author: McENBRY, J.

text:
    No. 11,939.
    Grace F. Chamberlain et als. vs. Cyril Abadie.
    The payment of taxes on property is not by itself evidence of corporeal possession, of the property, and without some act showing corporeal possession, will not support the plea of ten years’ prescription.
    Possession animo domini forms the basis of the ten and thirty years’ prescription, and it must be, at least in its commencement, a corporeal possession.
    The corporeal possession is regulated to a great extent by the uses for which the immovable property is destined, and its nature.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Kernan & Wall for Plaintiffs, Appellants.

      Harry H. Hall for Defendant, Appellee.
    Argued and submitted February 14, 1896.
    Opinion handed down February 24, 1896.
    Rehearing refused March 23, 1896.
   The opinion of the court was delivered by

McENBRY, J.

The plaintiffs instituted this petitory action to recover a square of ground situated in the seventh district of this city. Plaintiffs’ ancestor acquired this property from the New Orleans Oanal and Banking Company, Samuel Kohn, Laurent Millaudon and John Slidell, July 23, 1833. Nathaniel Chamberlain, the grandfather of plaintiffs, died in 1836, and the square of ground which they claim was inventoried in his succession. There is no evidence in the record that it ever passed from the succession by judicial sale, or that it was ever sold for taxes.

Defendant sets up title as follows:

Warwick Martin to Edward Chase, who acquired title for account of J. W. Clark and others in 1854, and in 1856 J. W. Clark and others sold to E. W. Clark. Edward Chase conferred title in 1882 to E. W. Clark; June 27, 1887, E. W. Clark sold to defendant. The defendant pleads the prescription of ten years. O. C. 3478. To prove possession and occupancy during the time necessary to perfect his title, he exhibits the receipts for taxes on the property paid by himself since his purchase of the same, and by the authors of his title, for more than ten years. The evidence shows that the square was vacant,not enclosed, low and swampy, until defendant, seven years before the institution of this suit, took actual possession of the same and filled in the hollows and made the square high ground.

The square was formerly a part of the undivided half of a plantation acquired by the New Orleans Canal and Banking Company.

The question at issue is, does it require some act when the property is unoccupied, marsh, swamp, or wood land, to be done in order to show to the world that the property is occupied in such a manner as to be equivalent to corporeal possession, to mark the commencement of the prescription of ten years?

The defendant cites the cases of Giddens vs. Mobley, 37 An. 417, and Green Brothers vs. Witherspoon, 37 An. 751, and Barrow vs. Wilson, 38 An. 209, as authority that the deed of sale translative of property of wild swamp lands coupled with the payment of taxes for forty years will give a purchaser in good faith a title by prescription.”

In Giddens vs. Mobley, 37 An. 417, there" is a dictum which sustains the views urged by defendant. But this obiter of the court was not necessary for the decision of the case, and the court said in the opinion that the plaintiffs are estopped from contesting this fact of possession, because-they allege that the defendants have possessed since July 26, 1870, and claim rent from that day. More than ten years elapsed from that day to the institution of this suit on July 5, 1851.”

In the case of Green Brothers vs. Witherspoon, 37 An. 751, it was held that “ thirty years’ prescription may be successfully invoked by a possessor in good faith of tracts of wood land forming part of a plantation on which he has lived continuously for that time, although he may not have felled a tree from those tracts, or done any other acts of corporeal possession of that part of his plantation.”

A possession of a part of a tract of land with title to the whole carries with it possession of the whole. This is self-evident. Donegan’s Heirs vs. Martineau, 9 Martin, 43; Prevost’s Heirs vs. Johnson, Ib. 174; Gillard vs. Glenn, 1 Rob. 159: Henderson vs. St. Charles Church, 7 N. S. 122.

It is not shown here that the defendant for more than ten years, by his own act, or by that of the authors of his title, has ever given any physical evidence of an intention to occupy any part of the property.

In Barrow vs. Wilson, 38 An. 209, this court said: The lands in question are shown to have been low, marshy lands, and to have been sold by the State as swamp lands, subject to tidal overflow. Doubtless the grazing of his cattle thereon was all the possession which the then owner needed of the lands, and such possession, accompanied by the regular payment'of taxes, as shown here, is sufficient in law to supply a proper foundation for prescription.”

The doctrine in the case of Giddens vs. Mobley is not supported by the Oode, and the jurisprudence of the State is diametrically opposed to it. The unbroken line of authorities is to the effect that the prescription of ten years must be supported by corporal possession in the beginning, after which, if it has not been interrupted, it may be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes and other similar acts. O. 0. S499.

In the case of Searles vs. Costillo, 12 An. 203, this court said: “The payment of taxes may announce the possessor’s intention to preserve the possession of the thing when he or his predecessor has once had a corporal possession, but it will not constitute a corporal possession.

In case of Dodeman vs. Barrow, 11 An. 88, it was held that the defendant Barrow, who, having no possession, either actual or civil, could transfer none to his vendee, but he was bound to prove a corporal possession in himself as the starting point of his title by prescription.

In Wilson vs. Marshall, 10 An. 327, it was said: “ Possession animo domini forms the basis of this species of prescription; it must be, at least in its commencement, a corporal possession, and must be continuous, uninterrupted, peaceable, public and unequivocal.” Quoting Arts, (old numbers) 3453, 3466, 3467.

“ Such a possession, without any title whatever for thirty years (a reservation in ■ favor of certain persons not sui juris) will enable, the possessor who invokes the plea of prescription to hold dominion over the land against all the world. With a title translative of property, and aided by good faith, a possession of like character for the period of ten years will suffice against a real owner, resident in the State. Old articles of Code, 3465, 3442, 3437, 3438.”

This case announced the same doctrine held in cases prior to it, and since it was decided we know of no departure from it, except the dictum in the case of Giddens vs. Mobley, 37 An. 417.

W. H. Michel et als. vs. Ernest H. Stream, recently decided, 48 An., ante., p.

The corporal possession necessary to support the prescription is governed by the use for which the land is destined. If it is for pasturage, the grazing of cattle upon it is an act of corporal possession. From its nature it may forbid an actual residence or. cultivation. Timbered land may be enclosed, trees cut, roads run through it, and many other similar acts to show the intention to subject it to one’s dominion.

In the case of Ranson vs. Long, 13 An. 523, it was held, while the proof of possession was not conclusive, that the fact that the land was a vaoherie in a part of the parish of St. Oharles, difficult of access, and that it did not admit of any obvious marks of possession further than had been shown, the judgment of the lower court sustaining the plea of prescription was affirmed.

Referring to the original record, the facts which the lower court found sufficient as the foundation for the plea were that the plaintiff had an actual settlement on Bayou Des Allemands, and that he cultivated a few acres around his house, and that he claimed the vaoherie as far as Bayou St. Ours, to which his cattle wandered and on which they grazed.

The square of land in controversy was not in a remote locality difficult of access, and it was not of that nature which would preclude the fencing of it or of cultivating a part of it. A cabin could have been built on it, and even then if it had fallen to ruins it would have been a potent witness of the fact of actual corporal possession, which would have been preserved by the civil possession.

The tax receipts relied on by defendant as evidence of corporal possession, by themselves, are not sufficient for that purpose.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs be declared the owners of the square of ground described in their petition and be placed in corporal possession of the same, defendant to pay costs. The right of defendant to demand reimbursement for improvements on said square of ground is reserved.


source: Caselaw Access Project

author: WATKINS, J.

license: Public Domain

text:
    No. 12,051.
    Cornelius P. Munday vs. Leopold Kaufman.
    Notwithstanding the proceedings of a family meeting recommending a sale of succession property to pay debts is approved and homologated by the judge,, same does not, in any manner, impair the validity of a contemporaneous order for the sale of same property, which is made by the same judge.
    It is a well settled principle of jurisprudence, as well as a well recognized rule of property, that a purchaser at a sale made at public auction, in pursuance of an order of court, is not bound to look beyond the decree in order to ascertain its necessity.

      He is bound to ascertain that the court had jurisdiction to grant the order; but finding that it has, the truth of the record, in other respects, may be assumed.
    PPEAL from the Twelfth Judicial District Oourt for the Parish of Calcasieu. Fournet, J.

      Williams & Sugar for Plaintiff, Appellee.

      S. D. Bead and Arséne P. Pujo for Defendant, Appellant.
    Argued and submitted February 11, 1896.
    Opinion handed down March 9, 1896.
    Rehearing refused March 23, 1896.
   The opinion of the court was delivered by

WATKINS, J.

This is an action for the rescission of a judicial sale on the charge of nullities alleged to have existed in the proceedings leading up to the sale, as that of the property of a minor; and the defence urged against it is the protection which is afforded an adju-judication regular in form and founded upon an order of court, which has been granted for the sale of succession property for the payment of its debts and charges.

In limine the defendant tendered an exception to the capacity of the plaintiff to institute this suit, as an emancipated minor, charging that he was not legally emancipated.

He was emancipated by an authentic act duly executed by his father on the 19th of June, 1891.

That act was executed in pursuance of the provisions of the Revised Oivil Code, Art. 336, which declares that “ the minor, although not married, may be emancipated by his father * * when he shall have arrived at the full age of fifteen years,” this emancipation to be evidenced by a public act.

Per contra, defendant’s contention is that at the time the act of emancipation was executed, the plaintiff’s father was without power to exercise marital authority because the guardianship of the minor had been by a decree of divorce transferred to the plaintiff’s mother, who had intermediately died, and that subsequently another person had qualified as dative tutor for the minor. .

