, resort to a direct revocatory action, As said above, we can perceive no good reason for requiring a resort to a direct revocatory action. The State can not be made a party, and as to the-tax defaulter, the purchasers may be viewed as representing him in relation to the forms of proceeding. If the formalities have been observed, the title is good without reference to the charge of subsequent collusion, and if not observed, the title is not good, whether there was collusion or not. We must conclude that the regularity and validity of the tax sale, in this particular instance, may be raised by the plaintiff in the execution, and for this purpose it becomes necessary to remand the cause. It is unnecessary in this view of the case to pass on the bills of exception in the record.

It is therefore ordered that the judgment appealed from be reversed,, that the exceptions of plaintiff to the right of the intervenor and defendants to contest the validity of the tax sale under which plaintiff holds, be overruled, and that this cause be remanded with instructions to the lower court to hear evidence on the subject, and otherwise to-proceed according to law.

Plaintiff to pay costs of appeal.

Ludeling, C. J.

I concur in the opinion of Mr. Justice Howell. The mortgagee held a conventional mortgage with the pact de non alienando ” on the property in controversy.

That clause gave the right to seize the property, into whosoever’s-hands it passed.

When he exercised this right, he was injoined by the plaintiff, who alleged he was the owner of the property. This did not authorize the injunction. It is contended that, because the plaintiff in injunction bought at a tax sale, the mortgage was destroyed. That is the very question for decision. And I can not discover any good reason for-refusing- to permit that question to be determined in this case.

Wrxr, J.,

dissenting. The question is, can the title of the purchaser-at tax sale be attacked collaterally by a judgment creditor of the-former owner, which judgment is based upon a debt secured by mortgage with the pact de non alienando ?

The sale before us is presumed to be valid, because the officers of the State are presumed to have done their duty in assessing the taxes- and in alienating the property to enforce the collection thereof.

If the formalities of law have been observed (which we are bound to presume) this sale freed the property of the mortgage now sought to be enforced aginst it, because the debt for which it was sold is of higher rank than the mortgage. The privilege for taxes is superior to any mortgage granted by the former owner. No one can encumber his property so as to defeat the right of the State to enforce the collection of its revenues.

It is well settled that a sale enforcing a superior mortgage or privilege relieves the property from subordinate incumbrances. A junior mortgage creditor, finding that the property has been sold under a superior mortgage, and believing that the formalities of law were not observed in the foreclosure of the prior mortgage, can not attack the sale collaterally, by seizing the property under his own judgment. He must bring a direct action.

The fact that his mortgage contains the non alienation clause is of no consequence. If the sale under the prior mortgage was formal and the proceedings regular, it wiped out the junior mortgage. It relieved the • property entirely of it. The non alienation clause, of course, falls with the mortgage.

The sale under a prior mortgage, unless affected with an absolute nullity, can not be disregarded by a junior mortgage creditor, whether his mortgage contains the pact de non alienando or not. For relative nullities it must be attacked in a direct action.

Here the plaintiff is in possession under a recorded title ostensibly valid, and the sale at which he bought was to enforce a debt superior in rank to that of the attacking mortgage creditor.

Until that sale is set aside in a revocatory action, contradictorily with all parties in interest, in my opinion, the mortgage creditor can not proceed to enforce his mortgage; because whether he has a mortgage or not still existing on the property, depends upon the result of the inquiry whether the sale to enforce the superior debt was formal and valid Until this result is ascertained, in a proper proceeding, the formalities necessary in a tax sale are presumed to have been observed by the officers of the State; and the sale to the plaintiff is presumed to be valid.

It is only simulated sales that may be disregarded; actual contracts, though in fraud of creditors, must be attacked in a direct action.

In my opinion Peter Marcy, the mortgage creditor, has mistaken his remedy. He had no right to seize the property and treat the title of .the plaintiff as an absolute nullity.

In this proceeding, which is an injunction suit, he can not assail the .title of the plaintiff and have its nullity pronounced, because neither the tax collector nor McKinney, the debtor for the taxes, are made parties. I have never heard of a sale being annulled by a court in the Absence of the parties thereof.

The plaintiff, the purchaser, is the only party to the sale who is 'before the court, yet it is gravely insisted that it is proper for the •court to pronounce the nullity of the sale and thereby destroy the contract, condemning parties without a hearing.

A tax sale is a lawful sale and like every other forced alienation, it is liable to be avoided for relative nullities. But I have yet to learn that the form of proceeding to ascertain these relative nullities is different in a tax sale from that in a judicial sale. Both kinds of sale are made upon the faith of the State. They are not snares laid to entrap honest bidders. The title given by the State, like that acquired at a judicial sale, is presumed to be valid, until the contrary is shown in a legal manner.

A title derived at such sale forms no exception to the universal rule that actual sales can only be annulled in a direct action contradictorily with all the parties thereto.

For the reasons stated I deem it my duty to dissent in this case.

See 23 An. 44, 331; 13 An. 155; 14 An. 560; 17 L. 517; 6 E. 21; 6 E. 152; 14 An. 495; 4 An.439 ; 3 L. 476; 1 An, 297 ; 6 L. 268; 9 L. 542 ; 4 L. 473 ; 8 L. 423; 1 L. 491; 11 L. 438.


author: Morgan, J.

text:
    No. 800.
    Elbert Gantt v. Eaton & Barstow.
    A prayer in this Court by a defendant, in answer to an appeal taken by his codefendant, that the judgment of the district court be reversed, and the case be remanded for a new trial, is not an appeal, which must be applied for and granted in the court a qua. Here is, in fact, a co-appellee, not a codefendant, and between appellees a judgment is not to be disturbed.
    The jurisdiction of the court of the parish where property is sought to be made liable in an hypothecary action, can not be questioned.
    Where a judgment was rendered for more than the petition claimed, the remittitur should have been entered before the judgment .was signed, and should have appeared in the transcript.
    There is no reason why the purchasers of property should not legally bind themselves m solido for the payment of the price; if the act of sale does not stipulate solidarity, and the notes do, this is sufficient. Parties may bind themselves as they see fit, and, as they bind themselves, so must they be held.
    The plea that an agent had no right to stipulate the solidarity of the obligation sued on, is a matter of special defense, which should have been set up in defendant’s answer. It can not be urged in error to a judgment rendered and confirmed by default.
    Where the act of sale, which was offered in evidence, contained the recital of a power of attorney, and the power was not denied, the act was sufficient to prove what it related.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. King, J.

