text:
    No. 1025.
    The School Board of Union Parish vs. J. E. Trimble.
    The school board of the Parish of Union could not, in accepting the accounts of their treasurer, allow him certain charges in violation of law. Their action was ultra vires in that respect, and not susceptible of ratification. The settlement made and discharge granted by them, under such circumstances, is not conclusive and may be assailed and set aside,, at tbe suit of tbeir successors in office, under charges of error and fraud. And the ex-treasurer cannot set up the plea of estoppel, under the facts of tbe case.
    When Defendant could, by his own testimony, prove the existence of a certain fact, which is-particularly to his own knowledge, and he fails to do it, the presumption is against him that the fact does not exist.
    When both parties have announced that their evidence is closed, tbe court, in its discretion,, may grant to either party the privilege of introducing further proof, but it is not a legal right, that can be claimed as such.
    When an attempt is made to discredit a witness -by showing that he made a contradictory statement on a previous occasion, it is not sacramental that the exact time of the alleged contradictory statement should be designated: it is enough that sufficient reference is* made to the circumstances that attended the statement, and to the statement itself, so as to place the witness fully on his guard.
    Testimony is admissible to prove the sworn statement of a deceased witness, made in a previous suit between the same parties, when said statement does not contradict the official acts of the deceased witness.
    ApPEAL from the Third District Court, parish of Union. Graham, J.
    This case was argued and submitted at Monroe and, by agreement of Counsel, was decided at Opelousas. .

      Geo. A. Kilgour, Jr., and Allen Barksdale, District Attorney, for Plaintiff and Appellee:
    First — Parish school boards are vested with power to do those acts specified by law or those acts necessary to carry out specified powers and duties, and no others,
    Second — They cannot by any act of theirs allow and ratify an illegal claim for salary, commissions, &c., on the part of their secretary and treasurer, so as to estop their successors from reclaiming amounts thus allowed. Uor can they ratify an act done by the treasurer which it would be illegal for them to do in the first instance. 32 An. 901.
    Third — Fío member of a parish or district school board could be paid any compensation. Sec. 26, Act Ko. 6, Extra Session, 1870. And secretary and treasurer’s salary could not exceed one hundred dollars per annum after 1870, and this amount could only be paid out of local or parish school funds. Sec. 1, Act No. 8 of 1871.
    Fourth — A settlement by a school board with an outgoing treasurer will be avoided on proof that said treasurer did not account for all monies going into his hands, and that credits were allowed for claims the school board was without authority to make.
    Fifth — Proof that a school treasurer in a settlement claimed credits for himself, not permitted under the law, and received said credits for his own benefit, is proof of fraud.
    Sixth — Beopening a case for further evidence is in the discretion of the Court, and where the application was oral and did no.t show any necessity for reopening the case, the application was properly refused, and especially is this true where a party waited till all his opponent’s witnesses were discharged before asking to he heard further.

      John Young and Boatner & Liddell for Defendant and Appellant, and J. E. Trimble, propria persona:

    First — An amended petition, changing the issues or making averments in derogation of plaintiff’s rights, as alleged in the original petition, ought not to be allowed.
    ¡Second — The action of officials representing a public body, should be received in evidence to control the subsequent pretensions of the body.
    Third — A public officer is not a competent witness to prove the falsity of his official certificate.
    Fourth — When by law it is made the duty of an officer to examine the accounts of those entrusted with public funds, he is by law an expert, and his opinion after such an examination is admissible in evidence.
    Fifth — A witness, introduced to impeach the testimony of another by proving that statements have been made out of court contradictory to those given in evidence, must be rigidly restricted to those contradictory statements to which the particular attention of the witness sought to be impeached has been directed. Uor can the declarations oí the impeaching witness be treated as original eyidonce, for the purpose of establishing any part of the case of those urging the impeachim nt, because it is hearsay.
    Sixth — The testimony of an attorney already engaged in a case, is entitled to but little consideration, when offered to impeach the testimony of a witness sworn for the opposite party, by showing that the witness made contradictory statements, to the attorney, to those given in evidence on the trial.
    Seventh — "When a settlement has been made, the balance agreed upon, paid over and a receipt given, it cannot be set aside except on clear proof of error and fraud.
    Eighth — G-ood faith is always presumed; but fraud and error never is, but must be clearly established beyond doubt.
    Bfinth — It is only such error as caused by artifice of one party that will enable the other party to annul a final settlement.
    Tenth — When a settlement is attacked for fraud and error, only such items can be subject to correction, in respect to which the proof of fraud and error is conducive.
    Eleventh — The rules of law respecting error and fraud, apply alike to a public officer, a private individual, or a private corporation.
    Twelfth — The doctrine of estoppel applies to the State and to corporations created by it. 28 An. 121, 460; 30 An. 711.
    Thirteenth — The judgment should respond to the issues presented by the pleadings.
   The opinion of the Court was delivered by

Todd, J.

This case was argued and submitted at the recent session of this Court at Monroe, under an agreement that it was to be decided at Opelousas.

The defendant was Secretary and Treasurer of the Board of School Directors of the parish of Union, and a member of the board from 1870 till sometime in 1875. In the year last named, a new board was appointed, and with such appointment defendant’s membership and official relation to the board terminated. This succeeding board appointed a committee to examine the accounts of the defendant as treasurer of the previous board, and make a settlement with Mm. This was done, the settlement made and approved, the reported balance in his hands paid over, and a discharge granted him.

In 1877 new directors were appointed, who instituted an investigation into the accounts of the defendant as treasurer of the first board mentioned, the result of which was the bringing of this suit. The purpose of this suit is to annul and rescind the settlement and discharge referred to, and recover of the defendant $16,099 06, the aggregate of several amounts, alleged to have been improperly allowed him in the settlement, with interests on the same. The nullity of the settlement and discharge is demanded on grounds of error and fraud, set forth in the petition. An amended petition was filed, and properly allowed, setting forth in greater detail the errors, frauds and illegalities in the charges relied on.

The defendant answered by a general denial, averred that the settlement was just and legal, specially denied the charges of fraud and error, and finally pleaded that the discharge was conclusive, and the plaintiffs estopped from going behind the same and making inquiry into matters embraced in such discharge and the settlement preceding it. The plea of prescription was also filed. This plea was sustained, and the suit dismissed; but on ah appeal taken to this Court, the judgment was reversed, and case remanded. It was then tried, and judgment rendered against the defendant for $3066 80 with interest; and from this judgment the present appeal was taken.

I. This being an action for the rescission of a settlement between a school board and an officer thereof, and of a discharge given the officer after such settlement, it is clear that, as these acts and proceedings of the board related to a matter within the scope of its authority, the settlement and discharge in question must be presumed correct, and held as conclusive, both as to the board making the settlement and its successors, unless the acts complained of were in violation of the provisions of the law bearing thereon, or done in fraud or error; and to annul them on such grounds, the causes of nullity must be clearly and satisfactorily established.

It is elementary that all contracts and agreements of whatever kind or description are vitiated by fraud or error. C. 0.1819,1817. And we know of no distinction recognized by law between the contracts and agreements of private individuals and those of public functionaries, acting in a fiduciary or representative capacity. In regard to the latter,— public officers, — another principle is of special application, that their acts may be invalidated, if, although within the scope of their general powers, they were done in violation of some positive law or prohibitory statute; or, in other words, were clearly ultra vires, and of such a character as not to be susceptible of ratification. While recognizing that the power of corporations or public bodies, such as school boards, to make settlements with their officers, implies and includes a certain discretion in deciding what are and what are not proper and legal items in an account, such discretion cannot be extended so far as to cover allowances in direct violation of- positive prohibitory laws, too plain and clear to admit of doubt-or question. The members and officers of such bodies are bound to take cognizance of such prohibitions, and to know that any action in violation of them would be absolutely null and void, and afford no immunity or protection.

The Board of School Directors is an important feature in the system of public education established by the State. It is the instrumentality by which or through which the school funds, which constitute the very life of the system, are administered and disbursed. Their duties and responsibilities are strictly fiduciary in their character, are clearly defined, and carefully guarded by law.

The board of directors.are the trustees; and the beneficiaries of the trust are the educable children of the State. The spirit and terms of the legislative enactments on the subject show that the purpose of the law-maker was to secure a faithful discharge of the trust, and the most economical administration of the funds upon which it depended. The fraud and error charged, as grounds for rescinding the settlements in question, were alleged to consist of illegal charges, overcharges, concealments and misrepresentations on the part of the defendant, by which the board of directors was deceived; and in error, thus induced, made the settlement with him, and granted him his discharge.