The act of emancipation appears to be regular in form, and it was executed by the father of the minor, who was at the time nearing the age of majority. No steps had been taken looking to the revocation of the act. Under this state of facts we think it should be recognized and given full force and effect in the present proceeding. Had the mother lived, and were she in court asserting an adverse claim, the ease might be viewed in a different light. But the alleged invalidity of the act having been interposed by a stranger, for the purpose of defeating the claims and pretensions of the minor, who founds action upon it, can not be maintained.

In the Succession of Gaines, 42 An. 699, we entertained a similar view of a similar question. Richardson vs. Richardson, 38 An. 639.

II.

From a judgment in favor of the plaintiff the defendant has appealed.

The statement of defendant’s side of the story is that plaintiff’s mother obtained a judgment of divorce a vinculo matrimonii against his father, decreeing her the custody of the child, who was a minor. That she subsequently died testate in the parish of Calcasieu, be-’ queathing all her property, which was situated there, to the plaintiff as universal legatee, and appointing her brother, who resided in the adjoining parish of Vernon, executor and tutor. That the will was duly probated, letters testamentary ordered to be issued, and on the 1st of July, 1886, an under-tutor was appointed, and the executor filed his bond, and subscribed an oath as testamentary tutor, and received letters of executorship and tutorship.

That on 22d of July, 1886, the executor presented to the Court of Probates a-petition which was accompanied by a statement of the assets and liabilities of the succession which had been.approved by him up to that date; and he thereupon asked for an order to sell for cash a sufficient amount of property to satisfy the debts, and also for the convocation of a family meeting to determine the terms of the payment of that portion of the price not needed for the purpose.”

That such an order was granted, a family meeting was held on the same day, and it recommended a cash sale of all the property, the proceeding being subsequently homologated. That the entire property was sold on the 4th of September, 1886, and adjudicated to the defendant for the price of fifteen hundred dollars, same being the full amount of its appraisement in the inventory of the succession.

On this statement his theory is that the representative of plaintiff’s deceased mother was at one and the same time acting in the dual capacity of testamentary executor and tutor in obtaining the order of sale, and he assumes that it was necessary for the entire property to be sold in order to pay the debts of the succession of the testatrix, and ascertain the rights of his ward, and that his title is protected by the order of sale.

On the contrary, the contention of plaintiff’s counsel is that the order of sale was not procured by the executor for the disposition of the property, as that of the succession of the plaintiff’s mother, for the purpose of paying its debts; but, acting on the assumption that it was property which had devolved on the plaintiff as universal legatee under the will of his mother, the executor, in his capacity as such, caused a family meeting to be convoked for the purpose of advising with reference to the minor’s evident interest and advantage in making a sale, and .to suggest the terms and conditions of the sale in ease it should be recommended.

That a sale made in pursuance of an order of court predicated upon the recommendations of a family meeting thus convoked, is not a succession sale to pay debts in the due course of administration; but that same was a tutor’s sale, which was based exclusively upon the advice of a family meeting.

That the purchaser at such a sale is not protected by the order of court, but his title is open to all the objections of irregularity which may be suggested by an emancipated minor, and, in a litigation with the emancipated minor, the adjudicatee carries the burden of proving the validity of all the judicial proceedings leading up to, and the legality of the sale.

The illegalities plaintiff suggests are the following, viz.:

1. That the court had no power to grant the order for the sale of minor’s property, and that the order granted was ultra vires and absolutely void.

2. That the testamentary executor had not the legal capacity to convoke a family meeting for the purpose of advising a sale of the property of the plaintiff, and that a meeting of the family thus convoked, as well as their recommendations, were illegal and void.

3. That Nathan S. Smart, who was appointed dative tutor under the last will of plaintiff’s mother, was not competent ibo qualify and act as tutor, because plaintiff’s father was still living at the date of the death of the testatrix, thus depriving her of the legal capacity to appoint a testamentatary tutor at all, and the law fully vesting the right in the surviving parent to qualify and act as tutor.

4. That, in any event, the testamentary tutor was a resident of the parish of Vernon, to whose domicile the jurisdiction of a family meeting convoked in the parish of Calcasieu did not extend, and he failed to have his bond as tutor inscribed on the mortgage records of the former parish, and, likewise, failed to have an abstract of the inventory of the minor’s property therein inscribed.

5. That no order of court or recommendation of a family meeting at any time fixed the amount of the tutor’s bond or approved the same.

6. That the plaintiff’s father filed an opposition to the appointment and qualification of the dative testamentary tutor, asserting his preference and better right to the appointment, and that the same was on file when the alleged order of sale was granted, and so remained undisposed of. until long after the sale was made, when it was withdrawn;

7. That the legal effect of all of the foregoing illegalities and irregularities was and is that the sale to defendant was made without the plaintiff — then a minor of nine years of age — being notified or made a party thereto.

Plaintiff avers that due notice was given to the public at the time of the adjudication of the illegality of the proceedings by the plaintiff’s father, and that subsequently additional notice was given to the defendant after the adjudication and before the completion thereof by the payment of the purchase price.

He further represents that prior to the institution of this suit a legal tender was made to the defendant of the amount paid and interest so as to place him in default — not being at the time advised whether or not the proceeds of the sale had been employed in settlement of the debts of the deceased.

It would serve no useful purpose to make an examination in detail, into all the various charges of nullity which we have enumerated, as in our opinion the case must turn upon the view we shall take of the order of court upon which the sale was predicated; that is whether it was one directing a sale to be made of a minor’s property to pay debts.

If it be viewed as an order of court for the sale of succession property to pay debts, there will be no occasion for the court to examine into or decide the complex questions plaintiff’s counsel has presented with reference to the tutorship, or the nullities alleged to have resulted therefrom.

There is some obscurity in the proceedings, which must be analyzed and eliminated, in order to arrive at a correct conclusion on the subject.

It appears that on the 26th of June, 1886, Nathan S. Smart, who was designated in the will of Mrs. Louisa Munday as testamentary executor and tutor, filed an application for the probate of her will, the issuance of letters testamentary to him, and for the convocation of a family meeting “ to deliberate generally touching the inter-erest of said minor, and to recommend a suitable person for the appointment of a tutor to the minor,” a child of the deceased, and for the appointment of an under-tutor.

Upon this application an order was granted upon the same date directing that a family meeting be convoked for the purposes stated in the application; and in the same order an under-tutor was appointed who subsequently qualified.

An inventory of the property of the deceased was taken, the principal asset of which was the property in dispute, an improved town lot in the city of Lake Charles.

On July 1, 1886, the family meeting was held before the clerk of the District Court for Calcasieu, and recommended:

1. That Nathan S. Smart, of Vernon parish, Louisiana, should be appointed dative testamentary tutor to the minor in conformity to the last will of the testatrix.

2. That the sheep and cattle should not be sold, but that the remainder of the personal property shall be sold for cash.

8. That the immovable property should be sold for. one-third cash on the day of sale, one-third in six months, and remainder in twelve months from the day of sale.

On the same date the will was probated, and letters testamentary and of tutorship were directed to issue to Nathan S. Smart in conformity to the terms of the will, upon taking oath and furnishing bond according to law; and, upon the same date, he gave bond as testamentary executor and tutor; and upon the following day he subscribed the cath required as testamentary executor and tutor, and received letters testamentary and of tutorship, having caused an abstract of the inventory to be inscribed in the mortgage office of the parish of Calcasieu, and his tutor’s bond likewise.

On the 9th of July, 1886, Dr. J. 0. Munday, the father of the minor Cornelius Pearl Munday, filed an opposition to the application of Nathan S. Smart to be appointed tutor, claiming the right to be confirmed as natural tutor to his minor child. This' opposition was pending on the docket of the District Court until the sixteenth day of December, 1886, when it was withdrawn. A final judgment was rendered and signed in open court on that day, appointing Nathan S. Smart testamentary tutor to the minor. Letters of tutorship issued to him on the third day of January, 1887.

On the 19th day of July, 1886, Nathan S. Smart, as testamentary executor, presented an application for an order to sell all of the property on the inventory. He alleged that he had approved claims to the amount of seven hundred and four dollars and three cents— that the personal property was not sufficient to pay the debts — that the real property was unproductive; that it was liable to deteriorate in value, and that there were no funds on hand to support and educate the minor. He prayed for an order authorizing him to sell the whole of the property. And for the convocation of a family meeting to deliberate generally touching the interests of the minor, to fix the terms of the sale, and to advise as to the disposition of the surplus of the proceeds of the sale after paying the debts and settling the succession.

The judge declined to grant the order as prayed for in this application. But did grant an order authorizing the executor to sell property enough to pay the debts and to settle the succession. Then proceeding with his order, the judge directed that a family meeting be held to deliberate generally as to the interests of the minor, Cornelius Pearl Munday, and particularly as to the terms and conditions of sale of such property as might remain after the cash sale already ordered; and as to the mode and manner of investing the residue of the funds after paying the debts.

This order was granted on the 19th day of July, 1886.

Under that order a family meeting was held on the 22d day of July, 1886, and in the prooea verbal of their deliberations they said: “ That it is to the manifest interest or said minor:

“ 1. In view of the fact that the personal property, as shown by the inventory, only amounts to two hundred and twenty-five dollars ($225), and that the privileged and ordinary claims against said succession accepted to date, by the executor thereof, amounts to seven hundred and four and twenty-three hundredths dollars ($704.28) ; that all the property- of said succession be sold for cash to pay said debts.

“ 2. They further recommend that after paying said debts of said succession the tutor of said minor shall loan out at interest the cash balance, taking good personal and mortgage security for the money so loaned. Hardy O. Gill, under-tutor, being present during the deliberations of the family meeting, approves and ratifies their deliberations and findings, and recommends that the same be homolo-gated and made the judgment of the court.”