      JB. A. Martel & Hudspeth, for plaintiff and ■appellee. Albert Voorhies and Henry L. Garlamd, for defendants.
   Morgan, J.

Plaintiff sold to Eaton & Barstow, commercial co-partners residing in the city of New Orleans, a certain plantation, situate in tlie parish of St. Landry. The consider,ition of the sale was part cash and part in promissory notes. In so far as Eaton was concerned the purchase was made by Barstow under a power of attorney. The notes given were made in solido by the makers. Since the sale Barstow has been living in St. Landry; Eaton lives in New Orleans.

This suit was instituted in January, 1872. Its object is to recover from the defendants,- in solido, the amount of one of the notes for $10,000, which formed a part of the purchase price, less some payments thereon, which the petition admits have been made; to cause his mortgage and vendor’s privilege on the land sold, and which was in possession of the defendants at the time the suit was instituted, to be recognized, and asking that the same be sold to satisfy his debt.

Barstow was served personally in the parish of St. Landry. Eaton was served by leaving a copy of the petition and citation at his domicile in the city of New Orleans. Neither party filed answers. Default was entered against them. The default was confirmed and made final, and a judgment rendered against them in solido for $10,000, with interest at eight per cent, from first January, 1870, less the following credits : $800 interest paid first January, 1871; $3000 paid February 6, 1871; $2000 paid twenty-fourth February, 1871, and $500 paid: March 18, 1871. He was also decreed to have a special mortgage and vendor’s lien on the property sold, and it was ordered that the property be seized and sold according to law, for an amount, in cash, sufficient to pay the mortgage note sued on, with costs, and all mortgage notes then due and unpaid, and bearing upon the property, and on a term of credit to correspond with the installments of the purchase price yet to fall due, to wit: $10,000 due January 1, 1873.

From this judgment Eaton appealed. He made Barstow a party to the appeal, who, in his turn, in this court, prays that the judgment be reversed. As regards him, we can not interfere. He has not appealed, and we have no authority to question a judgment rendered against him of which he does not complain. It is true, as above stated, that in this court, in answer to the appeal taken by his codefendant, he prays that the judgment of the district court be reversed and the case remanded for a new trial, but this is not an appeal which must be applied for and granted by the district judge. In fact, he is a co-appellee, and between appellees, the judgment is not to be disturbed.

Eaton contends that the judgment must be reversed as to him,, because he is a resident of the parish of Orleans, and the District, Court of the parish of St. Landry was without jurisdiction over him. He relies upon article 162 C. P.; 21 An. 258; 23 An. 255.

In our opinion the case is governed by article 163 C. P.; 2 N. S, 374; 4 L. 240; 3 An. 637; 15 An. 346. And it can not be distinguished! ■from the case of Generes v. Simon, 21 An. 653, which followed the decisions above quoted, all of which maintained the jurisdiction of the court of a parish where the property was sought to be made liable in a hypothecary action.

He contends that the judgment under appeal has none of the characteristics of a real or hypothecary action; that it is strictly in personam, recognizing the existence of the mortgage, and to support the proposition, that, under such circumstances, the defendant must be sued at his domicile, he refers to several authorities. We do not contest the correctness of the decisions referred to. But we think the learned counsel for the appellant is mistaken in his conclusion that the judgment in question has none of the characteristics of an hypothecary action. The prayer of the petition, in terms is, that the property described be declared subject to the mortgage, and that it be sold to •satisfy the same.

His second objection is that the judgment was rendered for more than the petition claimed. It seems to be conceded that credit was not given in the judgment of $2000 paid on the note of the fifteenth February, 1871, and in this the appellant has cause to complain. The appellee contends that he has entered a remittitur for this amount. But this does not appear in the transcript of appeal, and although it appears by a document attached to appellee’s answer to the appeal, to have been filed in the Recorder’s office, this is not sufficient; we can not notice it. The remittitur should have been entered before the judgment was signed, and should have appeared in the transcript. This, however, is no ground, for the reversal of the judgment. It is a good ground upon which to reduce it.

He next contends that the suit was prematurely brought, before the compliance on the part of the plaintiff with his stipulations in the act of sale as to the last installment of $10,000. The act provides that the note shall not be due and payable until Gantt shall have made a satisfactory title to a certain portion of the property sold by him to the defendants, and which he had purchased at sheriff’s sale, in the suit of Bentley v. McCamet, and the mortgage resulting from the judgment of Garland v. King and Gantt should have been removed. There was error in that portion of the judgment which ordered the property to be sold on a term of credit to meet this payment. The amount was not due, and might never become due. But this defect in the judgment may be corrected here.

It is further contended that the property having been purchased for planting purposes, the partnership was an ordinary one, and that the defendants are bound jointly, and not in solido.