The theory of the plaintiffs with regard to this settlement is this: That, with a view to such settlements, the defendant made out certain statements or accounts, covering all his receipts and disbursements as treasurer of the 'board, for the whole term of his office; that these statements or accounts were submitted to the board, and formed the basis on which the settlement was made; and that, on their very face, the accounts afforded evidence of the alleged frauds practiced, and the errors caused by such frauds. The theory of the defence, on the contrary, is, that these statements or accounts did not serve as the basis of the settlement, and had little or no connection therewith; that they were not taken into consideration by the committee making the settlement, nor by the board; but that the settlement was made solely from the treasurer’s books, warrants and vouchers, produced by him on the occasion. These conflicting theories raise an issue which has an important bearing on the controversy, and one which has been treated, in the argument as the vital question in the case. Its importance is enhanced by the fact that all the books, vouchers, warrants and papers connected with defendants administration of the school fund, and which could afford light on the subject of this settlement, except the accounts or statements mentioned and a few receipts, have all disappeared, without any satisfactory explanation being given of the cause or manner of their disappearance. If these statements or accounts were rendered to the board of directors, and the settlement with the treasurer of the board was made with reference to them, and the investigation had at the time was for the purpose of determining whether these accounts should be allowed or not, then it might not be difficult to ascertain by an examination of them, in connection with the evidence bearing on the charges and items which compose them, and the law regulating such charges, whether the settlement was a correct and proper one, or was amenable to the imputations of fraud and error charged against it. If, on the contrary, these statements or accounts were never rendered to the board; were never considered or used in the settlement; had no bearing on or connection with them, but the settlement was made entirely from the lost books, warrants and vouchers of the treasurer, then, it is easy to see that it would be impossible for any court to determine the character of that settlement and decide whether it was legitimate and proper, or, on the contrary, was fraudulent and illegal.

We are, therefore, compelled, at the very threshold of our investigations, — as was the court below, — to determine this question. To enable us to do so, we have made a thorough and searching examination of the evidence in the record, bearing on this point, which is to some extent conflicting, and this evidence, in connection with other considerations, to be hereafter mentioned, leaves no doubt on our mind that these statements or accounts were made out and prepared by the defendant for the express purpose of the settlement, were submitted to the board, and served as the basis of the settlement.

The reasons for our conclusion are simply these:

The accounts or statements are in the handwriting of the defendant, and purport to cover the receipts and disbursements of the school funds for each ward of the parish, for the entire time that he served as treasurer of the board. It was the duty of the treasurer to account to the board for his administration of the fund; and specially was it important, if not indispensable, that such account should be rendered for the purpose of making a settlement with the board. A settlement with an officer by the board that appointed him, — an officer holding and disbursing public moneys, — necessarily implies an account or accounts rendered by him. A settlement made without such account, would certainly be an anomalous proceeding. Therefore, when we And such accounts in the handwriting of the officer, embracing the whole subject-matter, respecting which, it was his duty to account, and the accounts (or statements) were not shown to have been present' at the settlement, and were found in possession of the successor to such officer, we would naturally conclude that they were used in the settlement made with him. The regular order of such proceeding would certainly be first, the rendition of the account or accounts, and next, the verification of them by the entries in the books or by receipts, warrants and vouchers. And in a settlement made in this manner, the account or accounts rendered would certainly be held the basis of the settlement. In addition to this, however, when we consider that the balance shown by these accounts or statements, as then being in the hands of the defendant, increased by two amounts indorsed on one of the statements, and, taken in connection with certain receipts signed by him, make up the exact amount which the board recognized as due by the defendant, and which he subsequently paid over to his successor, no reasonable doubt can exist as to the correctness of the conclusion stated. There is another circumstance, in this connection, of peculiar significance, confirmatory of this conclusion. It is this: as stated, the question whether these accounts or statements were rendered by the defendant, and constituted the basis of the'settlement, was a vital one in the suit, upon the determination of which its result mainly depended. The defendant denied that such was the fact. The real truth touching the issue presented was better known to him than to any living person, and, perhaps, known to him alone. He was on the stand twice as a witness in the case. He and his counsel seemed to have had the keenest appreciation of the important bearing of this question. He had but to open his lips and swear that these accounts or statements were never submitted to the committee or board ; were never regarded or treated as the basis of the settlement; and such positive sworn testimony from him would have settled the matter; but, instead of being thus enlightened by the defendant, when the best of opportunities was given him to do so, we find his lips entirely sealed on the subject. It is impossible for the human mind — judicial or non-judicial — not to conclude that, as a witness, he failed to speak on this vital point because the truth, i£ spoken, would have been fatal to him and his defence. Nor can the effect of his silence in this matter be destroyed by the assertion made, that he would have testified with reference to it and favorably to himself if the judge a quo had consented to open the case after the evidence had been closed, and permitted him to take the stand, for the third time, as a witness. And, inasmuch as the ruling of the judge in this respect is complained of, it is but proper that we should consider the bill of exceptions taken to such ruling in this connection.

The record shows that the trial of the case was protracted during two terms of court; that a great deal of testimony was taken ; that the defendant was twice on the stand as a witness, and testified on each occasion ; that the evidence on the part, both of the plaintiffs and defendant, was formally closed on Saturday evening and duly noted on the minutes ; that on the following Tuesday the defendant moved that the case be re-opened, in order that he might give further testimony, which was objected to, and the motion refused by the judge a quo for the reasons stated by him and appearing in the bill. These reasons are to the effect: that all the plaintiff’s witnesses had been discharged several days before, and had gone home ; and that to permit the further testimony of the defendant would be unjust to the plaintiffs ; and that the defendant did not inform the court upon what subject he desired to testify, so as to enable the court to judge of the importance or necessity of the evidence. The ruling was entirely correct. Our construction of the law on this point is this : That, after both parties to the suit have announced that the testimony is closed, and this announcement has been formally recorded, neither party-has a legal right to introduce further evidence; but the privilege of doing so rests entirely within the discretion of the judge — a discretion to be exercised according to the peculiar circumstances of each case, and solely to further the ends of justice.

In the same connection, we notice two bills of exception taken by the defendant to the admission of testimony bearing on this same point, touching the consideration given to the accounts or statements of defendant, by the committee that made the settlement with him.

A member of that committee was called as a witness by defendant, and testified that these statements did nqt form the basis of the settlement. Another witness was called by the plaintiff to prove that the previous witness had made an entirely different statement to him. The testimony of this last witness was objected to, on the ground that the proper foundation had not been laid for discrediting the first witness, by interrogating him as to the time, place and subject-matter of the alleged contradictory statement. The rule of law undoubtedly is, that a witness must be plainly informed with regard to such alleged previous statement, so that there may be no possibility of his mistaking the conflicting statement referred to, and which he is charged with having made. It is not sacramental that the exact time of the alleged statement should be designated, so that it appears that sufficient reference is made to the circumstances that attended the statement, and to the statement itself, its language and substance, as to apprise the witness clearly of what is referred to, and place him fully on his guard. Though the precise time a1 which the alleged contradictory statement was made, was not plainly designated in this instance, yet the mention of the place and occasion, and what the statement was, substantially fulfilled all the requirements of the law; and the discrediting testimony was rightly admitted, and properly given the effect it was legally entitled to receive.

The other bill was to the admission of testimony to prove the sworn statement of another member of the school board, who died after the settlement, made in another suit, where the same.issue was involved, as to the manner in'whieh the settlement was made, and that it was to a great extent based on statements made by the defendant. The objection was, that if the witness were alive, he could not be permitted to contradict his official acts. The witness could not have been heard to deny that a settlement had been made, or the amount found due thereon, or any other material fact shown in said settlement, which he had officially recognized in writing; but this rule could not be extended to preclude him from telling the manner in which the investigation was conducted, or describing the process and means by which the conclusion had been reached, and the settlement effected. And to this extent only the statement of the deceased witness went; and it was, therefore, properly admitted.

II. Having disposed of these questions touching the issue raised with respect to the accounts or statements of the defendant, found in the record, and their bearing on the settlement made; and having reached the conclusion that they were so rendered with a view to such settlement, and formed the basis on which it was made, we come next to inquire in regard to the character of these accounts and the charges therein made, and to determine whether, in connection with other evidence in the record, they warrant the conclusion reached by the District Judge, that the settlement was so vitiated by fraud and error and illegalities as to justify its rescission and the judgment rendered by him in consequence of such conclusion.

In dealing with this subject we are greatly aided by the carefully prepared opinion of the judge a quo, evincing patient research and a close and critical examination of the various charges and items that composed the account and entered into the settlement. If, in the administration of the school funds entrusted to his charge, the defendant applied portions thereof to his own use or benefit or to other purposes unwarranted or prohibited by law, and in his accounts illegally claimed credit for such unauthorized or forbidden disbursement, which the board approved and allowed in contravention of the plain terms of the statute defining their powers, duties and responsibilities, such acts and proceedings would, of themselves, constitute a constructive fraud on the part of both the board and its treasurer. Besides, if, in making this settlement, the parties plainly and palpably transcended the authority conferred on them by the terms of the statute, defining and regulating their powers, whether such acts were fraudulently or arbitrarily done, they would be ultra vires, and for such'additional reason stricken with nullity under the views and conditions we have heretofore expressed. C. C. 438, 439.

The board of school directors, of which the defendant was a. member and an officer, was but the agent of the State for the administration and disbursement of this trust fund, and its faithful application to-the purposes and objects to which it had been consecrated by law, for the ' benefit of those for whom it was created. No part of this fund belonged to the board or its officers, and they had no right or authority to touch one cent of it except to appropriate it to the objects to which the law devoted it. The provisions of that law were their sole guide, and by its limitations and restrictions they were absolutely bound.

We will proceed to subject the alleged illegal charges in the accounts or statements rendered by the defendant and allowed him by the board, to the test of these plain and recognized rules, which should govern all settlements of this kind.