On the 26th day of July, 1886, the judge granted his order on said application, and ruled as follows: “ Upon considering the foregoing application and the proceedings and deliberations of said family meeting, approved by said under-tutor for said minor, there being no opposition thereto. It is therefore ordered and decreed that the -deliberations of the family meeting, held before A. M. Mayo, deputy clerk and ex-officio notary public for Calcasieu parish, Louisiana, on the 22d day of July, 1886, on behalf of the said minor, Cornelius Pearl Munday, be and the same are hereby approved and homologated; that all the property belonging to said succession of Louisa Smart, deceased, and mother of said minor, be sold for cash, and that after paying the said debts of said succession that the tutor of the said minor shall loan out at interest the balance realized from said sale, after paying said debts, upon taking good personal and mortgage security for the reimbursement of said money so loaned; and that a writ of sale issue accordingly to said executor of said succession or to the sheriff of said parish of Calcasieu requiring and ordering him to sell all of said property of said succession of said Louisa Smart, deceased, for eash after due and legal advertisement, and after complying with the forms and requisites of law.”

Prom the foregoing it appears that notwithstanding Nathan S. Smart had been recognized by a decree of court as testamentary tutor for the minor, and had taken upon himself all-of the insignia of that office on the 2d of July, 1886, he did not subsequently act as such in reference to the sale of the property in question, being influenced doubtless by the pendency of the opposition of the minor’s father claiming a better right to the tutorship. Consequently he sought to evade the force and effect thereof by petitioning in his capacity of executor for the sale on the 19th of July, 1886, and for the convocation of a family meeting to recommend the terms of sale —the sale having been made during the September following.

Upon careful consideration of all the foregoing proceedings we are of opinion that the order of court is rather to be regarded as one for the sale of succession property to pay debts than as one for the sale of the property of a minor in pursuance of the recommendations, of a family meeting.

The recommendations of the family meeting of date July 1, 1886, seem to have been abandoned, because a subsequent order of sale— the one under which the sale was actually made — was applied for on the nineteenth of that month and granted.

That application was accompanied by a statement exhibiting debts of the deceased and those against the succession, aggregating about seven hundred dollars, and showing no funds in the hands of the executor with which same could be paid.

The order which the judge granted directed the sale of all the property belonging to the succession for the purpose of paying its debts.

It is true that the petition praying for the order of sale also prayed for the convocation of a family meeting for the purpose of fixing the terms of sale's, “ and to advise as to the disposition of the surplus of the proceeds of the sale after paying the debts and settling the succession.”

And it is also true that the judge granted the order as requested, and that a family meeting was subsequently convoked, and re commended a sale for cash “ all the property of the succession ” for the purpose of paying its debts, but the family meeting also recommended that the cash balance which should be realized at the sale; over and above the succession debts and charges, must be loaned at interest on good mortgage security.

Yet, notwithstanding the judge approved of said recommendations, he granted an independent order of sale of all the property to pay the debts of the succession, and he specifically directed that a writ of sale issue to the executor “requiring and ordering him to sell all of said property,” etc.

The recommendations of the family meeting were unnecessary, but they did not impair the validity of the order of sale made by the judge. They were mere surplusage.

It is a well settled principle in our jurisprudence, as well as a well-recognized rule of property in this State, that a purchaser at a sale made at public auction, under an order of court having jurisdiction of a succession, is not bound to look beyond the decree in order to ascertain its necessity.

He is bound only to ascertain that the court had jurisdiction, and, finding that it has, the truth of the record, in other respects, may be assumed. Webb vs. Keller, 39 An. 56; Fraser vs. Zylics, 29 An. 536; Herriman vs. Janney, 31 An. 280; Webb vs. Kellar, 26 An. 596; Linman vs. Riggins, 40 An. 761.

Taking this view of the proceedings there ought to have been judgment in the court below in favor of the defendant.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of plaintiff be rejected, and that the defendant be quieted in his title and possession.

It is finally ordered that the • plaintiff be taxed with the cost of both courts.


author: McEnbey, J. Watkins, J. Miller, J.

text:
    No. 11,879.
    State of Louisiana vs. Octave Thibodeaux et al.
    Section 8381, .Revised Statutes, which requires a prosecution in the name of the State against a delinquent road overseer, contains the essential description of . a crime or an offence, and a road overseer, indicted under said section, is an incompetent grand juror.
    The qualifications of both grand and petit jurors are fixed in Sec. 1 of Act 89 of 1894.
    Where the defendants do an unlawful act, such as the wrecking of a train, with felonious intent, and death ensues, in order'to convict the defendants of murder it is not required that they should be primarily convicted of train wrecking. It is competent to prove the wrecking of the train by the defendants, not only as the means which occasioned the death, but to establish the degree of defendants’ guilt.
    Statements of one of two defendants, charged with the commission of the same offence, are admissible evidence, although they implicate the other, in whose presence they were not made, if such statements are restricted to the party making them, and the part relating to the other defendant is stricken out.
    Where a defendant breaks jail and is a fugitive from justice pending the appeal, the appeal will be dismissed.

      On application por Rehearing.
    when an accused, pr or to the filing of his application for a rehearing on a judgment dismissing his appeal, returns to the custody of the sheriffl, and when such an accused has been sentenced to suffer death, the decree of court in doubtful cases should favor the liberty of the citizen and right of appeal and an appeal dismissed will under the circumstances be reinstated*
    PPEAL from the Eleventh Judicial District Court for the Par' ish of Acadia. Perrault, J.

      Milton J. Cunningham, Attorney General, and E. P. Dubuisson, District Attorney, for Plaintiff, Appellee.

      Philip S. Pugh for Defendants, Appellants.
    Argued and submitted January 11, 1896.
    Opinion handed down January 20, 1896.
    Opinion granting rehearing handed down February 24, 1896.
    Submitted on rehearing March 14, 1896.
    Opinion on rehearing handed down April 6, 1896.
   The opinion of the court was delivered by

McEnbey, J.

The defendants were indicted for murder. Octave Thibodeaux was found guilty of murder and Auguste Thibodeaux of manslaughter. They appealed from the verdict and judgment.

It will be only necessary to notice the first and second defences as paragraphed in the brief of defendants and the motion to sever filed by Auguste Thibodeaux, and the admissions and confessions of the defendant Octave Thibodeaux, which it is alleged were made out of his presence and after the railroad wreck, which, it is asserted, implicated him. The defence in the brief says that the first and most important point urged is that one of the grand jurors who participated in the indictment was an incompetent juror.

The motion to quash the indictment was filed before pleading to it and was therefore in time.

If it be a fact that the grand juror was incompetent the finding of the grand jury of the indictment is null and void. State vs. Rowland, 36 An. 193; State vs. Nolan, 8 Rob. 513; State vs. Jones, Id. 616; State vs. Parks, 21 An. 251.

It is not denied that the grand juror Daughenbaugh at the time he served on the grand jury that found the bill was under indictment under Sec. 3381, Revised Statutes. This section provides “ in case of failure or neglect of any overseer of roads to discharge faithfully the duties herein imposed, it shall be lawful for the different grand juries of this State to present the said overseers to their respective District Courts for neglect or refusal to perform their duties, and upon such presentment it shall be the duty of the District Attorneys to prosecute.the said overseers, and upon trial and conviction, they shall be fined by the court in a sum not less than one hundred dollars nor more than five hundred dollars.”

Section 3383 imposes the duty upon the District Judges to charge the grand juries to inquire into the state of roads in their respective parishes and lay before the said grand juries the list of the overseers in order that the grand juries may know which of said overseers may be liable to prosecution for a failure to perform the duties imposed upon them.

The section 3381 is not a forfeiture to be recovered in a civil suit for the failure to perform a duty. There is a clear distinction in the road laws between the forfeiture and the prosecution provided for by this section.

Sections 3375, 3377, 3378 define particular duties, which, if' neglected, subject the overseer of the road to a penalty to be recovered by suit. Sec. 3371 is for failure in general to perform the duties required of road overseers.

The qualifications of both grand and petit jurors are fixed and defined by Act 89 of 1894, and among these qualifications it provides that the juror shall not be “charged with any crime or offence.”

A crime, is a wrong directly or indirectly affecting the public, to the commission of which the State has annexed certain pains and penalties, and which it prosecutes and punishes in its own name in what is called a criminal proceeding. 4 Am and Eng. Eney. of Law, p. 643.

Crime is often used as comprehending a misdemeanor and as synonymous with it, and also of offence, in short as embracing every indictable offence.

The offence charged against the grand juror was malum, prohibitum. The criminality to perform the public duty imposed upon him springs from its being a violation of public law. It is a wrong which the State notices as injurious to the public, and punishes it by a criminal proceeding in its own name.

The statute does not provide for the punishment of a violation of a municipal regulation, nor are the violations of the statute in the failure to perform public duties of such- character as to distinguish them from municipal offences and those denounced in the general criminal statutes of the State. The law is operative throughout the State, and is in the furtherance of a public policy of the State. It is a statutory offence of a public nature and is a crime.

In the case of People vs. New York Police Commissioners, 30 Hun. (N. Y.) 507, the relator was appointed a patrolmen. Before his appointment he had been convicted of intoxication in violation of a statute of the State of New York. A resolution was adopted by the Police Commissioners requiring him to appear before them in order that they might inquire into his eligibility. It was urged that simple intoxication is not included in the meaning of the word “crime” which would make the relator ineligible. By the statute a person found intoxicated in any public place was declared guilty of an offence. The court, in the opinion, said: “ We are forced, therefore, to the conclusion that the relator, at the time of his appointment, was ineligible to the office, because he had been convicted of a crime, and by the express terms of the statute no person who has been so convicted can continue .to hold membership in the police force.”