Real estate purchased by commercial partners, does not make the partners commercial partners with reference to the estate purchased; they are ordinary partners. But while the partnership may be an ordinary one, the obligations of the partners with reference to the purchase-of the estate may be solidary. Parties may bind themselves as they see fit, and as they bind themselves so must they be held. We see no reason why the purchasers of property can not bind themselves in solido for the payment of the price. He contends that the act of sale does not stipulate solidarity. But the notes do, and this is sufficient. He contends further that Barstow had no right, as agent of John Eaton,, to stipulate the solidarity of his obligation. This was a matter of special defense which he should have set up in answer to the demand-which was made upon him. It can not be urged as error to a judgment rendered and confined by default. Neither was it necessary, as is contended, that he should have introduced the power of attorney from. Eaton to Barstow under which the plantation was purchased. The act of sale, which was offered in evidence, contained the recital of the power of attorney, and as the power was not denied, the act was sufficient to prove what it related.

The last ground urged for a reversal of the judgment is that the-plaintiff failed to produce the last note of $10,000, which he alleges, he had in his possession, and on which the judgment ordered the sale-of the property. The answer to this objection is, we think, that suit' was not instituted on this note, and that the property is not ordered to be sold to pay it.

It is therefore ordered, adjudged and decreed that the judgment of the District Court as to the defendant Barstow be affirmed. It is further ordered that as to the defendant Eaton it be amended by. reducing the judgment on ttie note sued on two thousand dollars in. addition to the sums already credited thereon; and that as to that part of the judgment which decrees the sale of the property to be made on. a credit, in order to meet the payment of the last note of $10,000, forming-part of the purchase price, that it be amended so as to make it correspond with the terms of the sale, to wit: until the plaintiff shall have made a satisfactory title to the sixty-eight acres of land purchased by him at sheriff’s sale, in the suit of Bentley v. McCamet, and the mortgage resulting from the judgment of Garland v. King and Gantt shall have been removed.

It is further ordered that as between the plaintiff and appellee and. Eaton, the costs be borne by the appellee.


text:
    No. 805.
    George W. Banker v. Charles Durand, Jr., et al.
    The plea of prescription, filed by the administrator, can not extend its benefits to the heirs of age and the widow. As to the succession and the minors, it does — their interest being-in the succession, and the succession being represented by the administrator, whose duty it is to interpose any legal defense in his power to a suit in which the succession, he represents is interested.
    "Where the heirs neither expressly nor tacitly have accepted unconditionally the succession-of their ancestor, but where, on the contrary, on their being sued, they expressly circumscribed their liability, as they had a right to do, to the value of their ancestor’s estate, a judgment which, under such circumstances, condemns them personally is erroneous.
    In the laws of the United States or proclamations of the President prohibiting, during the late war, any intercourse and trade between persons residing within the Federal and Confederate lines, there is nothing which could prevent a French citizen from acknowledging* a debt and agreeing to pay it, and mortgaging his property to secure its payment.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      Edward Simon, for plaintiff and appellee. J. E. Mouton and Z. E. Eournet, for defendants and appellants.
   Morgan, J.

Charles Durand, a Prendí citizen, died in the parish of St. Martin on the twenty-sixth November, 1870. He left a widow and several children, of whom several were minors and some majors, and one was an absentee. The widow notified the probate court of the parish of St. Martin of her husband’s death, and prayed to be allowed to qualify as natural tutrix to her minor children, and asked for the appointment of an under tutor. Her petition was granted, and an inventory was ordered to be taken of the succession of her husband. Both tutrix and the under tutrix took the oath required by law on the thirty-first December, 1870. The inventory was taken on the twentieth December, 1870. Among the property of the deceased., mentioned in the inventory, was a plantation situate in the parish of St. Martin.

Banker, the plaintiff, a resident of the parish of Orleans, instituted proceedings via execiUiva against the above mentioned property on the thirty-first December, 1870, claiming to be the owner of two promissory notes, drawn by Durand to his own order and by jrini indorsed, each for the sum of $7500, dated New Orleans, third May, 1862, and payable respectively on the third July, 1863, and on the first May, 1864, with interest at eight per cent, per annum from maturity till paid, to secure the payment of which, together with counsel’s fees at the rate of five per cent., he mortgaged the property referred to. He prayed for an order of seizure and sale against the property for the amount alleged to be due on said note at the time the suit was instituted. He cited the heirs of age residing in the State personally, the one residing abroad through a curator, and the minors through their tutrix.

Subsequently, to wit: on the thirteenth March, 1871, he changed his proceedings from the via exeoutiva to the via ordinaria, and the same parties were again proceeded against, as widow, tutrix and heirs, and again cited in the manner prescribed by law. The widow and tutrix filed a general denial. The heirs of age denied any indebtedness, and further denied that they could be made responsible for their ancestor’s ■debts, whose succession they, in their answer, accepted only with benefit of inventory. This answer was filed on thirteenth April, 1871.

Subsequent to these proceedings, an administrator was appointed to ■the succession of Durand. He appeared in the suit, and pleaded the prescription of five years. The other defendants do not make the plea. As regards the heirs of age and the widow, the plea can not extend its benefits to them. As to the succession and the minors, it does, their interest being in the succession, and the succession being represented by an administrator — for it will be observed that the. widow did not ■ask to administer the succession of her deceased husband as natural tutrix to her minor children; she merely asked to be confirmed as their natural tutrix, and; as tutrix, to cause an inventory of the prop■erty left by her deceased husband to be taken. The administrator was qualified only a short time before the plea of prescription was filed; and, in his brief, counsel for appellee doubts “ that an administrator, made so only two days before the judgment was signed, not ■a party therefore to the suit, without interest in the suit, can be allowed to come in by appeal to urge such defense.” We think differently. The administrator could make no appearance until he was duly qualified, and, when qualified, it was his duty to interpose any ■defense to a suit in which the succession he represented was submitted, which the law placed in his hands ; and as, by the law, he could have ■filed the plea in this Court at any time before the case was instituted, we do not see how he could have been deprived of the right of filing the plea before any judgment had been rendered in the court of the first instance, even if his right to do so had been contested, which we ■do not find from the record was done.