Though in the petition the aggregate of the alleged errors charged are made to swell up to a very large sum, yet in the argument before this Court, the contest has been narrowed down to a few particulars. These are: 1st. As to sums shown to have been received by the defendant from the State, and never accounted for at all in the settlement, or not legally accounted for. According to our computation, these sums amount to $900 32, including the deficits in the several different funds, as classified or distinguished by the statute. Of this total, the sum of $661 45, the defendant alleges in his answer and argues in his brief, was the amount of the discount on the warrants which he received and which represented the “ interest fund.” And the evidence renders it probable that it was so represented to the board at the time of the settlement, and for this reason was allowed. Yet, upon the trial of the case in the court below, though the issue was made with regard to it, there was not a particle of evidence offered to establish the claim of the alleged discount; and the defendant, who, of course, must have known the fact, if it existed, was entirely reticent on the subject when giving his testimony as a witness. Under these circumstances, it was improperly allowed him in the settlement, and the court a qua rightly so held. The records of the Auditor’s office, an abstract of which is in evidence, show the amount the defendant received in warrants, and with which he should have been charged in the settlement, and is properly chargeable now, in the absence of any evidence that he realized a less amount for them than their face value.

2d. $869 12 was allowed the defendant in the settlement for contingent expenses, which were explained by a member of the committee which made the settlement, and who was sworn as a witness on the trial of the case, to mean compensation to the treasurer “for trouble had by him in getting the money and disbursing same;” and the further sum of $703 92 allowed for his salary as secretary and treasurer during the term of his service, and further amounts, aggregating $417 44, were allowed him as commissions on the sums disbursed by him; the total allowances on these several accounts amounting to $1990 48.

Respecting the item for contingent expenses aboye stated, the judge a quo in his opinion uses the following language, which we fully indorse:

“ It also appears from the said written statements of defendant that he claimed credit for contingent expenses for each year from 1870 to 1875, inclusive, aggregating $869 12, and that this was allowed him in the settlement. According to the evidence of Balton, it was for receiving and disbursing the funds. This allowance by the board was illegal and null, and, if not a fraud, was an unwarranted use of the public funds. The necessary contingent expenses of the board should have been allowed and paid, as the law directs, upon the warrant of the President of the-board, drawn upon the treasurer. But, in the country, the contingent expenses of such a body are very small, if anything at all. They generally meet in the courthouse, or some office, without charge; and it is a fact known to every one, whoever observed such things, that there is absolutely no expense attending such boards. All blank forms, blank books, etc., are furnished by the superintendent of public education at the public expense. Yet the school board paid it, without any warrant of law, for receiving and disbursing the public school fund. It was some trouble, doubtless, to receive and disburse the funds;' but when the defendant became a member of the school board, he incurred the obligation of performing all the duties of that position without any other compensation than that allowed to any other member of the board as provided for by law. The law allows no such compensation.”

It is very evident that this claim for contingent expenses, as well as the other items last enumerated, were really claims for compensation; and were allowed in direct violation of law, which, in express language, forbids such compensation. Act 6, Sec. 26 of 1870; Act 8 of 1871. It is true, that the Act of 1870, which contains the prohibition, was amended by Act of 1871, by which the treasurer might receive and the board allow compensation for his services, but it could not exceed $100 per annum, and it must be paid out of the local or parish school fund. It appears in this case there was, at no time during the term of service of the defendant, any local or parish fund, which is a fund derived from a local or parish tax, as provided by the school laws; but these entire amounts were retained by the defendant out of the general or State funds. No comment is necessary to show the illegal and fraudulent character of this claim. It is impossible not to see the palpable infraction of the law in its allowance.

3d. There are seven receipts in the record, given by the defendant individually to himself as treasurer of the school board, covering sums amounting in the aggregate to several thousand dollars. In the settlement, he was allowed credit for the entire amount. The law expressly requires that all such disbursements, if proper or really made, should be evidenced by warrants drawn by the President of the board on the treasurer; but, notwithstanding the irregularity of such vouchers, they were all allowed by the board, and this allowance was not rejected by the court a qua on the trial of this case, except as to certain items amounting in the aggregate to $176. The entire falsity of the receipts to this extent was shown to the satisfaction of the judge a quo, who struck out the credit claimed therefor, and we see no reason to doubt the correctness of his conclusion in this respect. The balance of the credits claimed under these singular vouchers, were allowed because there was no evidence to disprove their reality, and the main credit covered by them was admitted by plaintiff’s counsel.

These several sums rejected from the settlement, as illegally allowed by the board, make up the amount of the judgment rendered by the lower court against the defendant.

III. In regard to the plea of estoppel, set. up in the answer and strenuously urged in argument, there might be great force in it, if the premises on which it is based, were correct and well founded. For instance, if it were a fact that the board of school directors made a full and final settlement with the defendant and gave him a complete discharge, and then took possession of his books, papers and vouchers, and withheld or lost them, and, after such action on their part and after waiting for years, they brought suit to rescind the settlement made and discharge granted, we repeat, there would be much force in the plea, under such a state of facts. But such are not the facts. The settlement was made and the discharge given, it is true, but it is a matter of dispute as to whether any books and vouchers and warrants were produced at the settlement, and if any were produced, what they consisted of. Be this as it may, it is quite certain there is no evidence of any personal delivery by the defendant to the board of any books or papers, or of their taking them into their possession, with the exception of the statements or accounts referred to, on which the settlement was made, and the seven receipts mentioned, which were subsequently found in the keeping of the secretary of the board who succeeded the defendant. On the 'contrary, the evidence leaves no doubt that the books were, subsequently to the settlement, taken to the office of the defendant, and were, presumably, in his possession; and, by his own testimony, it is shown that all or a portion of his vouchers or warrants he carried with him to New Orleans. What finally became of the books, warrants, &c., is a profound mystery. The defendant certainly gives no satisfactory account of their loss, nor did he do so in response to the proceedings taken against him to compel their production. In the condition the matter stands, the defendant can claim nothing in his favor on account of the disappearance of these books and documents.

We are satisfied, from the evidence in thefrecord, that this school board matter and defendant’s connection with it, and the settlement made, were subjects of great public interest in the parish of Union, as well as of great personal interest to the defendant. If these books and papers were the means of his protection and vindication against popular clamor and criticism, as well as against personal liability, in the event of an attempt to disturb the settlement, which, surely, under the circumstances, might not seem to him improbable, it might well excite surprise that some care was not taken by him to preserve these books, documents and evidence, which, according to his theory, in the contingency that might arise and, in fact, did arise, would prove of such inestimable value to him.

There certainly was no possible malice or intent on the part of the • board to destroy these documents, and it is impossible to believe that public functionaries would play such a part as to destroy or withhold the documents and then take measures to compel the defendant to produce them. The defendant cannot certainly avail himself of the circumstance of this loss, to claim an immunity from suit when viewed in the most favorable light to him, the evidence fully satisfies us that he at least contributed to the loss by his own laches or utter indifference. Besides, as to this question of estoppel, we are thoroughly satisfied that the books and all the vouchers in the world could not save him from liability, for nearly the entire amount adjudged against him. From what we have stated above, it appears that almost the whole judgment was for illegal charges for compensation and the discount claimed on the warrants. As to the former, no voucher or written evidence of any kind could justify or legalize such charges; and, as to the latter, we cannot presume that any missing document could supply more satisfactory proof than the defendant, as a witness, could have furnished by his own testimony, if the fact was that the warrants had been discounted as represented.

IY. There were several more bills of exception taken to the admission and exclusion of evidence, but from the views expressed, it will be to those conversant with the record, apparent that the questions raised by them have little or no bearing in the determination of the case, and the consideration of them becomes unnecessary.

Y. There is a motion to amend the judgment, filed by plaintiff, by increasing the amount thereof. This ’ motion is supported by an ingenious statement and calculation, which apparently establish the proposition embraced in the motion; but after a thorough examination and re-examination of the evidence on the points suggested, we are not fully satisfied that there is error in the judgment to the plaintiff’s prejudice, but conclude that substantial justice has been done in the matter, and that the judgment should not be disturbed.

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


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1013.
    Loeb & Bloom vs. Julius Arent et als.
    On Motion to Dismiss.
    Appellees seek to recover judgment against Appellants for 8234, and to annul a transfer of property made by Appellants for more than $1000. Held that the matter in dispute is the right of Appellees to submit the property to the judgment for $234, and that this Court has no jurisdiction.
    ApPEAL from the Third District Court, parish of Union. Graham, J.

      W. R. Rutland for Appellees.

      Jas. A. Ramsey for Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiffs move to dismiss this appeal on the ground that the matter in dispute is not appealable to this Court. The object of the suit is to recover judgment in the sum of $234 84 against the defendant Arent, and for the nullity “ as to its effect ” on plaintiffs, of a transfer of property acknowledged to exceed in value the sum of one thousand dollars, made by the defendant Arent to his co-defendants, D. Stein & Co., who have taken the present appeal from a judgment against them.

They contend that the issue presented by the pleadings is the validity or the nullity of the transfer to them by Arent of property worth more than one thousand dollars, and that, therefore, they have an appealable interest in the suit.

The test of our jurisdiction is to be found in the nature of the relief sought by plaintiffs, and the pecuniary amount of the effect which may result therefrom to appellants.

Plaintiffs do not seek to absolutely annul the transfer complained of, but seek to avoid its effect as to themselves. In other words, their object is to subject to their judgment of $234 84 the property of their debtor, alleged to have been fraudulently transferred to appellants.