This case was affirmed on appeal to the Court of Appeals. 102 N. Y. 583.

The Revised Statutes of New York declare that the words “crime” and “offence” when used in the statute “shall be construed to mean any offence for which any punishment may, by law, be inflicted.” This statutory definition does not change the general definition of a crime,- and it is practically the same as given in the text-books. If in the Act 98 of 1894 the words “crime” and “offence” are used synonymously, the same principle will apply in determining the fact that the statute violated is of a public nature, and a penalty is affixed for its violation, and its violation is a crime..

If not used in the sense indicated, its violation assuredly was an offence of a public nature, and the juror is disqualified under the express terms of the statute. There is no force in the argument of the prosecution that Sec. 4 and Sec. 1 of the act defines the qualification of grand jurors. A casual reading of the act will show that Sec. 1 defines the qualification of both grand and petit jurors.

The defendants complain of evidence against them as to the wrecking of a train, the instrumentality of which caused the death of the persons whom the accused áre charged as having murdered.

Act 77 of 1886 provided a penalty of twenty years at hard labor, and a fine at the discretion of the court, for placing obstructions on a railroad track, with the design to injure the railway, passengers or engines, or cars, or who shall take up the rails, etc., for the same prupose.

It was not essential that the defendants should have been convicted of this crime before an indictment for murder of the party who met his death by the unlawful interference with the railroad. It was competent to prove the wrecking of the train by defendants, as the means which produced death.

This is illustrated by Mr. Bishop, No. 334, in his work on Criminal Law. “ Thus we have seen to shoot unlawfully, but not feloniously, at the poultry of another, and thereby accidentally to kill a human being, is manslaughter; to do the same thing with the felonious intent to steal the poultry, is murder.”

The defendant did an unlawful criminal act in wrecking the train, and it was competent to prove this fact in order to establish the guilt of the defendants in the higher or lower degree of homicide. Ibid.

The State offered to prove certain statements of the defendant Octave Thibodaux, which implicated the other defendant, Auguste. This was objected to by the defendant Auguste, because he was not present when it was made; that no conspiracy had been proven to exist between Octave and Auguste, and that the statement of Octave could not be admitted in evidence to the prejudice of Auguste. The court admitted the evidence because the statement was limited to Octave, the party making it, and the jury instructed not to give any effect to it as it regarded the defendant Auguste.

The question submitted was elaborately discussed in State vs. Donelon, 45 An. 744. That part of the admission referring to the defendent Auguste was eliminated.

The ruling of the trial judge was in strict conformity to the ruling in the case cited.

There is a motion filed to dismiss the appeal of Octave Thibodeaux because he has broken jail pending the appeal. The motion is sup - ported by the affidavit of the sheriff. The appeal of Octave Thibo-deaux will therefore be dismissed, and it is so ordered.

It is ordered, adjudged and decreed that the verdict and sentence against the defendant Auguste Thibodeaux be annulled, avoided and reversed, and it is now ordered that this case, as to him, be remanded, to be proceeded with according to law.

On Application por Rehearing.

Watkins, J.

In the application our attention has been called to the fact that since our opinion was rendered herein that Octave Thibodeaux has returned to the custody of the sheriff and is at this time incarcerated within the four walls of the jail and was prior to the time this application was filed.

Considering this a case in which the accused has been sentenced to the extreme penalty of the law, and that our decrees should in doubtful cases favor the liberty of the citizen, and the right of appeal, we have concluded to grant the application and reinstate de-fendimos appeal.

It is therefore ordered and decreed that our former decree dismissing the appeal of Octave Thibodeaux be set aside, and it is further ordered and decreed that his appeal be reinstated and set down for trial and further proceedings according to law.

On Rehearing.

Miller, J.

In this case the appeal of Octave Thibodeaux, one of the defendants, was dismissed, afterward reinstated and is now before us for decision.

For the reasons stated in our opinion given on the appeal of Au-guste Thibodeaux, we reversed the verdict and sentence as to him, and for the same reasons it is now ordered, adjudged and decreed the sentence of the lower court of Octave Thibodeaux be annulled and set aside; that he be held for another trial, and to this end that this case be remanded to be proceeded with according to law.

      ÍTote.—State vs. Wright, 32 An. 1018. On motion to dismiss the court ordered a continuance to a fixed day, and if in the meantime the accused did not return, the appeal -would he dismissed. See 36 An. 864; 41 An. 402; 44 An. 969; Am. and Eng. Ency. Law, 853, Sec. XI, Note 6. — Rtcvobtek.


author: . Nicholls, 0. J.

text:
    No. 11,898.
    William D. Wheelwright vs. St. Louis, New Orleans and Ocean Canal and Transportation Company.
    Where a canal company which under authority of the police jury of a parish had been permitted to cut the public leve¿ in front of the canal in order to make connection with the Mississippi river, permitted the locks and gates of the canal to get into such bad condition as to threaten the community with a crevasse, and the property in that condition passed into the custody of a sheriff under writs of attachment, the legal duty was not thrown upon him even had he legal authority so to do, to close primarily, at his own expense, the mouth of the c.anal by a dam or levee, for the reason that it might he deemed necessary that this should be done for the protection of the property in his charge.
    The expenditures of a sheriff which are taxable as costs of suits are those incurred by him in the performance of obligations cast on him by the law itself.
    Even if a police jury which had authorized by ordinance the cutting of the public levee in front of a canal in order to enable its owners to .make it connect with the Mississippi river had the right to repeal its ordinance and construct or have constructed a dam across the mouth of the canal at the expense of the owners (a point not decided) by reason of the condition of the locks and gates threatening the community with a crevasse, a claim for the payment of the construction of the levee could not be made to prime the rights of a creditor holding a mortgage on the canal at the time of the work, unless the claim or contract liad been registered according to law. The claim for reimbursement would not prime that of the mortgage creditor, because the person who constructed such dam or levee was the sheriff of the parish holding the property in his possession under writs of attachment, and because the work was done by him by direction of the police jury, and under an ex parte order of and authority from the District Judge to make the disbursement for account of the owners.
    A PPEAL from the Twenty-second Judicial District Court for the Parish of St. Bernard. Livaudais, J.

      Farrar, Jonas & KrvMschnitt for Plaintiff, Appellant.