As we have heretofore seen, the notes sued on fell due respectively ■on the first July, 1863, and first May, 1864. On one of the notes, a payment is alleged to have been made on the twentieth November, 1865 ; on the second, a payment is alleged to have been made on the twenty-sixth March, 1869. The demand is for the balance due on the notes.

In our opinion the letter of Durand of the seventeenth December, 1866, to North, Duthil & Co., and his letter to G-. W. Banker, Jr., of twenty-fourth December, 1867, are acknowledgments of the debt, and take the case out of prescription. In the first letter, after expressing his disappointment at the result of his crop, he says: “Done je me trouve dans l’impossibilité de payer cette année les $7500 que je dois ¡i M. Duthil J’ai sujet d’espérer que je serai plus heureux dans le produit de ma réoolte prochaine. Ainsi, mes chers Messieurs, je vous prie de m’accorder un an, en vous payant les intéréts & l’échéance de ■cette dette. Avec l’espoir que vous adhérez á ma demande, et confiant dans les bonnes dispositions d’anciens amis, Duthil, je suis,” etc. This was an acknowledgment of the debt, a confession of his inability to pay, the expression of a hope that he would be able to pay the following year, a promise to pay the interest, and a request for indulgence.

The same may be said with regard to his letter to Messrs. Q-. W. Banker & Co. of the twenty-sixth December, 1867. He says: Yotre lettre du seiziéme courant, m’est parvenue bier, par laquelle vous me ■demandez les paiements de mes billets $7500. Je n’ai, comme tout ■notre pays, fait aucun revenu cette annóe par rapport á l’inondation pour une partie des mes Cannes, et le ravage des chenilles dans mon cotton. II faut que je sois ici par le premier de Janvier prochain, pour régler avec mes affranchis, et renouveler leurs contrats pour la prochaine année, la quelle doit me produire audessus de trois cents boucauds de sucre. * * * * Aussitót ces tribulations terminóos,

je descendrai en ville, ce qui arrivera dans les premiers jours de .Janvier prochain; et la je ferai tout mon possible pour répondre a votre demande.”

It is contended that, in the first letter, mention is made of a debt due to Duthil, and it is suggested that it is not the debt due to Duthil which is sought to be enforced. But this is explained by the testimony, received without objection, by which it appears that the notes, sued on originally, belonged to Dupasseur; that they were, by him, transferred to North, Duthil & Co., and by them transferred to Banker.

The plea of prescription can not prevail.

The next objection is, that Mrs. Durand, when cited as tutrix of her ■minor children, had not been legally confirmed in their tutorship.

In this, there is error. The suit via execuiiva was instituted on the thirty-first December, 1870. On the same day the tutrix qualified. This was sufficient. But long after, when the proceeding was changed to the via ordinaria, she was again cited. This was done after she had taken her oath.

The next defense is that heirs, under benefit of inventory, can not ■be held responsible, personally, for the debts of a succession. To a certain extent this is true. Heirs are not responsible, beyond the amount of the property which they inherit, for the debts of their ancestor, provided they accept with the benefit of inventory. They may renounce. They may accept purely and simply; they may accept unconditionally, and this they may do at any time, unless they have done some act which precludes them; and this tacitly when they do some act which necessarily supposes their intention to accept, and which they would have no right to do but in their quality as heirs. They accept expressly when they assume the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.

In the case at bar, neither expressly nor tacitly have the heirs accepted, unconditionally, the succession of their ancestor. On the contrary, when sued, they expressly circumscribe their liability, as they had the right to do, to the value of their ancestor’s estate. The judgment, therefore, which condemns them personally, is erroneous.

The last objection is, that the contract between Durand and Dupasseur, on which plaintiff’s claim rests, was entered into in disregard of the laws and proclamations prohibiting, during the late war, any intercourse and trade between persons residing within the Federal and Confederate lines.

The debt was created on the third May, 1862, at New Orleans. The debtor, at least, was a citizen of France, and we know of no law of the United States or proclamation of the President, which, at that, or any other time, prohibited a French citizen from acknowledging a debt, and agreeing to pay it, and mortgaging his property to secure its. payment.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be so amended as to limit the liability of the heirs of Durand to the value of the estate of Charles Durand; and that, as thus amended, the judgment be affirmed ; the costs in the court below to be paid by appellants; the costs here to be paid by appellee.

Rehearing refused.


text:
    No. 802.
    Fanny E. Lemoine, Wife, v. James Powers.
    Tlic remaining portion of the unpaid price of community property acquired during marriage, is a community debt, and. this debt is secured by the vendor’s privilege. Where this privilege existed anterior to the wife’s tacit mortgage, which commenced only from the time her husband became her debtor, it can not oí course bo controlled by it.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry Thomas E. Lewis, acting judge.

      Henry L. Garland, for
    plaintiff and appellant. J. J. Morgan, for defendant and appellee. Joseph M. Moore, for warrantor.
   Morgan, J.

Plaintiff alleges that on the twenty-fifth August, 1865, her husband received $1000, and on the thirtieth August $4212 56, in all $5212 56; all of which was money belonging to her. That she obtained judgment against her husband for this sum, a great part of which remains unsatisfied.

She brings suit against the defendant, alleging that he holds property upon which she has a tacit mortgage, recorded in accordance with the requirements of the law, for the restitution of this debt due her by her husband.

During their marriage (twenty-eighth January, 1857,) plaintiff’s husband purchased a plantation from Taylor, in part payment of which he gave his promissory notes secured by mortgage and vendor’s privilege on the property sold. The notes were not paid at maturity. They were sued upon; judgment was rendered against him; the property mortgaged was sold in satisfaction thereof by the sheriff, and was purchased by Donnell; Donnell sold to Powers.

The property was acquired during marriage; it was therefore community property. The remaining portion of the unpaid price was a community debt. This debt was secured by the vendor’s privilege; this privilege existed anterior to the wife’s tacit mortgage, which commenced only from the time her husband became her debtor, - and can not be controlled by it.