The relief which they seek,-is defined by Art. 1977, C. O., which provides that “the judgment in this action, if maintained, shall be that the contract be avoided as to its effect on the complaining creditors, and that all the property taken from the original debtor’s estate, by virtue thereof, or the value of the property to the amount of the debt, be applied to the payment of the plaintiff.”

It is, therefore, clear that the only issue between plaintiffs and appellants is the right of the former to enforce the execution of their judgment of $234 84 against property held by appellants and acquired by them from Julius Arent.

It is equally clear that we can render no judgment under the issues presented, which could affect these appellants in any sum exceeding the amount of plaintiffs’ judgment, exclusive of interests and costs ; and we cannot escape the conclusion that the matter in dispute is not within our jurisdiction, and that the motion to dismiss must prevail.

It is, therefore, ordered that this appeal be dismissed at appellants’ costs.


author: Fenner, J.

text:
    No. 1017.
    The State of Louisiana vs. Henry Jackson.
    Evidence of the dangerous character of the deceased, in a charge of murder, is not admissible in justification of tlxe accused, on account of threats and hostile demonstrations made by the deceased prior to, and disconnected from, the time of the killing, unless followed by some assault or hostile demonstration on the immediate occasion of the killing, tending to produce upon the mind of the accused the impression that he was in instant danger, which could only be averted by the killing of his adversary.
    APPEAL from the Third District Court, parish of Union. Graham, J.

      Allen Barlcsdale, District Attorney, for the State, Appellee.

      G. H, Bilis and G. A. Kilgour for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a conviction and sentence for manslaughter. The error complained of, is presented by two bills of exception, one to the refusal of the judge to admit evidence offered to prove the dangerous character of the deceased, and the other to the refusal by the judge of a new trial on the same ground.

In the arguments, oral and written, of counsel, large latitude was taken in the statement of facts bearing on the question.

Of course, we are strictly confined to a consideration of the facts as stated in the bills of exception signed by the judge. We epitomize these as follows: Defendant and deceased had a quarrel in the evening. There was no physical collision, but deceased was in a violent passion, and entered his house and got his gun, threatening to shoot the defendant, but was disarmed and prevented from doing so by his wife and a neighbor. To a proposition of defendant to settle the matter, deceased replied that it could only be settled with shot-guns, and that he would take defendant’s life before daylight. Defendant thereupon left, went to his own house, some one hundred yards distant, and thence went to the house of his employer about a quarter of a mile off. While there, he received a message that deceased had been to his house with his gun and inquired for him, and was waiting on defendant’s road, ready for his return; and a witness also testified that he had seen the deceased sitting, with his gun, on that road. Defendant then borrowed a shotgun and started off, not exactly in the direction of his own house, came to where the deceased was, near his (deceased’s) house, and shot him down. The evidence showed that, before the time of the killing, deceased had returned to his own house, had put his gun away, and was out near his house, when the defendant came up and shot him. At the time of the killing, deceased was not making any attack upon defendant, and was not doing any act indicating his intention to carry into-effect his threats to take defendant’s life.

Under this state of facts, the judge rejected the evidence offered by defendant to prove the dangerous and desperate character of the-deceased, on the ground that “ the evidence showed that there was no actual attempt or act, on the part of the deceased, at the time of the-killing, to carry into effect the threats he had made against the defendant, or to indicate, at the time, an intention to carry into execution said threats.” Eor the same reason, the new trial was refused.

It is manifest that the character of deceased, however desperate, could not afford the slightest justification for killing him under the circumstances above disclosed; and as evidence of such character is only received in exceptional cases, as an element of justification, the evidence was properly rejected.

We know of no case in which it has ever been held that threats and hostile demonstrations prior to and disconnected from, the time of the-killing, could lay the foundation for the introduction of such evidence, unless followed by some assault or hostile demonstration on the immediate occasion of the killing, tending to produce, upon the mind of the accused, the impression that he was in instant danger which could only be averted by killing his adversary.

Whatever reason defendant had to believe that the deceased was his implacable enemy and intended to kill him, the law did not justify him in anticipating the attack, in taking the law into his own hands, and in shooting deceased down on sight, without waiting for any demonstration of immediate hostile intention. In such case, -if defendant would avert a danger to his life, threatened, but not instantly impending, he had the opportunity, and it was his duty, to invoke the interposition of the law, which affords appropriate redress under such circumstances. If he prefer to avoid the aid of the law, and to rely upon his individual right to repel attack, he must wait until the attack is made or attempted, before he can exercise such a right. Wharton, C. L., <S 487. “ The belief that a person designs to kill me,” says Chief Justice Ruffin, “will not prevent my killing him’ from being murder, unless he is making-some attempt to execute his design, or at least is in apparent situation so to do, and thereby induces me to think that he intends to do it immediately ” — meaning, by situation, that, “ by some act or demonstration he indicates, at the time of killing, a present intention to carry out such purpose.” State vs. Scott, 4 Jud. Law, 407; Harrison vs. State, 24 Ala. 67; Wharton’s C. L. 493.

Manifestly, the dangerous character of the deceased could, in no manner, alter or affect the application of these principles, and evidence-thereof was irrelevant and inadmissible, under the circumstances of this case, for any purpose.

There is absolutely no conflict of authority as to the correctness of the judge’s ruling, and it is confirmed even by the cases quoted by defendant’s counsel. 5 An. 589; 9 An. 46; 10 An. 453; 12 An. 679; 21 An. 473; 29 An. 593; 30 An. 341, 679; 31 An. 302, 379; 32 An. 1084, 1098,1177.

Judgment affirmed.


text:
    No. 1114.
    F. P. Stubbs vs. J. E. McGuire, Sheriff, et al.
    . On Motion to Dismiss.
    In a suit in which the Plaintiff claims $964, and the defendant admits his indebtedness to the amount of $600, the matter in dispute is the difference between these two sums, and the case is, therefore, not appealable.
    A seizing creditor, whose judgment, for $964, is enjoined, cannot, upon dissolution of the injunction and rejection of his claim for the statutory damages, appeal to this Court on the ground that the damages, added to the amount of the judgment, make up the appeal-able sum.
    APPEAL from the Fifth District Court, parish of Ouachita. Richardson, J.

      Talbot Stillman and H. H. Russell for Plaintiff and Appellee.

      J. T. Ludeling and J. H. Dinlcgrave for Defendants and Appellants.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

A statement of the leading features of this case is necessary to a proper understanding of the motion made by plaintiff for the dismissal of this appeal, on the ground that the amount in dispute is under our jurisdiction.

In 1879, plaintiff bought of W. H. & B. T. McEnery their interest in a tract of land known as the Magenta Plantation, situated in the parish of Ouacbita.

Among other considerations stipulated in the act of sale, the purchaser assumed the payment of a mortgage affecting the property sold, securing the payment of five promissory notes, amounting together to-$1029 84, held by Miss M. H. Hemkin, and recognized by judgment rendered on the confession of her debtors.

A portion of the land thus purchased by plaintiff, having been-seized under a writf of ft. fa. issued in execution of Miss Hemkin’s judgment, plaintiff enjoined the sale, and urged among other grounds, that, the writ should have been credited with the sums of $200, $225, and $41 95, paid at divers times on account of said judgment; and he further alleged that Miss Hemkin had agreed with her debtors, his vendors, to accept $600 in full satisfaction of her claim, in capital, interests and costs; and concluded by tendering the payment of said sum.

For answer, the defendant admitted the credits alleged by plaintiff, and specially denied the agreement under which it was alleged that she had consented to accept $600 in full of her claim, and concluded by praying for the dissolution of the injunction, with twenty per cent damages, and for $100 as attorneys’ fees. The judgment of the lower court dissolved the injunction, but allowed no damages to the defendant, who, complaining of that feature of the judgment, took an appeal returnable to this Court. Plaintiff, on the other hand, complaining of the dissolution of his injunction, took an appeal returnable to the Circuit Court of Appeals. Our inquiry, under the pleadings, must be directed to the question as to what is the amount in dispute in the case.

Appellant contends that, attributing the part payments, first to the interests accrued up to the date of such credits, the balance due on the judgment at the time the writ issued, was about $964, which sum with the addition of the damages prayed for, would foot up the amount in dispute over one thousand dollars.

But plaintiff in injunction does not seek to disturb the judgment in execution, and under the pleadings, we can render no decree which could in any manner add to, or detract from, the scope and binding effect of that judgment, the amount of which could not, therefore, be invoked as a test of our jurisdiction.

Plaintiff acknowledges an indebtedness of six hundred dollars, and no more, on the mortgage and judgment assumed by him, under the effect of the alleged agreement, between his'vendors and their creditor, Miss Hemkin.

Defendant denies the existence of such an agreement, and contends that her claim amounts-to $964.

It, therefore, follows that the amount in dispute is the difference' between the indebtedness judicially acknowledged and admitted by plaintiff and the. amount claimed by the defendant, in other words the ■sum of three hundred and sixty-four dollars.