      William Armstrong and John Dymond, JK, for Intervenor and Third Opponent, Appellee.
    Argued and submitted February 13, 1896.
    Statement oe the Case.
    On the former trial of this suib a judgment rendered by the District Court of the parish of St. Bernard in favor of E. E. Nunez, sheriff of that parish for one thousand one hundred and thirty-three dollars and fifty cents, and taxed as costs in the suit — the claim being based upon expenditures made by him for the construction of a dam or levee across the mouth of defendant’s canal, was annulled and reversed, the decree of reversal stating that nothing therein contained should bar the right of the sheriff to present and make available in some other proceeding or action any rights which he might have resulting from said disbursements. The facts of the case will be found reported in the case of Wheelwright vs. The St. Louis, New Orleans and Ocean Oanal and Transportation Company, 47 An. 538.
    The property of the defendant was attached in the District Court by Guichard, Cusachs and Janin, each of the three claiming privileges. While so attached, the sheriff suggested to the court that he had been notified by the police jury to construct a dam across the mouth of the canal, in the opinion of the jury the then existing condition of the canal being a menace to the community. That having no funds whatsoever wherewith to do the work, he applied to the court to be authorized to expend for and on account of the defendant a sum sufficient to defray the expenses needed for that purpose. An ex parte order was granted accordingly. The sheriff subsequently made a return to the court, in which he stated that he had expended, under the authority so given, an amount which, added to his costs and expenses, made up the sum cf one thousand three hundred and thirty-three dollars and fifty cents. While matters were in this situation, Wheelwright, the present plaintiff, obtained a judgment in the Circuit Court of the United States, recognizing and making executory a mortgage which he claimed against the same property of the defendant, which was under attachment. The possession of the property by the sheriff, under the writs from the State court standing in the way of the execution of his judgment, plaintiff instituted an action in the St. Bernard court, in which," after reciting the fact of his having obtained the judgment mentioned, he prayed that it be recognized, and ordered to be executed in the State court. Coupled with this demand, he prayed that the attaching creditors might be made parties, and that contradictorily with them, it be decreed, they had no privilege, and that their rights, if any, be held subordinate to his own. He prayed, also, that the police jury of St. Bernard be made a party, alleging that he had been informed that it claimed a preference right over his judgment for expenditures made by it iri the erection of a dam across the mouth of the canal, pending the litigation between the attaching creditors and the defendant, and he asked the same disposition of that claim as of the others. The District Court recognized Wheelwright’s judgment and ordered it to be enforced, but decreed that Guichard’s claim be paid by preference. It also rendered judgment, not in favor of the police jury, but of the sheriff of St. Bernard, for the sum of one thousand one hundred and thirty-three dollars and fifty cents, for expenditures made by him in carrying out the order of court in building a dam across the canal; the sum tobe taxed as costs, and to be paid by preference over plaintiff, Wheelwright. He appealed. On appeal the judgment in favor of Gui-chard was reversed, as was that in favor of the sheriff, the decree making the reservation in favor of the latter, which has been referred to. This court held on the appeal that the sheriff had been given a judgment when he had not asked for one, and he was not really a party to the proceedings, though judgment had been rendered in'his favor. The judgment recognizing Wheelwright’s mortgage and judgment, and ordering its enforcement, was affirmed. In due course Wheelwright seized and sold the property, and at the sale became the purchaser thereof. Prior to this Nunez, the sheriff, had filed a petition of intervention and third opposition in the Wheelwright proceedings.
    In this petition, after reciting his official capacity, he represented that under orders of the court, in the suits of Janin, of Guichard, and of Cusachs, against the canal company, and also by virtue of the proceedings in the Wheelwright suit, he had had, in his official position, since January, 1893, and still held possession of the canal property, which he described. That on the 6th of January, 1893, the police jury of St. Bernard parish passed an ordinance concerning this canal, by the terms of which he was required to build a dam across the mouth of the canal within five days — that thereupon he presented a petition to the court stating the facts in connection with the canal and received an approval and order of the court to proceed with the closing of the cnaal, in accordance with the instructions of the police jury. That the canal property was owned iby the St. Louis, New Orleans and Ocean Canal and Transportation 'Company, and was at the date of the resolution of the police jury and the said order of court in his custody, and it was still in his custody, and was, at both dates, in a very neglected and dangerous-condition. The locks of the canal, which prevented the inflow of the water of the Mississippi, had been forced open through lack of attention, and a deposit of sediment had accumulated between them to such an extent that it was impossible, to close the locks. It was therefore necessary, considering the approaching rise in the Mississippi river, to close the canal for the time being by a dam built across the front in order to keep oat the waters of the river, for the reason that it would have injured the canal property itself to an extent beyond estimate to have permitted the river water to have rushed through the canal without control; it would have virtually destroyed the canal, and petitioner was in duty bound, as he knew of these facts, to preserve this property while it was in his custody, and it was therefore necessary for him to build the dam. There was, in addition to the danger and damage to the canal itself, the fact that the canal was also a great menace to the surrounding community through the danger of a crevasse, which was threatened through the neglected condition of the locks, and the approaching rise of the river.
    That it was absolutely necessary for the preservation of the property in question, and that of the community, to have the dam built owing to the neglected condition of the locks of the canal. That he had expended, togethi r with his costs in the construction of the dam, one thousand one hundred and thirty-three dollars and fifty cents, and that the St. Louis, New Orleans and Ocean Canal and Transportation Company was therefore justly and truly indebted to him in the said sum with legal interest from judicial demand, and that in consideration of the circumstances and conditions upon which the said indebtedness was incurred, petitioner had a privilege upon the canal and locks which had continued to be and were still in his possession, which outranked the rights and claims of all other parties or creditors hereto, especially the rights and claims of Wheelwright, for the reason that it was only by the expenditure by petitioner that this property was preserved for the use of the said Wheelwright or any parties having an interest therein, and therefore he was entitled to-be paid by preference and priority out of the proceeds of sale of said property to the extent of his claim over and above all creditors herein. He further represented that the property was to be sold on the 11th May, 1895, at the instance of Wheelwright, and the sheriff should be ordered to hold in his hands out of the proceeds of said ■sale an amount sufficient to pay his claim. He prayed to be allowed to intervene and file a third opposition in the premises; that Wheelwright and the Oanal Company be cited; that after due proceedings, petitioner, the sheriff of the parish of St. Bernard, have and recover from the defendant company the sum of one thousand one hundred and thirty-three dollars and fifty cents, with the recognition of privilege upon the canal property and locks, and as outranking for priority of payment all other creditors; that the sheriff be authorized to hold said amount out of the proceeds of sale and that he be paid by preference over all other creditors of the defendant.
    The. order usual in matters of third opposition of this character was granted. The property was sold, as was anticipated, and purchased by Wheelwright, the plaintiff, for eight thousand seven hun - dred dollars.
    The plaintiff, Wheelwright, answered the third opposition, pleading, first the general issue. He admitted that the sheriff did build the levee in question across the mouth of defendant’s canal, but averred that in so doing he acted under the orders of the police jury for the general public benefit, and not for the purpose of preserving the defendant’s property.
    That the reasons of the sheriff in so closing said canal were judicially averred by him in the ex parte proceedings taken in court, and that he is estopped and debarred from setting up other and different reasons. He denied that the claim of the sheriff was a valid claim, ranking the mortgage held by him, or that it was a valid claim against the canal company, and averred that it was against the police jury» under whose orders he acted.
    On the trial it was admitted that the sheriff expended the sum of one thousand one hundred and thirty-three dollars and fifty cents, of which sum the police jury advanced to the sheriff the sum of one hundred dollars, per resolution of the police jury, ordering the closing of the canal. Third opponent offered in evidence the resolution of the police jury of the parish of St. Bernard, which was as follows:
    “Whereas, the Mississippi and Mexican Gulf Oanal Company has become dangerous to the safety of the community, owing to the fact of the locks of said canal- being open, without the probability of closing them. Whereas, said property is involved in litigation as to the ownership of the same;

      “ Beit resolved, That the sheriff, who has the custody of the property by virtue of an order of court, be notified to have a dam built across the mouth of said canal company within five days from the service of this resolution; and be it further

      “Resolved, That the permission granted Albert 0. Janin, representing the St. Louis, New Orleans and Ocean Oanal and Transportation Company, to cut the levee in front of the property known as the Mississippi and Mexican Gulf tract, to connect said canal for purposes of navigation with Lake Borgne and the Mississippi river, be and the same is hereby repealed; and be it further

      “Resolved, That the sum of one hundred dollars be hereby advanced to the sheriff to be used for the purpose of closing said canal, the sheriff not having the means; the sheriff having declared ■that he has no means in his hands with which to do said work.”
    This order to the sheriff was followed immediately by a petition addressed by him to the District Oourfc, as before stated, and on this petition the order was granted January, 14, 1898.
    The sheriff, on the 81st of January, 1898, entered into a contract with one Harmon, a contractor, for the- construction of the work ■under the supervision of the sheriff and the State Engineer delegated ■to the district. It was admitted that the work was done, and that the ■expenses for the same amounted to the sum claimed by the sheriff, also that from November, 1891, until the 11th of May, 1895, the defendant’s canal was in possession .of the sheriff under writs of attachment at the suit of Guiehard and others.
    Wheelwi’ight made his first appearance in the State Oourt on the seventh day of June, 1895. The sheriff, as a witness, testified that ■“he had charge of the canal as sheriff; that the canal connected the waters of Lake Borgne and the Mississippi river, the head of the canal being on the latter river, and there supplied with locks. These locks had been opened, and could not be closed, were only partly closed, and -could not prevent the Mississippi river from flowing through them, because they were out of order; the canal property was not properly preserved, but neglected by its •owner; there was sediment between the locks; in the condition they were in they were not capable of resisting the high water of the Mississippi; it was necessary to build the dam to prevent the ingress of the river water. Judging from the condition of the locks, had not the levee been built before the approaching rise of the river a crevasse would have been the result. The crevasse would have destroyed part of the locks and filled up the canal, and destroyed some of the lands. It might have required after that a horseshoe levee, which would have put the locks inside of the Mississippi river; it would have hurt the surrounding community.”
    When the sheriff’s examination as a witness had reached this point his counsel asked him whether, at the time these repairs were made by him, the canal property was in imminent danger of being destroyed or seriously affected in value by these causes, but before an answer was given an objection to the question was made and sustained, the objection being that the sheriff was judicially estopped from setting up any proposed danger to the canal as the cause for his action in building the levee across it, it appearing by the judicial averments in the proceedings offered in evidence by him that the police jury ordered the closing of the canal, because it had repealed the privilege granted to cut the levee, and because it considered the canal, in its then condition, as liable to injure the public, and the judicial proceedings taken by the sheriff showed that he asked the permission of the court to carry out the instructions of the police jury, and that he had no ide.a in his mind and no intention of preserving the property itself or of benefiting the owner.
    The examination being resumed, the sheriff stated that the condition of the locks was threatening danger at that time, and acted as a menace to the general community. That about one mile on both sides of the property would have been overflowed from the river to the lake. That the menace to property arose from the locks being opened, which would have caused the waters to wash through them —the main cause of danger was attributable to the defective condition of the locks and of the canal property itself. He would not otherwise have put up a dam; the expenditures made by them in their extent were absolutely necessary.
    On cross-examination he stated that the canal property was in ■ the same condition when it was delivered to him in 1891 as it was when he delivered it to Wheelwright, saving the closing of the - canal. The wheels on the bottom of the gates were out of order; if the pressure of. the water had come against the gates it might have closed or broken them — probably have broken them.
    It was admitted by both parties that the testimony of the sheriff would have been corroborated in all its details by the president of the police jury, the inspector of levees for the Board of Commissioners for the Lake Borgne Basin Levee District, and two other named witnesses. The District Court rendered judgment in favor of the third opponent against the St. Louis, New Orleans and Ocean Oanal and Transportation Company for one thousand one hundred and thirty-three dollars and fifty cents, with legal interest, and decreed that it be paid by preference and priority out of the proceeds of the sale of the property of the defendant company' over all other creditors of the defendant. The District Judge stated in his opinion that a careful consideration of the pleadings as well as of the facts convinced him that the police jury never intended to have the work done at their expense; but that the notice was served upon the sheriff as custodian of the property, and not as agent of the police jury, who could, in case of refusal or neglect of the owners, have caused it to be done through their proper officers. That in view of this fact and of the dangerous condition of the canal locks and gates and of the dangerous consequences, not only to the surrounding country, but particularly to the property under seizure, the sheriff applied to the court for authority to spend and disburse for account of the canal company a sum sufficient to defray the expenses to be incurred by the building of a dam across the canal; that he was then of opinion that the sheriff should have been allowed to prove that the works were useful and necessary for the protection of the said defendant’s property; that the evidence showed that the canal locks or gates were in a much damaged and dangerous condition; that the consequences of an overflow would have been disastrous to the property, and that the expenses incurred were useful and necessary.
    The plaintiff, Wheelwright, appealed.
   The opinion of the court was delivered by

. Nicholls, 0. J.