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


author: Wyly, J.

text:
    No. 811.
    Elizabeth McWaters, Wife, et al. v. Arpha M. Smith, et al.
    A judgment can, of course, be enforced pending a devolutive appeal, and the reversal of the judgment in no manner impairs a sale m.adc under the execution, "but the right of the successful appe'lant is against the proceeds.
    When, on the rendition of a judgment, or immediately thereafter, an order for a devolutive appeal is obtained, the party obtaining it is not bound to give the bond immediately in order to preserve his right to said appeal.
    A devolutive appeal may be taken at any time within twelve months, and this right is in no manner affected by any disposition the judgment creditor may choose to make of his judgment.
    If a sale should take place pending a devolutive appeal, and said appeal taken within twelve months, it is considered pending from the time when the judgment was rendered.
    The judgment can not have effect on the tliiug sold, but operates on the proceeds. The plaintiff iá entitled to the amount of the difference between the proceeds of the sale of her property pending the appeal and the amount of the final judgment obtained.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      JDonelson Oaffery, for plaintiffs and appellants. F. Gates and JR. FT. JMJcMillan, for defendants and appellees.
   Wyly, J.

On third November, 1866, Mrs. Arpha M. Smith obtained judgment in the district court against the plaintiff, Mrs. McWaters, for $20,872 '32, with a recognition of a mortgage on the land described in the petition.

From this judgment a devolutive appeal was taken. This Court reversed the judgment, and remanded the case for new trial, with certain instructions. At the trial on the remandment Mrs. Smith only had judgment against Mrs. McWaters for about $4205.

In the meantime, that is to say, between the time of the rendition of the first judgment by the district court and the time of its reversal by this court, Mrs. Smith caused execution to be issued on the judgment which she had against Mrs. McWaters, and purchased thereunder the plantation hypothecated and against which the foreclosure of the mortgage was ordered, bidding therefor $21,050, which sum was credited on the execution.

Subsequently, to wit: on the tenth day of June, 1870, Mrs. Smith, by notarial act, transferred this property to her son-in-law, William W. Johnson, for $10,000, stated in the act to be cash, and $2500 on credit, evidenced by two notes executed by the purchaser.

After judgment in the district court on the remandment, wherein the claim of Mrs. Smith was reduced from $20,872 32 to $4205 32, Mrs. McWaters brought this suit to recover from her $15,055 51, the difference between the amount of her bid for the property and the amount subsequently ascertained to be due her. She also sued to annul the sale to Johnson on the grounds of simulation and fraud, claiming a vendor’s privilege on the property in controversy.

• The court dismissed the suit, and the plaintiff, Mrs. McWaters, appeals.

Of course a judgment can be enforced pending a devolutive appeal, and the reversal of the judgment in no manner impairs the sale made under the execution; but the right of the successful appellant is against the proceeds.

Therefore Mrs. McWaters may demand the proceeds of the sale of her property (beyond the amount subsequently ascertained to be due) which was sold pending her devolutive appeal. But Mrs. Smith contends that, as Mrs. McWaiers had not completed her devolutive appeal by giving bond till after the adjudication of the property to herself under her judgment, there was no appeal pending at the time of the sale; that the judgment was acquiesced in, and therefore res judicata. Consequently she is precluded from recovering the amount claimed. This is a fallacy.

When the judgment was rendered, or immediately thereafter, Mrs. McWaters obtained an order for a devolutive appeal. She was not bound to give the bond immediately, in order to preserve her right to a devolutive appeal. A devolutive appeal may be taken at any time within twelve months, and this right is in no manner affected by any disposition the judgment creditor may choose to make of his judgment.

The judgment of the Supreme Court is only such judgment as the inferior court should have rendered, and it determines the rights of the parties as they stood at the time the suit was instituted.

If a sale should take place pending a devolutive appeal, and if taken within twelve months, it is considered pending from the time the judgment was rendered, the judgment can not have effect upon the thing sold, but only on the proceeds — the plaintiff in execution will be liable to the successful appellant for the amount of the proceeds.

The plaintiff is entitled to a judgment against the defendant, Mrs. Smith, for $15,055 51, the amount of the difference between the proceeds of the sale of her property pending the appeal and the amount of the final judgment obtained by Mrs. Smith.

It is useless to inquire whether this debt is secured by a vendor’s privilege, as it would be without effect as to third parties for want of registry; and, therefore, this question may be laid out of view, until it is ascertained whether the sale of the property to Johnson by Mrs. Smith is valid.

This sale is now attacked on the grounds of simulation and fraud. An examination of the evidence satisfies us that there was neither simulation nor fraud.

It is proved that the $10,000, acknowledged in the deed as cash paid, was really the amount, in part, of a debt due the wife of William W. Johnson by Mrs. Smith; and that the latter received, in lieu of the cash, the receipt of Mrs. Johnson for said amount. For the balance of the price, Johnson executed his notes for $2500.

So far as concerned Mrs. Smith, this receipt of her creditor, tendered by Johnson, was equivalent to cash. It is just as valid as if Johiison had paid over to her in cash the $10,000 and she had returned it to him in payment of her indebtedness to the wife of Johnson, which he had the right to collect. The sale to Johnson was virtually for $10,000 cash and $2500 on credit, evidenced by his notes; and the whole transaction was undoubtedly made in good faith by all parties. We conclude, therefore, that the sale was valid, and that plaintiff must fail in this part of her demand.

It is therefore ordered that the judgment of the court a qua, dismissing plaintiff’s demand, be annulled ; and it is now ordered that plaintiff, Mrs. Mo Waters, recover judgment against the defendant* Mrs. Smith, for fifteen thousand and fifty-five dollars and fifty-one cents, with legal interest thereon from the fifth January, 1867, and all costs.