Admitting, for the sake of argument, as urged by defendant, that plaintiff’^ injunction, having stayed execution of the whole amount of her claim, amounting in principal to $964; and that, in consequence, that ■amount is the real matter in dispute, as well as the damages which she •claims, and which, she alleges, should be added thereto as the proper test of our jurisdiction, we answer that the damages which depend upon the theory that the injunction was wrongfully obtained, cannot be cumulated with the amount covered under plaintiff’s demand, which rests upon the contrary theory. The two elements are contradictory and cannot co-mining the appealable amount in controversy. The demand for damages on the dissolution of the injunction cannot be regarded otherwise than as a plea in reconvention, which, as a separate demand from the relief sought by plaintiff, is insufficient in amount to give us jurisdiction. We assume, as an undisputable proposition, that the object of the late constitutional Oonvention in creating Circuit Courts of Appeal was to relieve this Court of jurisdiction over suits in which the amount in dispute did not clearly exceed one thousand dollars, exclusive 'of interest, with a view to diminish our docket, and to afford to litigants in that class of cases the advantage of a more economical and speedy trial of their causes. exist; they cannot, therefore, be cumulated for the purpose of deter-

And -we are of opinion that any rulings of this Oourt, extending our jurisdiction to cases not appealable to this Oourt, beyond reasonable doubt, would defeat the object sought to be accomplished by that provision of the Constitution. In following the rules which have heretofore guided our interpretation of such questions, we have not curtailed, but on the contrary, have facilitated the exercise of the constitutional right of appeal.

In this ease, the amount in dispute is far from exceeding one thousand dollars, and hence we have no jurisdiction.

It is, therefore, ordered that this appeal be dismissed at appellant’s costs.


author: Todd, J.

text:
    No. 1012.
    Huey & Wise vs. Police Jury of Jackson Parish.
    On Motion to Dismiss.
    Tlie Clerk’s defective Certificate is cured by tlie agreement of Counsel that,' “tlie Transcript, as made out, is sufficient.”
    On the Merits.
    A judgment creditor of a municipal Corporation is not entitled to a Mandamus to compel the assessment and levy of a tax to pay his claim, when a tax, sufficient to that effect, has already been assessed and levied, but has not been fully collected. 31 An., 709.
    APPEAL from the Fourth District Oourt, parish of Jackson. Bridger, J.

      J. B. Holstead for Plaintiff and Appellant:
    When the petition shows that a judgment was rendered against a parish during the existence of the law for a special judgment tax, and that there is no provision made for its satisfaction, there is a cause of action against the police jury of the parish to cause a special tax levied and collected for that purpose. 31 An. 709, 765; 32 An. 884.

      Act Ho. 56, Extra Session of 1877, does not repeal section 3354 of the Revised Statutes, or der ing the levy of a special judgment tax.
    Any plea interposed against a mandamus proceeding is an answer, and the answer in such cases must contain all the defences intended. C. P. 842, 843; L. E. 390-9 ; 18 An. 195.
    When the answer in a mandamus proceeding is insufficient, either from the want of evidence or allegations, the writ should be made absolute.
    A tax collector cannot be forced to the collection of an illegal tax,.and a parish tax assessed in the absence of a levy by the police jury is an illegal tax. R. S. 2743, 8th §; 30 An. 1103.
    A special assessment, including a levy for other purpo ses, is illegal and a radical defect. L. E. 711-6-7, supra; and 711-4, infra.

    An assessment without a description of property is illegal, and cannot be collected. Act Ho. 34 of Extra Session 1877, section 2.
    The acts and doings of a police jury can only be shown by written evidence incorporated into ordinances.
    When a written instrument has been lost or destroyed, parol testimony can only be received to prove its contents.
    The assessment roll is the best evidence of who are taxpayers and who own taxable property.

      Richardson & McEnenj and Thomas O. Benton for Defendant and Appellee: /

    Eirst — Motion to dismiss should prevail, as certificate does not assert that the' transcript contains the evidence adduced on trial, and is otherwise fatally defective.
    Second — A mandamus cannot issue to enforce a new assessment to satisfy a judgment, whilst' an assessment for this purpose is still in existence and a large portion of that tax uncol* lected.
    Third — To force the levying of a tax above the constitutional limit, in order to satisfy a judgment, it must be shown and proved that the judgment was based on a contract.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion to dismiss the appeal is on the ground of a defective certificate by the Clerk of the District Court. The defect suggested is apparent on the face of the certificate; but we consider this cured or waived by the agreement of counsel, found in the record, which provides for the bringing up an original book with the transcript, and expressly stipulates that “ the transcript, as made out, is sufficient.”

The motion to dismiss is, therefore, denied.

On the Merits.

This is a proceeding by mandamus to compel the police jury of the parish of Jackson to levy a tax to pay the balance of a judgment held by the relators against the parish.

The judgment sought to be enforced was rendered on or about the 7th of May, 1874, for $6054 56, of which $2721 05 was to be paid by the parish of Jackson, and the balance by the parish of Lincoln. A tax of 12£ mills on all the property subject to taxation was levied by the police jury to pay this judgment soon after its rendition, under which about $1600 was collected and paid on the judgment.

' The police jury resist the levy of a new or additional tax, on the ground that 'the tax already levied was sufficient, if collected, to pay the entire debt, and that, until this previous levy and assessment was exhausted, the relators were not entitled to another one.

The evidence shows that the first assessment to pay this judgment was not enforced against all the taxpayers, who were able to pay the tax, or in other words, was not exhausted.

The issues and facts of this case assimilate it very closely to that of Duperier against the Police Jury of Iberia Parish, 31 An. 709. In that case, as in this, the judgment creditor sought to compel the parochial authorities to a new levy to pay a judgment for which provision had been made by a previous assessment, which had not been exhausted. In this decision we find the following language: “ The plaintiff should have proceeded against the tax collector to compel him to collect the whole of the assessment and levy of the three-mill tax, which had been made for the express purpose of paying her. judgment. The law provides ways and méans for the collection of taxes, and until these are exhausted, the plaintiff or relator cannot rightly demand other process for the enforcement of her claim, than that already given, and which the police jury have endeavored to effectuate by complying with the mandate of this Court to levy a tax to pay it.”

The relators complain that the assessment in question was invalid; but the fact that it was enforced to the extent of paying more than half of their debt, and that its legality was never questioned by the taxpayers, so far as the record discloses, leaves him without cause of complaint on this ground, and until such issue is presented to us by resistance on this ground, or by proper proceedings otherwise, we do not feel authorized to pass on it.

The justice of the relators’ debt has been recognized by the proper authority, and provision made for its payment. If they should pursue the remedy pointed out, and fhe provision made should prove inadequate for the satisfaction of their debts, then they may apply with confidence, under a proper showing, for the relief which we are compelled, under the state of facts shown, now to deny them.

We do not construe the judgment of the lower court as affecting in any manner the validity or existence of the relators’ claim or judgment, and of their right to enforce it by the proper proceeding; and so construing it and finding no error therein, it is affirmed with costs.


text:
    No. 639.
    H. Block vs. L. Fitche.
    A debtor, who has been adjudicated a bankrupt, under the bankrupt law of the United States, when sued in the State Courts, can interpose his plea at any time before judgment. Such defense needs not be heard in limine, under the rules of pleading of our State law.
    APPEAL from the Fifth District Court, parish of Richland. Bichardson, J.

      Boatner & Liddell for Plaintiff and Appellant:
    Eirst — After default taken, and answering to the merits, the defendant can not plead any exception which is dilatory in its nature.
    Second — After answering to the merits setting up payment, it is too late for the defendant to plead a certificate of protection from the Bankrupt Court, of which he was in possession before and at the time of the institution of the suit.
    Third — Such an exception is dilatory in its character and must be plead in “ limine litis.

    Eourth — After answer filed pleading payment and extinguishment of the debt, it is too late to file an exception that plaintiff, having proven his debt before the register in bankruptcy, cannot sue the bankrupt defendant.
    Eifth — Such an exception is peremptory only as to the form of procedure, and should have been plead in “ limine litis ” before answering to the merits.
    Sixth — The certificate of protection and discharge to the bankrupt debtor, are defenses differing in force and effect, and to be of any avail must be properly plead, else they will not be noticed. 27 An. 571 j 26 An. 41.
    Seventh — It is inconsistent with tbe plea of payment and extinguishment of the debt, to except to plaintiff’s suits on the ground that he has proven his demands before the register in bankruptcy — the pleas are contradictory.
    Eighth — The benefit of bankrupt proceeding, protection and discharge, are personal to the debtor, and may be either waived or lost like other legal rights, by improper pleading. 26 An. 41; 3 An. 208.
    Ninth — A bankrupt debtor when sued in a State Court, cannot after answering to the merits, pleading payment, ask to have the proceedings stayed, especially where his pleadings show that he has been adjudged a bankrupt nearly three years, and does not allege that he has made application for, or expects to obtain, his discharge.
    Tenth — Defendant cannot'make up the issues in a case, and then object to the court’s passing on them.

      Wells & Williams for Defendant and Appellee:
    A creditor proving his claim in bankruptcy cannot, after the*commencement of proceedings, sue the bankrupt in a State court until the proceedings -have been terminated without a discharge or after a discharge has been refused. Devised Statutes of the United States, sections 611, 5105, 5106; Bump on Bankruptcy, pages 92 and 93, 5th ed.; Shelly & Co. vs. Bayly & Pond, 32 An. 1171.

      Miller, Finney & Miller on same side.
   Tfie opinion of the Court was delivered by

Fenner, J.