The claim of the sheriff for his disbursements is presented to us by way of third opposition, to be paid by preference over that of Wheelwright or any other creditor of the defendant, out of the proceeds of the sale of the latter’s property, expected to take place shortly after, in execution of a judgment obtained by the plaintiff, Wheelwright, against it. The property expected to be sold, and which was, in point of fact, sold, as had been anticipated, was the same property which the sheriff then held, and had held, in his possession under writs of attachment in the different suits of Janin, Ousachs and Guichard, against the company. Janin discontinued his suit. Guichard obtained judgment. What ultimately became of Cusach’s claim is not shown. While the property was-under attachment in the aforementioned suits, and before Wheelwright (who held a mortgage superior to any right held by either of the attaching creditors) had made any appearance in the-State court looking to the foreclosure of his claim, the sheriff was notified by the police jury to construct a dam across the mouth of the canal, as the condition of its locks and gates was such as to be a menace to the community, and he was informed one hundred dollars had been advanced by the police jury to him for that purpose. The condition of the locks and gates of the canal at the time he took the same into-his possession under the attachments was the same as it was when he received the notification just mentioned. Up to that time no request had been made of the sheriff by either of the attaching creditors or by the owner of the property to take steps looking to the-protection of the canal property from the supposed danger. As the levee in front of the locks'had'been cut by express permission of the police jury, and the State itself evidently contemplated that this should be done (see acts 1869, page 108), the sheriff was without authority to replace the levee even if he had supposed the property in-his charge was likely to be injured by the continuance of the then existing condition of affairs. It certainly was no part of his official-duty to have closed the mouth of the canal. The first steps taken by the police jury in the matter of the canal was the repeal- of the ordinance by which the levee was-cut and a notification of the same-coupled with an order to close the gap made not upon the owners of the property, but upon the sheriff, upon a recital, erroneous in fact, that the ownership of the property was in litigation. The sheriff-upon receipt of this notification and order substantially transmitted it to court, which at once gave the ex parte order on which the sheriff relies. Neither the attaching creditors nor the canal company were consulted in the matter, nor was Wheelwright, the-mortgage creditor, he having as yet made no appearance in the State courts. In his application to court the sheriff admitted, he was without authority as sheriff to make the outlay of money which would be needed for the purpose of constructing the dam, and that he had no funds wherewith to do the work. He applied to the court for authority to make the needed disbursements, stating that they w«re to be made for account of the defendant company, and the authority to him was to that effect. He evidently did not look to the attaching creditors as to be bound for these disbursements as part of the costs of their -suits, or as outlays for which they were in any manner bound to him. The property was not sold in execution of Guiehard’s judgment, and there has never been any attempt to tax these disbursements as costs of suit. O. P. 551; Ellery vs. Gouverneur, 3 Martin, 607. We do not think that the police jury itself contemplated that the funds needed for the building of the levee should be supplied by the sheriff under orders of court. It “ advanced ” itself under the terms of its resolution one hundred dollars for the purpose, and it is more than likely that it would have supplied the whole amount necessary had not the course pursued by the sheriff been adopted. We think from the wording of the resolution that it looked to the sheriff as to be the executive officer of the jury for the construction of the dam directed to be made. Had the police jury directed the resolution and order to the sheriff as the 'representative of the owner, its-language would have been different. It would have been a notification of the repeal of the privilege of having the levee in front of the locks open,, coupled with an order to close the mouth of the canal, and a declaration that if this were not done the jury would have the same done at the expense of the owner. Art. 661 of the Code of Practice, found under the heading of Execution of Judgments, declares that “ until the sale the sheriff is authorized to make such disbursements as are necessary for their preservation (the property referred to in prior articles), or eyen for their cultivation or clearing, if things seized consist of lands or plantations,” but the extent of this authority and the circumstances under which it is to be exercised and the effect of its exercise as to different parties is not specified. In Owens vs. Davis, 15 An. 26, the duties of the sheriff were referred to in connection with the supposed obligation of insuring the property seized, and this court said: “It was not the intention of the Legislature to impose on the sheriffs of the State the duty of insuring perishable property in their possession under a seizure and a contrary interpretation would greatly increase the responsibility of sheriffs as well as the costs of litigation and lead to general' inconvenience throughout the State. As the sheriff was not authorized as the legal agent of the seizing creditors, nor invested by law with authority to effect insurance on the steamer, his charge for a return of the premium paid can not be allowed as costs of suit. The relations which exist between the sheriff and seizing creditors are created by express law and not by custom or usage. The sheriff may be authorized as the agent of the creditors in effecting insurance on the property seized, but then he acts as mandatary and not in his official capacity.” We think that the official obligation of the sheriff to make certain outlays and his official responsibility in case of his not doing so were there referred to as furnishing a fair test of his right to demand payment of the amount expended as being properly taxable as costs of suit. *If, in point of law, the .amounts were not chargeable as costs we do not think the court’s ex parte order could make them so. Pandelly vs. His Creditors, 1 An. 23; C. C. 3198. We are of the opinion that the sheriff was not called upon in the discharge of his official duty to close the canal, and therefore his right to reimbursement, if allowed, must rest upon some other basis than that of costs.

The sheriff, however, maintains that having acted under orders of court and made a construction which, in point of fact, was necessary for the protection of the property, every consideration of equity requires that Wheelwright, who purchased the property, and to whose benefit the work enured, should be made to reimburse him, and that he should not be allowed to enrich himself at the sheriff’s ■expense, but the rule of equity here referred to is not necessarily to be invoked by the sheriff. It may well be that he should be reimbursed, and the reimbursement not be made by the present plaintiff. Oases are constantly occurring in various forms where one man gets the benefit of another’s labor and money without being made to pay for it. A joint owner, for instance, frequently escapes responsibility, though deriving advantages from his co-owners’ outlays. A mortgage creditor is often in position to legally profit by the expenditure of others. Penn vs. Citizens Bank of Louisiana, 32 An. 193, is a case of that kind. Railroad vs. Turcan, 46 An. 160, is another illustration of the facts stated. It has been held that a favor, a convenience, a benefit, can not be forced upon a person against his will. (28 Pac. 215, 216.) The mortgage creditor in this case was not consulted about the placing of the dam across the canal, and he has the right to stand upon the exact results, which the law makes the consequences of the situation.

What would have been the legal situation of the parties had the canal property not been under seizure at the date of the passing of the police jury’s resolution, when that body, having granted the company a license or right to cut the levee, thought proper, in view of the public danger, to withdraw it, and ordered it closed? On oef two things must have followed: either the company would have closed it under contracts made by itself, or, on the company’s refusing to close it, the jury would have itself caused it to be closed either by parties acting directly under the supervision of its own officers or by a contract made with some third person to do the work. If the company had done the work the rights of the plaintiff would not have been interfered with. If either the jury itself or a third party, by contract, had done the work, neither the one nor the other would have had a privilege under Art. 8249 of C. C. (par. 4) for the price of construction, unless the claim was duly registered so as to have effect against an existing mortgage, assuming that the claim itself was one demandable against the the owner. It is not pretended that the sheriff’s claim was ever registered. If this be so, we do not think that the fact that this work was .ordered by the police jury when the property was under seizure, and that the party doing the work was the sheriff, through a contract with a third person, enlarges the rights of the party doing the work so far as it would go to affect the right of the mortgage creditor.

A question was asked of counsel from the bench, whether, under the decision in Railroad vs. Turcan, 46 An. 160, the owner of the property could be made responsible for the construction of a levee on his front, whether the cost of such a construction would not have to be met by either the State or the parish? Counsel replied that the situation of this particular property was peculiar; that the entire levee had been taken down under a license from the parish, and that on the continuance of the privilege becoming dangerous to the community it was the duty of the company to reinstate matters at their own expense, and if they would not do so, it could be done at their cost. That, furthermore, this construction. was scarcely to be classed as a levee, as it was a mere temporary construction to be hereafter removed. There is certainly force in what is • said as regards the personal obligation of the owner in this case to save the community from danger from the exercise of its special license, but 'this may be admitted without touching the question as affecting the rights of mortgage creditors. As matters stand it is questionable whether the dam could be removed without further action on the part of the public authorities. Constructed under their supervision, we must assume, for the purposes of this litigation, that it is a “ levee.” We think there is error in the judgment appealed from.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the intervention and third opposition of E. E. Nunez, sheriff of the parish of St. Bernard, herein be and the same is rejected at his costs in both courts, with reservation of.any rights he may have against the parish of St. Bernard, or otherwise.


author: Wateins, J.

text:
    No. 11,897.
    Lazar Mihojevich vs. Mrs. R. Bodechtel.
    Slanderous epithets are not always actionable. An exception to the general rulé-is found in the case of a single woman, eighty years of age, suffering from a real or fancied wrong, who mates use of vile epithets as a means of defence. The damages occasioned thereby are more seeming than real, and the cause of action may be appropriately relegated to the domain of damnum absqu& injuria.

    APPEAL from the Civil District Court for the Parish of Orleans.. Bightor, J.

      W. S. Parkerson and L. P. Paquet for Plaintiff, Appellant.

      Samuel L. Gilmore for Defendant, Appellee.
    Argued and submitted March 11, 1896.
    Opinion handed down March 23, 1896.
    Rehearing refused April 6, 1896.
   The opinion of the court was delivered by

Wateins, J.

The plaintiff claims five thousand dollars damages of the defendant for defamation of character and slander. The cause was tried in the lower court by a jury, who rendered a verdict for-the defendant, and, after an unavailing effort to obtain a new trial, the plaintiff has prosecuted this appeal.