It is further ordered that the revocatory demand against William, W. Johnson be rejected, and there be judgment quieting his title»

Rehearing refused.


text:
    No. 810.
    M. T. Gordy v. P. A. Veazey.
    Where plaintiff excepted to the ruling of the court a qua which permitted the defendant to establish by witnesses the value of certain items of the work sued on by plaintiff, on the ground that plaintiff having sued for the value of the work as a whole, without setting any specific value on its separate items, and the defendant having substantially accepted in his answer the issue presented, the testimony offered was not confined to said issue;
    Held — That the exception was not well founded. The sura total of the bill sued on being composed of various items, it was competent for the defendant to show by witnesses the separate value of each of the items which made up the aggregate work in order that the correctness of the general charge might be properly arrived at.
    A. party for whom work has been done on a certain building is not barred from offering any proof of damage on account of the unskillfulness of the work because of his having taken possession of the building.
    The testimony of a witness to establish that plaintiff had, before the instituting of his suit, presented to the defendant a bill in which he charged less for his work than the amount for which he has sued, was properly received.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      Oaffery & Foster, aud L. H. Montanye, lov plaintiff and appellant. Joseph A. Breaux, for defendant and appellee.
   Morgan, J.

Plaintiff took his bill of exception to the ruling of the •court which, permitted ihe defendant to establish by witnesses the value of certain items of the work sued for by plaintiff on the ground that having sued lor the value of the work as a whole, without setting any specific value on the separate items of the work, and the defendant having substantially accepted in his answer the issue presented, the testimony offered was not confined to the issue, but was calculated to take him (plaintiff) by surprise.

If the testimony offered could have the effect of taking plaintiff by surprise, this might have been a ground for applying for a continuance, but it was no ground upon which the reception of the testimony could be successfully objected to. The sum total of the bill sued on is composed of various items. It was competent for the defendant to show, by witnesses, the separate value of each of the items which made up the aggregate work in order that the correctness of (he general charge might be properly arrived at. The testimony was, therefore, properly admitted.

The second exception to the ruling of the court is to the reception of testimony on behalf of the defendant to show damages which he claimed to have sustained on account of the unskillfulness of plaintiff’s work. The objection was that the defendant was barred from offering any proof of damage after having taken possession of the building. We do not see why the defendant should be debarred from defending himself against what he considers an extravagant demand for repairs done to his property, simply because he took possession of it. He may have been unaware of the unskillful workmanship of his employe until after he had taken possession of his property. He may have been, by necessity, forced, to take possession of his property, whether the repairs were properly done or not. The evidence was properly received.

The third exception to the ruling of the court was to his' admitting the testimony of a witness to establish that plaintiff had, before the institution of this suit, presented to the defendant a bill in which he charged less for his work than the amount for which he has sued. The ruling was correct. We do not see why a defendant who is sued for ihe value of work done on his property should not be enabled to show by the plaintiff what value he placed upon the work immediately after it was completed. Neither do we know any law or see any reason why a man who presents a bill for the value of work done should be allowed, because the bill is not paid, to sue for a larger sum than the amount originally claimed. There would be some authority for this in case the stipulation was that the work should be paid for the moment it was completed — the cash might be an inducement for a diminution of price, for he who pays later, pays less. But there seems to have been no stipulation in this regard between the parties to this suit.

The fourth exception is to the time when the judgment was signed. But this exception is not referred to in appellee’s brief, and, we pre.sume, as it has nothing to stand upon, that it is abandoned.

On the Merits.

'Plaintiff contracted to do certain work for the defendant for $650. He also contracted to do certain other work for which he was to receive no stipulated price for which he-charges $1350, making his whole bill ■ $2000. He has received $1159 25, and ho sues for the balance, $840 75.

The defense is that the work was not worth the sum charged, and ■that it was not done in a workmanlike manner.

The plaintiff and his witnesses (who were his journeymen) all swear ■that the work was done; that it was done in a workmanlike manner, .and that it was worth the price charged.

The defendant and his witnesses swear that the work was not done in a workmanlike manner, and that it is not worth the sum charged. 'They say that’ the root leaked and the work was not well done. Plaintiff says that the slates were not good, and that the lumber upon 'which they were iilaced, as well as the lumber used in other work done •by him, was green and liable to shrink, and that the leak in the roof is attributable to the shrinkage and to the breakage of the slates caused by bricks and shells having been thrown upon them.

Defendant and his witnesses say the leak was caused by the unworkmanlike manner in which the slates were put on; and that most of the umber was selected by plaintiff.

In short, as is usual in such cases, each party and his witnesses swear directly contrary to the other. Under such circumstances, it is impossible to do absolute justice between the parties. Both complain of the judgment of the district court, and both may, perhaps, suffer. But if they do, it is their own fault. Their troubles would not have been difficult to arrange had they made a contract for the whole of the work, as they did for a portion of it.

On the whole, we see no reason to distrust the judgment, in so far as relates to the value of the work. There is, however, error in the judgment, which neglects to give a privilege on the building upon which the work was done, and, in this regard, it must be amended.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be amended, and that the plaintiff be decreed to-have a privilege upon the building upon which the repairs were made for the amount of the judgment rendered in plaintiff’s favor; and that, thus amended, it be affirmed; appellees to pay the cost in both courts.


author: Taliaferro. J.

text:
    No. 814.
    Elias Lindstrum v. Elijah Ewing, Administrator.
    Where ia an action to annul a judgment obtained by defendant against tile plaintiff on a' promissory note, which judgment was affirmed on appeal to this court in 1869, it appears that the consideration of the note was the price of a slave purchased on the tenth of October, 1861, this is sufficient ground for setting aside the judgment which is sought to be annulled.
    APPEAL from the Sixteenth Judicial District Court, parish of Vermilion, Mcuton, J.