Defendant is an adjudicated bankrupt whose bankrupt proceedings were pending, undetermined, at the time when this suit was instituted. Plaintiff, a creditor, after proving his debt in the bankruptcy, brought this suit. Defendant, without pleading the protection of his bankrupt proceedings, filed answer to the merits. Thereafter, before trial or judgment, he filed his plea that he had been adjudicated a bankrupt, that his proceedings were pending, the question of discharge undetermined, that plaintiff had proved his debt, and could not, therefore, maintain this suit.

The plea was sustained and the suit dismissed.

Plaintiff appeals and assigns, as error, that the plea was in the nature of a dilatory exception or of a peremptory exception founded on form of procedure, which should have been pleaded in limine litis, and could not be heard after issue joined by answer to,the merits.

State rules of pleading cannot be invoked to deprive a citizen of a right or privilege conferred by a law of the United States, passed in in pursuance of the Constitution, which is the paramount law of the land.

Article 5105 U. S. Revised Statutes expressly provides: “No creditor proving his debt or claim, shall be allowed to maintain any suit at law or in equity therefor against the bankrupt ” — -meaning, as established by judicial interpretation, during the pendency of the proceedings.

It has been held that the protection of this statute must be claimed, by special plea,, by the bankrupt, but the industry of counsel has discovered no authority holding that such plea may not be filed at any time before judgment, or that it is waived or renounced by answer, nor can such proposition be sustained.

The bankrupt, when he files this plea, simply claims the enforcement of a constitutional law of the United States, paramount to all State legislation. The State law can neither repeal this statute, nor limit its operation, nor impose conditions upon its enforcement.

This plea, in its nature, has no relation whatever to the question of indebtedness vel non. It can present no inconsistency with any prior answer, whether it admitted or denied the debt or pleaded the extinguishment thereof. Eor the maintenance of the plea, it is sufficient that the creditor should have proved “ his debt or claim,” and whether the bankrupt admit, or deny, or plead extinguishment of, the claim, does not affect the case. He has a privilege, which he may exercise or not, at his option; but we know of no law, principle, or authority, which deprives him of free option at any time prior to judgment in the suit.

Authorities are conflicting as to whether the relief, to which the defendant is entitled, is a dismissal of the suit, or a stay of proceedings.

As the plaintiff had proved his debt, we will adhere to the precedent in Shelly vs. Bayly & Pond, 32 An. 1171, which was followed by the District Judge, who dismissed the suit. In Fourchy vs. Bayly, 33 An., where we granted a stay, the creditor had not proved his debt.

We are asked to reserve to plaintiff the right to proceed against defendant upon obtaining leave of the bankrupt court.

No such reservation is necessary or proper in our present decree, which deprives plaintiff of no right accorded him by law.

The judgment of the court a qua, was entirely correct and requires no amendment at our hands.

The judgment is, therefore, affirmed, at appellant’s cost.


author: Bermudez, C. J.

text:
    No. 1028.
    The State of Louisiana ex rel. Winter & Hunter vs. The Judges of the Court of Appeals for the Second Circuit.
    The amount in dispute in this case being more than two hundred and less than one thousand dollars, the Court of Appeals is commanded by Mandamus to entertain jurisdiction and try the case. Similar to Lemle vs. Bouton, Sheriff, et al., decided at same term.
    ApPLICATION for writ of Mandamus.

      D. B. Gorham for the Relators.

      O. Mayo and W. W. Farmer, judges, Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus. The relators complain that the Court of Appeals for the Second District has, on the ground of want of jurisdiction, dismissed an appeal taken by them returnable to it.

The judgment appealed from, is one perpetuating an injunction obtained by a surety on a delivery bond for $1080, arresting executions issued on two judgments in favor of relators, aggregating $895, exclusive of interest, and subject to a ciedit of $105, and levied on the property of the surety on the bond, alleged to have been duly forfeited.

In the case of Isaac Lemle vs. J. P. Routon, Sheriff, et al., No. 998 of the docket of this Court, (33 An., p. _,) which is the suit referred to by the relators, we held that, as the matter in dispute therein, viz : the validity of the judgments on which the writs issued, did not exceed one thousand dollars in capital, the case did not come within our appellate jurisdiction, and was, therefore, within that of the Court of Appeals for the Second District.

Prom the return made to the petition, we understand that our judgment in that case is acquiesced in, and that no objection is urged against granting the relief sought. It is manifest that cases in which the amount claimed, or the matter in dispute, exceeds two hundred dollars, but not one thousand dollars, are not within the appellate jurisdiction of this Court, but fall within that of Courts of Appeals, and that where appeals in such cases are dismissed in this Court, they must be tried by the Court of Appeals, if brought up in time when returnable thereto. Relators are entitled to the remedy asked, and we can afford it. 32 An. 180; 14 L. 483.

It is, therefore, ordered and decreed that the alternative writ herein ' issued be made peremptory, and that, accordingly, the judges of the Court of Appeals for the Second District do reinstate the case mentioned in the petition on the docket of said Court, assume and exercise jurisdiction over the same, and. determine all the issues therein presented, in the manner and form provided by law.


text:
    No. 1116.
    Succession of Mélasie Hébert.
    A natural child, pretending to have been legally acknowledged by her deceased parent, can oppose the application of collateral heirs for the administration of the succession of said deceased parent, without having first "been judicially decreed to be an acknowledged natural child, as claimed. Tbe proof of parentage and acknowledgment may be made on trial of the Opposition to tbe application for administration.
    The restriction contained in Article 221 of the Code of 1825, viz: “No other proof of acknowledgment shall be permitted in favor of children of color,” having "been repealed by elimination from the Code of 1870, children of color have now, whatever he their descent, the right to prove their acknowledgment in the same manner as white children.
    Acts of baptism are public acts, which require no proof of their genuineness; and certified copies of them, made by their proper custodians, are admissible in evidenoe as well as the originals.
    A child whose parents, at the time of conception, could not contract marriage because one of them was a colored person, could legally be acknowledged after the prohibitory law was abolished.
    The mother, in this case, was deaf and dumb, and was, several years after the acknowledgment, interdicted for insanity. These reasons were also urged to show the illegality of the acknowledgment, hut were overruled by the Court.
    No administrator should be appointed to a succession which is not burdened with debts and requires no liquidation.
    APPEAL from the Twenty-Fifth Judicial District Court, parish of Lafayette. Moulton, J.

      M. & Girard for the Opponent and Appellant:
    Tlie capacity and status of an heir is to be determined by the laws in existence at the date of opening of the succession.
    The status of a child depends upon that of the mother, the child of a free woman is free, 'and the child of a white woman is white.
    Illegitimate children may prove their maternal descent and the acknowledgment of their mother by any legal evidence, for all purposes. 26 An. 99; 4 An.-305-6; C.C.212; 6 La. 57U.
    The paternal descent of a child cannot be proven to affect his right of inheritance from his mother.
    Insanity is not presumed and must be clearly proven to exist at the date of the act attacked on the ground of insanity.
    FTo law requires a manual presentation of a child at its baptism by the mother.
    The certificate of baptism in the usual form is entitled to full faith for all it contains germain to the act.

      C. Debaillon for Defendants and Appellees:
    First-Heirship of collaterals admitted and proved.
    Second — Strict proof of descent and identity of child required. 11 An. 59 ; 6 An. 161. Burden on opponent. Same authorities.
    .Third — Opponent is a bastard, R. O. O. 202; 18 An. 590, and could not be acknowledged, R. C. O. 203-204; and cannot inherit. R. O. C. 920-918; 18 An. 590; 6 An. 161; 15 An. 342. The law reprobates the begetting of illegitimate children. 38 An. 592, &c.
    Fourth — A person deaf, dumb and insane, cannot make a legal acknowledgment of a child. R. O. C. 1782-1788.
    Fifth — Baptismal registry not sufficient, when one of the parents is white and the child colored. Old O. O. 221; 21 An. 437, &c.
    Sixth — The simple Baptismal Act, without the declarations of the parents or of a duly authorized agent carries with it no civil effect. Marcadó vol. 2 p. 50, 75 ; R. O. C. 205-2987.
    Seventh — The Baptismal Act is an act under private signature, due execution of it, as well as signature must be proved before in is admitted in evidence. 22 An. p. 458; Brief, p. 6.
    Eighth — Priests are not officers, 10 An. 673. Proof that' De Chaignoz was a priest was necessary.
    Einth — Acknowledgment oí a natural colored child from a white parent cannot be established by presumption of facts. Old Code 221. Legal acknowledgment absolutely necessary. R. O. C. 918; 33 An. p. 282.
    Tenth — Proof of maternity alone not sufficient.
    Eleventh — Decision in 4 An. 305, not considered correct. See Brief, p. 11-13, and not applicable to the case at bar.
    Twelfth — There was an absolute necessity in this State to discourage the amalgamation of the white and colored race, which did not exist in France. 6 An. 161; Old Code 95.
    Thirteenth — Every claim, set up by natural children may be contested by those who have any interest therein. R. C. O. 207; 11 An. 59; Marcadé vol. 2 p. 71.
    Fourteenth — The mention in the note of evidence, that evidence was objected to, without stating grounds, is not equivalent to the reservation of Bill of Exception. 32 An. 260; Acts 1877, E. S. p. 176, requires objections to be taken down, and also ruling of the judge thereon otherwise bill must be tendered.
   The opinion of the Court was delivered by

Bermudez, C. J.