The plaintiff is the proprietor of an oyster saloon and barroom situated at the corner of Felicity and Dryades streets, in the city of New Orleans, and rents the building in which he prosecutes his business from the defendant, who is a single woman of about the age of eighty years.

Some trouble arose between the two, growing out of their relations of landlady and tenant, with reference to the latter keeping a horse in a stall quite close to the sleeping apartment of the former; and this resulted in an open rupture between the two, and the employment of the harsh, abusive and opprobrious epithets which the defendant employed, and of which plaintiff complains as being slanderous, and injurious to his good name and reputation, and tending to bring him into public comtempt and ridicule.

True it is that such'words as “ dirty rat ” and “ thief ” and “swindler,” thief ” and “ rát,” are bad enough in their way, and little suited to ears polite; but under all the circumstances surrounding this case we do not feel disposed to give them the significance that, is claimed for them by plaintiff’s counsel. On the contrary, we are disposed to regard them as the irate and impulsive utterances of an old woman, whose only means of defence against a fancied or real wrong, which she had suffered at the hands of the plaintiff, was an unruly and mischievous tongue.

In this view of the case we are of opinion that plaintiff’s damages are more imaginary than real.

His counsel were frank enough in their aguments before the court, at the submission of the cause — and they were eloquent and persuasive — to make the statement that their client did not demand: smart money, but a nominal judgment to serve as a vindication of his character.

This statement when taken in connection with our own observations leads us to the conclusion that the affirmance of the judgment would be ample vindication. Bigney vs. Van Benthuysen, 26 An. 38; Goldberg vs. Dobberton, 46 An. 1303; Fulda vs. Caldwell, 9 An. 358; Artieta vs. Artieta, 15 An. 48; Young vs. Bridges, 34 An. 336; Johnston vs. Barrett, 36 An. 320.

Judgment affirmed.


author: Nici-iolls, O. J.

text:
    No. 11,953.
    Succession of Jacob Von Hoven.
    Sales made in succession proceedings by orders o£ court are judicial sales; adjudicatees at such sales can not be made to occupy the position of parties purchasing through conventional sales.
    Mere concurrence of opinion among heirs as to some of the details to be followed in the making of judicial sales has not the far-reaehmg consequence of altering the legal character of the proceedings. Sales made in the course of proceedings for a partition do not constitute the partition. .They are incidents of the partition, means leading to the ultimate judicial adjustment of rights.
    Under Sec. 18, Act No. áO of 1877, there is but one single “first insertion ” in a judicial advertisement, all others following the “first” are “ subsequent insertions.” The doctrine of “ alternate first insertions,” by malting the advertisement non-con-seeutive, and charging each first insertion of a renewed advertisement as .an “ alternate first insertion” is not sustained bylaw.
    The fees of an auctioneer are regulated by R. S., Sec. 160, when property is sold by order of court to effect a partition the fee of one per cent, on all sums under twenty-five hundred dollars, and one-half of one per cent, on all sums over that amount.
    A PPEAL from the Oivil District Gourt for the Parish of Orleans. Rightor, J.

      Benjamin Biee Forman for Executrix and Succession, Appellee.

      Chas. F. Claiborne for Wm. A. Kernaghan, Opponent, Appellant.
    Argued and submitted March 9, 1896.
    Opinion handed down March 23, 1896.
    Appeal by William A. Kernaghan, auctioneer, from a judgment of the District Court, dismissing an opposition filed by him to the account of Mrs. Annie M. Yon Hoven, as executrix of the succession of Jacob Von Hoven.
    Statement oe Facts.
    Yon Hoven died leaving two daughters of his first marriage and a widow. He left a will, by which he bequeathed to the latter certain real estate and personal property, and appointed her- executrix of his estate, without bond, but without seizin. She accepted the ex-ecutorship and qualified. In 1893 the executrix, joined by one of the heirs, presented a petition, to which they annexed a detailed statement of the estimated debts of the estate, and alleged that the outstanding accounts and movables would not realize enough to pay the same; that it was necessary to sell the property to pay the debts, because the movables and money left were given as a particular legacy to the-widow; that certain real estate was acquired during the community; that one-half thereof belonged to the widow, the other half to the heirs of Von Hoven; that the petitioners were unwilling to hold the property in indivisión with the other heir. In view of the premises, they prayed that that heir be cited; that enough of the property described be ordered to be sold to pay debts, and that a decree be made for a partition of all the property of the succession not sold to pay debts, and not including the legacy to the widow.
    The heir cited answered, raising a number of issues and contesting the correctness of the statement of debts filed,"but expressing her willingness to have a partition and division of the property and admitting that it could not be divided in kind. She herself prayed that there be judgment decreeing a final partition of the estate by licitation.
    The District Court rendered a judgment ordering “ that a partition be granted, and to that end all the real property described in the inventory be sold at public auction with the exception of that which has been bequeathed to the widow, said sale to be'made by W. 'A. Kernaghan, auctioneer, who shall sign an act of sale upon the terms of one-third or more cash, at purchaser’s option, and the remainder on credit at one and two years, with 8 per cent, interest and the usual security clauses; that the funds arising from said sale be deposited in the judicial depository, and the executrix do immediately thereafter file her account; that the issues not herein disposed of, raised by plaintiff and defendant, be postponed and reserved to be tried and decided by way of opposition to the said account.”
    On the 28th day of May, 1894, the attorney of the executrix, and-one of the heirs, Mrs. Englebreeht, and the attorney of the second heir, Mrs. Muller, agreed “ that the property of this succession should not be advertised in French, as required by law for judicial advertisements, but shall be advertised in lieu thereof in the Picayune and Times-Demoor at daring the period required by law; also, that this waiver of the French advertisement shall not in any way be held as abandoning the present judicial sale; also, that the advertisements should be changed at the proper time so as to describe the lots after the plans are made thereof, or in any way that the auctioneer thinks best to the interests of all parties; also, that the auctioneer is to spend one hundred and fifty dollars in judicial advertisements in other cities of the property in question.”
    On the 31st of the same month counsel of Mrs. Miller, suggesting to the court that the judgment of the Supreme Court had been rendered affirming the judgment of the District Court and that the auctioneer declined to carry out said decree and advertise the sale of the property, obtained from the court an order that the auctioneer be ruled to show cause why he should not advertise and sell the property under the judgment aforesaid, or on failure so to do, why the sheriff should not be ordered to make said sale instead. The trial of the rule resulted in an order of court ordering the auctioneer within five days of the date thereof to sell the real property of the succession, and on failure so to do that the civil sheriff be ordered to make said sale in his. stead. The auctioneer obeyed the order given, advertised the property for sale and finally sold it at public auction, the total amount of sale being thirty-three thousand six hundred and forty dollars.
    The executrix filed an account and tableau of distribution on which she placed as the amount due to W. A. Kernaghan, the auctioneer who made the sales of the property, the sum of- four hundred and fifty dollars and seventy-nine cents, of which she declared two hundred and thirty dollars had been. paid.
    The auctioneer opposed the account, claiming one thousand three hundred and sixty-seven dollars and fifty-seven cents as being due to him, with legal interest from July 18 (the date of the sales) until paid.
    The District Court dismissed the opposition and opponent appealed.
   The opinion of the court was delivered by

Nici-iolls, O. J.

Opponent’s contention that the sales made by him were not judicial sales is not tenable. The property was advertised to be sold and was sold under an order of court “ in the matter of the succession of Jacob Von Hoven.” Bids were offered and accepted and adjudications made on the faith of such being the character of the sales. Ajudicatees at those sales would be entitled to the full protection of the consequences flowing from them as being judicial sales and could not be made to occupy the position of parties purchasing through conventional sales, a position entirely different from that resulting from judicial sales.

It is claimed that the sales were not “ succession,” but “ partition ” sales, and that as partition sales they were “voluntary” or “ agreed sales ” between the parties in interest.

Article 1294 of the Civil Code defines a voluntary partition, as “ one made among all the co-heirs present and of age, and by their mutual consent.” The parties interested in this succession were of age and present, but it is a mistake to suppose they were agreed among each other “as to their respective rights.” Issues of most serious character were raised betweenthem and submitted for adjudication to the District Court. It is true that all parties recognized the necessity of a partition, and that that partition was to be effected by litigation; also that there was no difference of opinion as to the terms of sales, but the sales made in the course of the proceedings did not constitute the partition; they were incidents of the partition, means leading to the ultimate end, the judicial adjustment of rights. It is an error to suppose that a mere concurrence of opinion among heirs as to some of the details to be followed in the making of the sales has the far-reaching consequence of altering the legal character of the proceedings. The succession of Von Hoven is still under administration; the very proceeding is evidence of that fact, for this case comes to us on appeal from ah opposition filed by appellant to the account of the executrix. In the opinion heretofore rendered by us all issues between the parties were ordered to be referred for adjustment to the final account to be filed by the executrix.