      M. B. Girard, for plaintiff and appellee. Breaux & King, for defendant and appellant.
   Taliaferro. J.

This is an action to annul a judgment obtained by defendant against the plaintiff in a suit numbered 854 of the docket of the District Court, for the parish of Vermilion. This judgment was. affirmed on appeal to this court, in September, 1869. See 21 An. 683.. The ground alleged for annulling the judgment is, that it was obtained.' and based upon a promissory note, signed by the plaintiff as surety of one Todd; the consideration of the note being the price of a slave purchased by Todd at the the probate sale of the succession of Alexander McDonald, in October, 1861. There was judgment in favor of the plaintiff, annulling the judgment in the suit numbered 854, Elijahi Ewing, administrator v. G-. W. Rool et al. The defendant appeals.. The defendant filed several peremptory exceptions in bar of the, plaintiff’s right to recover. It will be necessary to consider only two? of these—

“That the judgment sought to be annulled is res judicata and the action of nullity can not be maintained to avoid the same upon facts and allegations, which were known to plaintiff, and ought to have been pleaded before judgment.”

“That it the judgment sought to be annulled had been obtained by fraud and ill-practices, as intimated in the plaintiff’s petition, still, the action of nullity can not be maintained on that ground, because if any such fraud or ill-practice ever existed it was discovered more than one year prior to the institution of this suit, and the suit is barred by the prescription of one year.”

The record shows that the judgment sought to be annulled was rendered in April, 1866, and before the nullity of contracts founded upon slave considerations had been declared by the courts of this State.. That defense could not h ive been known to the plaintiff here when defendant in the action resulting in the judgment he now seeks to annul. The plaintiff bases his action mainly on the ground of the illegality of contracts, where the consideration was the price of slaves. The prescription of one year is not applicable. On the merits the plaintiff has fully made out his case. He shows clearly, as alleged in his petition, that he became a surety of Todd, on a note given by him for the price of a slave named Sarah, purchased by Todd, at the probate sale of the estate of Alexander McDonald, on the tenth of October, 1861. That he was sued upon that note, and that the judgment he now seeks to annul was rendered against him.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs. Wainwright v. Bridges, 19 An. 234, and many decisions subsequently rendered of the same purport.


text:
    No. 601.
    Honore Dejean, Tutor, v. Jacques Arnaud.
    Judgment was rendered in this case on the fifteenth of January, 1861, decreeing that the defendant deliver up a slave to oe sold in satisfaction of tlie plaintiffs claim, $821, with interest, or in default thereof to pay the said sum and interest.
    It is clear that there can be no recovery in this case, the plaintiff having set out by endeavoring to enforce a mortgage against a slave who has since become free. The parties called in warranty to make good the title to the slave are no longer bound.
    APPEAL from the Fifteenth Judicial District Court, parish of St.. Landry. Martel, J.

      Dupré & Garland, for plaintiff and appellee...

      Sivayze & Moore, Lewis & Porter, E. Mouton, for defendant.
   Taliaferro, J.

In April, 1859, the plaintiff in his capacity of;' tutor to the minor children of Eugene Bercier, deceased, instituted' suit against the defendant to enforce the tacit mortgage derived to the minors from their mother, against a certain slave named Valsin, then owned by and in possession of the defendant. The defendant answered by general denial averring that he purchased the slave at a sheriff’s sale made on the seventh of August, 1852, at the suit of one Joseph Gradenego against Eugene Bereier, father of the minors, herein represented by the plaintiff. He alleged that the pretended judgment of separation of property between, the father and mother of the minors, ((according to the latter a tacit mortgage), in virtue of which the plaintiff was proceeding against him, was collusive and fraudulent. He prayed that Gradenego, the seizing creditor, and Louis Lastrappe, .administrator of the estate of Eugene Bereier, deceased, the seized debtor, be called in warranty ; and he subsequently called in Yalery Meyer, alleging that he was bound in solido with Eugene Bereier in the judgment obtained against the latter by Gradenego.

The judgment rendered on the fifteenth of January, 1861, decreed ■that the defendant deliver up the slave to be sold in satisfaction of the plaintiff’s claim ($821) with interest, or in default thereof, to pay the •said sum and interest. Judgment was also rendered over in favor of the defendant against his warrantors, Yalery Meyer, and Lastroppe, ■administrator of the estate of Eugene Bereier. From this judgment Yalery Meyer alone appealed. It is clear there can be no recovery in this case. The plaintiff set out by endeavoring to enforce a mortgage ■against a slave who has since become free. The parties called in warranty to make good the title to the slave are no longer bouud.

It is therefore ordered that the judgment of the District Court be ■annulled, avoided and reversed. It is further ordered that this suit be -dismissed at plaintiff’s costs.


author: Ludeling, C. J

text:
    No. 804.
    The State of Louisiana v. Angelas Prudhomme, et als.
    *JCt makes no difference whether an accomplice, wlio becomes a witness, has been convicted or not, or whether he be joined or not, in the same indictment with the prisoner to be tried* provided he be not put upon his trial at the same time.
    ’The circumstance of the witness being an accomplice of the party on trial, affects his credibility only, of which the jury are to judge.
    Under the laws of this State, all parties present, aiding and abetting in the commission of a felony, are principals therein. If the principle which prevents an accomplice to testify, be so restricted as to exclude all principals, it would have little practical importance.