The succession of Mélasie Hebert was opened by her collateral relatives, two of whom prayed to be appointed to administer it. Their application was opposed by Emelia Hebert, representing herself as the acknowledged natural daughter and sole issue of the deceased, and averring that, in the absense of debts and charges, an administration was unnecessary and would prove onerous. She prayed that the petition be dismissed and that she be recognized as the sole heir of the deceased and put in possession of her estate.

An appearance was entered by the collaterals, in bar to the recognition sought by the opponent, charging her with being a bastard, entitled to no standing in court, previous to judicial recognition, which cannot be obtained in the form attempted.

On those issues, the parties went to trial. After hearing, the court rendered judgment rejecting the opposition, and the opponent has appealed.

The case appears to have been as warmly contested in the lower court as it was here; but the grounds for respective resistance are more easily ascertained from the course of the proceedings than from the pleadings.

We meet no difficulty in finding sufficient, nay, ample, superabundant evidence showing maternity and identity. Apart from the judicial admission of the collaterals in their answer to the opposition, the evidence shows that Mélasie was the mother and that Emelia is the daughter. No better proof could have been adduced of these two facts than the uneontradicted and unassailed testimony of the sister of Mélasie. who officiated on the occasion as midwife, who has known and followed the child from her birth to the day when testifying, she identified Emelia as such child in open court.

The contention is, that the opponent is a colored person, the illegitimate and unlawful fruit of the connection of the deceased, who was a white woman, with a man of African blood; that the opponent never was acknowledged by her mother, either in a notarial act, or in the registry of her birth or baptism; that, even had she been, the acknowledgment would be absolutely void, because made by a person insane, and violative of a prohibitory law, which forbids such acknowledgment in favor of children whose parents were incapable of contracting marriage at the time of conception, which was the case then between white and colored persons.

On the other hand, the opponent and appellant contends that she was legally acknowledged; that her mother was not insane; that,'she is not a person ofcolor; that, if any incapacity existed, as charged, to her valid acknowledgment, it lasted only until it was obliterated by subsequent constitutional and legal provisions, and that the incapacity of an heir is to be determined at the moment of the opening of the succession.

We propose first to consider the objection to the form in which the opponent has couched her demand for recognition, and neost to deal with the case in other respects.

It is a familiar principle that, unlike legitimate heirs, natural heirs are not seized of the succession accruing to them, at the death of the Be Gujus, and that the law requires them to be first recognized before they can be put in possession of the liereditas jaoens; but this requirement is not to be extended so as to prevent a natural child, by one and the same proceeding, claiming such recognition, and upon it, contingently, from opposing an onerous administration of-a succession accruing to him as an acknowledged natural child, and demanding possession.

The opponent, no doubt, had the right to have herself recognized ex parte, as is often done in practice, as the natural acknowledged daughter and only heir of her mother, and this would have satisfied the exigency of the collateral relations, of the recognition as a condition precedent to a standing in court. Instead of proceeding in that somewhat clandestine manner, she has boldly asserted her rights contradictorily with them, forced, as it were, by them to do so. She had no other alternative. She has thus enabled the claimants to oppose to her all the legal resistance in their power. They surely can have no cause of complaint.

The two grounds of the opposition of Emelia are not only not inconsistent, but, on the contrary, are perfectly concordant and can be inquired into with favor, as, otherwise, it would be driving her unnecessarily to two actions, which in the present instance are well united and can be determined by one and the same judgment. It is justly said that the law abhors a multiplicity of actions.

To decide otherwise, would be to permit the injurious dilapidation of an estate, under the eye of the party inheriting it, striking him with impotency, for the special and technical reason that he has not been previously recognized as an irregular heir. We do not consider that the law ever intended such a thing. .

We are, therefore, of opinion that the opponent was not required, in order to have a standing in coiirt, to be previously recognized judicially as the natural child] of the deceased, and that she could file her petition for recognition and oppose the administration in the form in which she has done it..

We deem it unnecessary to pass upon the bills of exception taken to the admission of evidence offered to establish the color of the opponent. ‘

Conceding arguendo that the fact charged is established, was it an impediment to the valid acknowledgment of opponent, and has that acknowledgment, if originally prohibited, continued to be such up to the death of Mólasie Hébert ?

The first objections raised are : that opponent was not, in fact, acknowledged in writing in one of the modes prescribed by the law, as it stood at the time of opponent’s birth in 1854, viz: by article 221 of the Code of 1825, and even then, that such acknowledgment would be invalid, because made by an insane person and because formally prohibited.

It is charged that, as under article E. C. C. 918 (912), natural children were and are called to the legal succession of their mother, when they have been duly acknowledged by her, it follows that, when they have not thus been acknowledged, they are not entitled to inherit from her. It is also charged that the acknowledgment of natural children was and still is required to be made by a declaration executed before a notary public and two witnesses, whenever it shall not have been made in the registry of the birth or baptism of the child; that no other proof was admissible in favor of children of color, and that no such acknowledgment could validly be made in favor of natural children, whose father and mother were incapable of contracting marriage at the time of conception.

Several of the questions presented in these objections or charges have already received judicial attention.

This Court has decided that the requirements of written recognition did not apply to white or colored children descending from white or colored parents; that the rule applied exclusively to children of color, descending from a white father. C. C. 1825; Art. 226,221,227,228; 14 L. 542; 6 An. 129; 6 L.-569; 12 E. 56.

It has also decided that, under article 230 of the samé Code, illegitimate children of every description, might make proof .of their maternal descent, where the mother was not a married woman.

In Pitot vs. Jobert, 4 An. 305, the Court distinctly said: “ The acknowledgment of an illegitimate child, which the law requires to be executed before a notary in presence of two witnesses, when it has not been made in the acts of birth or baptism, is that of the father.”

This was said in a case in which the question of color was not involved. It, therefore, settled that a white child could prove a valid acknowledgment by his mother, otherwise than in one of the modes pointed out by article 221. The Court referred to articles 221 and 230, 6 L. 570.

In the case of Hart, 26 An. 99, the Court distinctly affirmed this ruling. While we refer to this last case, we are not to be understood as admitting its correctness in all other regards.

Had not article 221 contained the further provision declaring that “no other proof of acknowledgment shall be admitted in favor of children of color,” and had not article 226 permitted illegitimate children of color to prove their descent from a father of color, only, it is manifest that under the Code of 1825, white and colored illegitimate children would have stood on a footing of perfect equality in that regard, in every respect. But what was the law relative to white children having white parents, was also the law concerning colored children having colored parents. The inhibition against acknowledgment other than written, was directed only against children seeking to prove descent from a white father.

The authorities referred to by the appellees, in 11 An. 59; 6 An. 191; 18 An. 590; 15 An. 590; 15 An. 342; 21 An. 437; are cases in which an adulterous bastard was excluded although acknowledged; in which the inheritance or succession of the father was claimed; where a marriage between a white and a. colored person was declared an absolute nullity, not requiring proceeding to be so treated; where a child acknowledged in writing was allowed to inherit from his mother; where a white father, who had acknowledged a colored child, was permitted to inherit from him. They do not show that a child recognized otherwise than in writing by the mother, was not allowed to inherit her succession.

We do not consider as shaking the authority in 4 An. 305, the dictum of Mr. Justice Preston in the case of Dugue vs. Caruthers, 6 An. 158, which was not the opinion of the three judges composing the majority. Chief Justice Eustis and Justice Slidell merely concurred in the legal results presented in the opinion and decree, while Justice Rost dissented altogether. Whatever was said in the opinion on the subject of the necessity of an acknowledgment by the mother in one of the modes pointed out by article C. C. 221, was, besides, uncalled for and unnecessary in a case in which the question involved was as to the acknowledgment by a father of his natural daughter.

The French authorities mentioned, have no application, as, in France, the law is more strict than ours, and requires that the acknowledgments, not only be made in writing, but, also, be signed by the father or mother.

The restriction contained in article 221 of the Code of 1825, invariably requiring written evidence of the acknowledgment of children of color, had previously been repealed and was not in force, therefore, at the death of Mólasie Hebert. It was expressly eliminated from the revised Code of 1870, in which the first part of article 221 was embodied as article 203. The consequence of the repeal has been to confer on children of color, whatever be their descent; the same rights to prove their acknwledgment, as have always been enjoyed by children wholly of white parentage.

The opponent contends, however, that she has proved her acknowledgment by the act of baptism. She contends that she has also proved it otherwise, as she had the right to do.

On the trial, the original entry in the register of baptism was produced in open court by the priest who was the custodian of it. On objection to its being read, a copy of it was made ahd introduced in evidence in place of the original, notwithstanding objection. The ground of objection was not, that the copy was not properly certified, but that it was the copy of an original under private signature, the signature ot which was not proved, and was the act of a third person.

The Oode attaches to acts of baptism a high and valuable importance. They are legal evidence to prove the filiation of legitimate children, when kept agreeably to law, or to the usages of the country. E. C. C. 193 (212); 958 (952).

The Code expressly makes a “ transcript,” that is a copy, from the register, valid proof for that purpose. It authorizes acknowledgments of natural children to be made by such acts. E. C. 0 203 (221), 204 (222.)