The sales made in this ease were for the double purpose of paying the debts and determining the rights of the widow and heirs. The mere form in which these matters have been presented works no change in the fact that they are forced legal proceedings. But the “agreement” among the heirs and the widow in this case on which opponents relies brought no change in the manner of proceeding from that required by the judgment of the court. The parties agreed that the French advertisement should be omitted, but this agreement was not carried out, for upon the refusal of the auctioneer to advertise he was ruled into court to show why he should not be made to do so, and he was ordered to proceed under the judgment, and that order he obeyed by making publication both in French and English. There was, therefore, no departure from legal requirements upon which any one could base a legal objection to the sale. The agreement referred to authorized “ the auctioneer to change the advertisements at the proper time, so as to describe the lots after the plans are made thereof, or in any way that the auctioneer thinks best to the interest of all parties,” but in no respect was this authorization made use of to change the situation from what it should have been had it not been written. The action of the auctioneer in describing the lots as he did and making the sales thereof as he did was not a deviation fromthe orders of the court. The judgment did not direct the auctioneer to sell the properties in block, and had he acted in the exercise of his own judgment as to what was best to be done in the premises independently of any “ agreement ” or authorization to him to do so, his course would have been sustained had he carried it to execution without opposition or objection from the parties concerned. We are not called on here to discuss what the legal effect would have been by way of resistance or avoidance had the auctioneer, by reason of a consent between heirs to waive a formality made necessary by the law to be followed, omitted this formality nor who could have taken advantage of it. Were such objection taken it would be made to rest precisely upon the ground that the sales ordered to be made were “ judicial sales ” and could legally be made as nothing else. Opponent can raise no issue as to the character of the sales; he had no interest in the property before the same and has had none since. In Haché vs. Ayraud, 14 An. 174, this court held that a sale to effect a partition under a decree of the court must be made to the highest bidder at public auction and that it was a judicial sale. The defendants in that case admitted the propriety of a partition by licitation. In the Succession of Macarty, reported in the 32 An. page 7, the auctioneer who made the sales in that proceeding presented to this court propositions very similar to those pressed on us here, but these views were not sustained by the Supreme Court. The court in that ease was called to pass upon the question of the commissions to which an auctioneer was entitled. The suit was a partition suit in which one of the heirs was a minor. The District Court allowed the auctioneer two and a half per cent, commissions on the shares of the majors, but reduced it on the-minor’s share.

An examination of the transcript in that case shows that eighteen different pieces of real estate were sold by the auctioneer. Testimony was adduced to show that two and a half per cent, was the usual and reasonable charge made by auctioneers in the parish of Orleans on the amount of sales of real estate, including partition sales.” The court quoting See. 160 of the Revised Statutes said its provisions were plain; that the property sold was alleged to be and was sold by the auctioneer as succession property, and moreover he himself acknowledged that it partly belonged to a minor; that for these reasons he could legally charge on the entire amount of the-sale the lowest of the commissions fixed by law. The sale of the property having amounted to forty thousand dollars, judgment was-rendered in favor of the auctioneer for two hundred and twelve-dollars. The decision in that case controls this in respect to the commissions chargeable. The next question is as to the costs of' advertisements. It will be noticed that the claim on this account is presented, not by the proprietors of the newspapers as amounts due to them, but by the auctioneer as being an amount due to him.

It will be further noticed that the executor and heirs acquiesce in. advertisements as having been properly inserted in the Picayune and the Times-Democrat. Had the claims been placed on the account as-due to those papers themselves, the fact that they were entitled to some extent to remuneration would be admitted, as the heirs raised no issue as to the propriety and legality of the particular paper in which the insertions were made. Had matters been shaped as we have supposed, under the circumstances stated, the New Orleans Bee-(the French newspaper) would have been driven to an opposition as having been entirely left out. Upon such an opposition it would have been clearly entitled to be paid some amount. The debatable question would have been the amount to which it was-entitled. The law itself requiring a French advertisement," and the auctioneer having been under the order of court (rendered, after the agreement between the parties had been made) directed to sell under the judgment, it was his duty to have conformed to the law. The newspaper having rendered legal services-could not have been cut off from legal remuneration through an at* tempted substitution of a newspaper in its stead as the medium of advertisement. -As matters stand actually, though the names of the Picayune, the Times-Democrat and the New Orleans Bee figure in the discussion, the matter really in dispute is one as to amounts to be paid rather than the person to whom they are to be paid. The papers themselves have, we presume, been settled with and matters are now confined to the executors, the heirs and the auctioneer. As between those parties we are of the opinion that the auctioneer was authorized only to advertise in two papers. The agreement in question, on its face, limited the number of papers to two. The selection of the Times-Democrat and the Picayune as those in which advertisements were to be placed was based directly upon a contemplated •exclusion of the New Orleans Bee, and when it became necessary for •the auctioneer to abandon the agreement and fall back on the provisions of the law itself the agreement ceased to have any effect on that point. It could be relied on only according to its terms and by its terms only two papers were to be advertised in. The next question is as to the number of insertions which the auctioneer was authorized to charge for. The succession of Yon Hoven is a wealthy one and it is perfectly obvious that the contention between the parties is one in which really only the executor, the heirs and the auctioneer are concerned. We have said that the auctioneer could not have been justified while acting.under orders of a court (by reason of any private instructions to him by the heirs or executor or both) to deviate from the requirements of the law, but it is perfectly consistent with this to say that those parties could, in matters wherein none other than themselves would be concerned, authorize an auctioneer to do something more than was required of him by law, and make themselves personally responsible to him to the extent that they would become so by reason of their instructions. We think the agreement between the heirs and executor, communicated to the auctioneer, justified him as between themselves to insert advertisements a greater number of times than was called for by law, though nothing therein justified him in altering rates. The heirs and executor authorized the auctioneer to change the advertisements in any way he thought best to the interest of all parties. He thought it to' their interest to publish the proposed sales more frequently than was required by law. They were present, presumably saw the advertisements, ' made no opposition thereto, and raised objections 'Only after they had derived all the benefit of the same. We think ■objections on that score come with bad grace. If the situation of the succession were otherwise than it is, the auctioneer, of" ■course, would have to rely exclusively upon the parties outside of the succession funds. We think the rates charged for the advertisements entirely unwarranted. The law is perfectly plain on that subject. The charge for judicial advertisements is seventy cents a ¡square for the first insertion and twenty-five cents for each subsequent insertion, whether made consecutively or not. There is but a single first insertion in a judicial advertisement; all others, following the first are “subsequent insertions.” The doctrine of “alternate first insertions,” reached by making the advertisements non-eon-secutive and charging each first insertion of a renewal advertise•ment as an “ alternate first insertion,” maybe satisfactory to the newspapers, but not to litigants, and is sustained by no law.

We are of the opinion that the auctioneer is entitled to one per cent. commission on twenty-five hundred dollars, and one-half per cent, on the amount of the sales above that sum. By this rule he is entitled to one hundred and eighty dollarss and seventy cents, instead of one hundred and sixty-eight dollars allowed him by the District Court; that he is entitled for advertisements in one paper for sixteen squares, for the first insertion, eleven dollars; sixteen squares-at twenty-five cents for eight insertions, or thirty-two dollars, making a total of forty-three dollars and twenty cents; and for advertisements in a second paper for eighteen squares, for first insertion, twelve dollars and sixty cents, and eighteen squares at twenty-five-cents for ten insertions, or forty-five dollars, making a total of fifty-seven dollars and sixty cents.

The account therefore would stand:

Advertisements. $100 SO-

Commissions.. 180 70

Hospital tax. 168 20

Exchange fee. S3 64

Editorial notice. 6 00-

l3lan. 6 00

Copy of order of court.

Total. $496 09

instead of four hundred and fifty dollars and nine cents, with legal interest from September 27, 1894, until paid, and costs.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the opponent, William A. Kernaghan, have judgment in his favor on his opposition, ordering that he be placed on the account of the executor as a creditor for the sum of four-hundred and ninety-six dollars and nine cents, instead of for the sum of four hundred and fifty dollars and nine cents, with legal interest thereon from September 27, 1894, until paid, and that he-recover costs in both courts upon his opposition.

      The 18th section of Act No. 49 of 1877 declares that the “ costs of such advertisements shall not exceed in the parish of Orleans the rate of seventy cents per square or fraction thereof for the first insertion and twenty-five cents for each subsequent insertion; * * * one square to consist of the space of one hundred words solid matter. If such newspaper refuses to publish at the rate herein specified, the advertisements shall be published in the manner above provided for in •cases where there are no newspapers.”
      Art 1117 of the Civil Code (in force at the time of the passage of the act just ^quoted from) is as follows:
      “When the advertisements shall be published in the newspapers they shall be 'inserted th'ee different days before the expiration of the term fixed by law, if the ■term be of ten days, unless it be in the places where the newspapers do not appear •often enough to repeat the advertisement as many times as is required by this •article, iii which case it will suffice if the advertisement be inserted as often as the gazette appears during that time.
      “ For those advertisements for which the term of thirty days is fixed, it suffices if they are published in the newspapers, as above prescribed, once a weelc during that time.”
      By Act No. 104 of 1878, relative to judicial advertisements in the parish of Orleans, it was enacted that “judicial advertisements should be made by publication in a •daily paper on three different days before the expiration of the term fixed by law ■of the term of ten days, and for those advertisements for which the term of thirty •days is fixed, it suffices if they are published in a daily paper once a week during that term, and that all laws and parts of laws conflicting therewith were repealed.”
      By Act i\o. 86 of 1880 judicial advertisements were required in the parish of Orleans to be also inserted iu the French language in a daily newspaper published in that language precisely in the same manner, for the same number of times, and on the same terms as by existing laws were required, or might.thereafter be required, for the protection of judicial advertisements in.the English language. —Reporter.

       Section 160 of the Revised Statutes: “ No auctioneer shall demand or receive a higher compensation for his services than a commission of two and a half per •cent, on the amount of any sale, public or private, made by him; and on sales of succession property, of property belonging to minors, or in which they may he interested, and on property surrendered by insolvents, made pursuant to an order •or decree of any court of the State, by the sheriff, or an auctioneer, upon all sums under twenty-five hundred dollars, one per cent., and all sums over that amount one-half of one per cent. In all sales made by the representatives of a succession, or syndic of an insolvency, they shall charge no commission.” — Reporter.