      A jury may convict on the uncorroborated testimony of an accomplice; they are the judges of his credibility. The rule requiring the judge to charge the jury that the testimony of an accomplice needs confirmation is rather a rule of practice than a rule of law.
    A judgment decreeing imprisonment for life is not unauthorized by law, because the words “hard labor ” are omitted in it. The words are not sacramental. They would add but little to the efficacy of the judgment.
    APPEAL from tbe Eighth Judicial District Court, parish of St. Landry. King, J. Criminal case.
    <?. W. Hudspeth, District Attorney, appellee. Ferrodm, Wells, Lewis & Bro., for defendant and appellant.
   Ludeling, C. J

Cyriaque Guillory, Angelas Prudhomme aud Louis Prudhomme were indicted for the murder of James McDaniel. Guillory was not arrested. The State asked for a severance, and put .Angelas Prudhomme on his separate trial. He was convicted and ¡sentenced; and he has appealed. An assignment of errors has been 'filed, which embodies, substantially, the questions presented for decision by the bills of exceptions reserved on the trial. They are the following:

First — That Louis Prudhomme, an accomplice, who was included in the same indictment, was permitted to testify against him before he • had been tried and before a nolle prosequi had been entered in his case.

Second — 'That a letter, signed with his initials, was received in evidence before it was proved that it was written or signed by him, or by ¡his request.

Third — That he was compelled to give evidence against himself on ■ his trial.

Fourth — That the judge refused to charge the jury as requested.

Fifth — That his motion for a new trial was refused.

Sixth — That the sentence and judgment is not authorized by law.

I. It makes no difference whether the accomplice has been convicted •or not, or whether he be joined in the same indictment with the prisoner to be tried, or not, provided he be not put upon his trial at the same time. Eoscoe 120; 2 Hawk. P. C., c. 46, sec. 90; 7 Ind. 326;

1 Green 1., sec. 379 ; 23 An. 78.

II. The letter was properly received in evidence. Louis Prudhomme testified that the accused had handed it to him, in jail, to be delivered to William Curley; that it was unsealed; that it had remained in his possession until the day of the trial, except when •handed by him to Duson and others to read ; and it was further identified by Louis Prudhomme and Duson, the deputy sheriff, as a letter ■which he had been permittted, by Louis Prudhomme, to read. And .at a later stage of the trial, L. Prudhomme testified that he had seen Angelas Prudhomme write the letter.

III. The tracks of the murderer were found near the scone of the .murder, and to enable the witness who saw the tracks to state how they corresponded in size with the feet of the prisoner, he was forced to take his feét from under a chair where he had put them. This the prisoner’s counsel calls forcing him to give evidence against himself. A mere statement oí the facts shows how utterly untenable the objection is. The witness was required to look at the feet of the prisoner .in order to testify to facts which might enable the jury to connect the ^prisoner with the perpetrator of the crime, and we are unable to perceive how any constitutional right of the prisoner was infringed by •compelling him to place his feet where they could be seen by the witness and the jury.

IY. The prisoner requested the court to charge the jury as follows : “That if the jury are satisfied that Louis Prudhomme, a witness for the State, is charged in the same indictment with the prisoner, Angelas Prudhomme, as a principal in the commission of the crime of murder therein charged; that he was expressly offered by the District Attorney to be sworn, and to testify on behalf of the State in this case,, as an accomplice of the prisoner, Angelas Prudhomme, in the commission of the crime alleged in this case, and that said Louis Prudhomme was present, by previous combination and design, with any other person or persons, at the commission of the homicide charged in the indictment in this case, aiding and assisting in the commission of said homicide, he, the said Louis Prudhomme, was a principal in the offense charged; and that as an accomplice, and as a principal offender, if he is still under bond in said indictment, and neither tried nor discharged thereunder, the jury must reject his testimony entirely.”

And further: “That where an accomplice testifies against an accused party in a criminal case, the accomplice who is such witness,, must be corroborated as to the person of the accused ;. and if he is not so corroborated, the jury should acquit the prisoner; provided the testimony of the State tends to the conviction of the prisoner upon, the evidence of such accomplice.”

The judge a quo did not err in refusing the charges asked for.

We have already said that the accomplice was a competent witness-for the State until he had been convicted and sentenced, if the party against whom the accomplice is offered as a witness be put upon his separate trial. The circumstance of the witness being an accomplice of the party on trial affects his credibility only, of which the jury are to judge. McNally’s Ev. 200; 1 Greenl. 783.

Under the laws of this State all parties present aiding and abbetting in the commission of a felony, are principals therein. If the principle, which permits an accomplice to testify, be so restricted as to-exclude all principals, it would have little practical importance. We are of the opinion that an accomplice is not disqualified from testifying simply by being charged as a principal in the same indictment. The court did not err in refusing to charge the jury that Louis Prudhomme was, in the case stated, a principal offender — -that is, a leader or instigator — and it is to such principal offenders that the authorities relied upon by the prisoner’s counsel apply. 1 Greenl. § 379; 1 Phillips’ Ev. 37.

The judge correctly charged that a jury may convict on the uncorroborated testimony of an accomplice; that they are the judges of his credibility, and that the rule requiring the judge to charge the jury that the testimony of an accomplice needs confirmation is rather a rule of practice, than a rule of law.

“ The rule requiring corroboration is a rule, not of law, but of gen•eral and useful practice, the application of which is for the discretion •of the judge by whom the case is tried, and in its application, much depends on the nature of the offense, and the extent of the witness’ •complicity.” Fisher’s Digest 568 ; 1 Phillips 113 (tenth edition, 1859); Eoscoe 121: Whart. Grim, sixth edition, 1 vol. 785.

Y. The motion for new trial was based on the hypothesis that the verdict was contrary to the law and the evidence. Haviug already decided that the rulings of the judge a quo were correct, it follows as .a matter of course that we must hold that the new trial was correctly refused.

YI. The verdict of the jury was “ guilty without capital punishment.” The judgment was that the convict be “imprisoned in the 'State Penitentiary for the space of his natural life,” etc. It is contended that because the words “hard labor” were omitted in the judgment, it is unauthorized by law. The words are not sacramental, •and we imagine would add but little to the efficacy of the judgment.

Judgment affirmed.