It empowers ministers of the Gospel, or priests of any religious sect, to celebrate marriages, and requires them to prepare an act of celebration of such marriages, which is to be signed by the parties, the witnesses and themselves. The acts, when thus drawn up, according to the usages of the country, or according to law, are public acts, authentic acts, which require no proof, and of which transcripts or copies can be legally made. Such acts are entitled to establish prima facie the correctness of their contents.

The lower court did not err in dispensing with proof of the genuineness of the entry in the register in which it was made, and which was brought into court by the priest entrusted with the custody of it, and who established the authenticity of the book itself." That was all that was necessary. The copy, made as it was, likewise was properly accepted. That act shows tJiat, on the 12th of April, 1855, Emelia, born on the 18th of May, 1854, was baptized as the natural daughter of Mélasie Hébert.

It is not signed by the mother, but that is no objection. The act is drawn up as similar acts are, according to the usages and rites of the Catholic Church and of the country. Had it been signed by the mother, it would be conclusive against her of the fact of acknowledgment. 12 E. 552.

But it is charged that, as the act is unsigned, the opponent should' have proved it to have been made in the form in which it exists, with the authority of her mother, direct or indirect, and that, even then,, such authority would amount to nothing, as she, the mother, was insane..

The evidence shows that, although Mélasie was not present at and did not witness the baptismal ceremony, she was in an adjoining room,, the communication door of which was open, and that she could see. what was going on. The child was presented and held by the sister of Mélasie. If the latter knew the usages of the church of her creed, she did not ignore that her name, as that of the mother of the child, would have to be given and would be inserted in the act. It is not shown that any objection was ever made by any one to the declaration, contained in the act, that Emelia was the natural daughter of Mélasie.

To pr.ove insanity, a judgment of interdiction was produced, bat it proves absolutely nothing on the question of illegal acknowledgment. It was rendered in 1861, while the baptism took place in 1855. It cannot be inferred, from the fact that Mélasie was afflicted with deafness and dumbness, that she was insane. The evidence does not show any fact from which the conclusion can be drawn. It is easy to understand, however, how the co-existence of both afflictions may have created that opinion. The evidence sufficiently shows that Emelia was treated in the family and otherwise as the natural child of Mélasie. There does not seem to be much dispute of the fact, the contention being apparently restricted exclusively to the legal effect of the acts of acknowledgment.

The next and last question presented is : Admitting that Emelia is the child of Mélasie, acknowledged by her mother as her natural daughter in a form recognized by law, can such acknowledgment produce effect in her favor, as she was conceived of a mother and a father who were incapable, by reason of color, of contracting marriage at the time of conception?

It is true that, in 1853, when Emelia was, conceived, the law prohibited the marriage of white and colored persons (C. O. 95); but that prohibition was not such as could have prevented either the father or the mother from acknowledging her as his or her natural child; She is a bastard, there is no doubt, either because her father and mother could not have contracted marriage, or because her father is unknown, but she was not an adulterous or incestuous bastard, and it is only as to such that the prohibitory law, nullifying acknowledgments of natural children, was levelled.

The difficulty on the subject is not to be solved by article 204 of the R. O. C., referred to by appellees, and which is to the effect that the acknowledgment of natural children shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception, but by article 221 of the Code of 1825, which provided that such acknowledgment shall not be made in favor of children produced by an incestuous or adulterous connexion. 'Such was the characteristic feature in the case of Fletcher. 11 An. 59.

In Compton vs. Prescott, 12 R. 56, the Court distinctly decided that, although adulterous and incestuous bastards can never be acknowledged, and although there be a legal impediment to the marriage of a white person and of a person of color, the law does not extend to their illegitimate or natural children. It, therefore, held that such children may prove their acknowledgment by a white father, when the acknowledgment was made as required by article 221; and, in support of that doctrine the Court referred to .4 La. 175, and 14 L. 545. There can be no doubt that, had article 221 of the Code of 1825 read as does article 204 of the E. O. 0., quite a different question would have presented itself.

If the validity of the acknowledgment ever was questionable, it has ceased to be such by the changes brought about by the constitutional and legal provisions since enacted. It was a dormant acknowledgment, to produce or not effect, according to the subsequent will of the lawgiver and dependent upon the contingency of its being vivified and validated.

In Girod vs. Lewis, 6 M. 559, the marriage of slaves, which could not produce any of the civil effects resulting from the contract of marriage, was declared to be susceptible of producing such effects on their emancipation. See, also, 6 L. 565.

At the death of Mélasie Hébert, in 1879, there would have existed no legal impediment to her marriage with Emelia’s father, even if he was a colored man, and the right and capacity of Emelia to inherit would have to be and is determined by the laws then in force. E. O. C. 960.

A novel and interesting question, — entirely pretermitted by the parties, could have been presented, — a question which rises superior to all the considerations elaborated in this opinion, and which is ; Whether, one afflicted, as the deceased was, with deafness and dumbness, and not shown to have known how to read and write, could be required to have been cognizant of the exigencies of the law governing the case?

Would it not be harsh, barbarous, to visit upon the innocent offspring, the consequences of the justifiable ignorance of the law by her unfortunate author ? Under the charitable maxim, Lex neminem cogit ad impossibilia, would not the law come to the relief of the opponent, and supply in her favor the acknowledgment which her mother is charged with not having made ?

It has not been shown that the estate is burdened and requires a liquidation. The opposition to the application for an administrator is well founded. 82 An. 321.

It is, therefore, ordered and decreed that the judgment of the lower court be reversed, and proceeding to render such judgment as should have been rendered,

It is ordered, adjudged and decreed that Emelia Hébert be and she is hereby recognized as the natural duly acknowledged daughter and sole issue and heir of Mélasie Hébert; that her opposition to the application for the administration of her mother’s estate be sustained and the petition therefor be dismissed.

It is further ordered and decreed that, as such daughter'and sole heir, she be put in possession of her said mother’s estate, and that the appellees pay the costs in both courts.


text:
    No. 1133.
    Gabriel A. Fournet et al. vs. Jacob Van Wickle.
    On the Motion to Dismiss.
    An Appeal taken by Motion in open court, being defective because tbe amount of tbe bond was not fixed by tbe judge, cannot be subsequently perfected by an order fixing such amount, rendered at chambers on tbe Petition of Appellant.
    APPEAL from the Twenty-first Judicial District Court, parish of St. Martin. Foritelieu, J.

      Jos. A. Breaux for Plaintiffs and Appellees.

      II. N. Ogden and A. B. Phillips for Defendants and Appellants.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

This appeal is taken from a judgmónt annulling a tax-sale.

Plaintiff and appellee, Mrs. M. Bienvenu, moves for the dismissal of the same on the ground that no citation of appeal was served upon her.

The record shows the following facts and proceedings bearing on this motion. On motion of appellant’s counsel, in open court, on November 30th, 1880, the following order was made:

“ In this case, on motion for defendant, a suspensive and devolutive appeal, returnable at the next term of the Supreme Court at Opelousas, is granted; bond for devolutive appeal fixed at $200.” On the 11th of December following, the defendant presented to the judge, at chambers, a petition for a suspensive appeal, which was granted by the judge, who fixed the amount of the suspensive appeal bond at two hundred dollars.

In that petition appellant did not pray for citation of appeal on the appellees, and none was served.

In his oral argument before this Court, his counsel argued that the order for his suspensive appeal having been granted in open court, no citation of appeal was necessary; and that the object of his petition at chambers, was to supply the deficiency of the order granted in open court, in which no amount was fixed for the suspensive appeal bond, the appeal being from a judgment which was not a moneyed judgment; and that his petition must be construed in connection with, and by reference to, the order made in open court.

It is clear that a deficient order rendered in open court cannot be modified, extended, or perfected by any proceeding at chambers, not more than an order or decree rendered in open court could be rescinded or annulled ex parte by the judge at chambers. It, therefore, follows that the order in open court, and the order predicated on defendant’s petition for an appeal at chambers, must be interpreted as two separate and distinct proceedings; the effect of each must be tested on their respective merits, and each must stand on its relative and intrinsic strength, or fall on its relative and intrinsic weakness. The two cannot be joined or combined for the purpose of making together a perfect and undivided unity. Appellee must elect on which of the two orders he rests his appeal. If he elects to abide by the order made in open court, so as to escape the fatal omission of a citation of appeal, he comes under an order granting him a suspensive appeal from a judgment other than a moneyed judgment, without fixing the amount of the bond, without which he could not perfect his appeal. 6 N. S. 316; 12 B. 187. If he relies on his petition, presented and acted upon at chambers, which is seemingly his intention, by the fact that his appeal bond refers to and is predicated upon the orders thus granted, he is met by the omission of a citation of appeal, for which he did not pray, and for which omission he is clearly responsible. 13 La. 50; 10 An. 650; 17 An. 71; 21 An. 618; 32 An. 618.

In his petition for a suspensive appeal, the defendant makes no mention of the 'order rendered in open court, which he had manifestly abandoned for the defect hereinabove mentioned; and his right to maintain this appeal must be tested under the proceedings predicated upon his petition; hence, the motion to dismiss the present appeal must prevail.

This ruling must not be construed as a bar to appellant’s right, if any he has, to perfect and prosecute the devolutive appeal granted to him in the alternative by the order rendered in open court on the 30th of November, 1880, and we render this decree without prejudice to such right.

It is, therefore, ordered that the present appeal be dismissed at appellant’s costs.