text:
    No. 1,218.
    Heirs of R. H. McGehee vs. J. W. McGehee, Administrator.
    1. An administrator is an officer appointed by the court to discharge certain duties. As such he must be considered as present before the court, in tho nature of a party in tho proceedings there pending. Prescription has no commencement in his favor, at least before tho homologation of his final account.
    2. One, who undertakes tho administration of a succession domiciled in this State, cannot exonerate himself from suit by tho heirs for the rendition of an account of his administration, “by removing his domicil and citizenship to another State.
    3. Parties who lay by for a long period of time, without assorting their claim, and who suffer tho circumstances which accompanied a transaction to fade from tho memory of tho vicinage, ought not to complain that loss rigid evidence is required, nor ought they to gain by their acquiescence, while the transaction was yet recent, and whon more complete evidence might have been obtained.
    APPEAL from the Fifth District Court, Parish of Ouachita. Híehardson, J.

      Fmnlclin Garrett, for Plaintiffs and Appellants.

      John T. Jjudeliny for Defendant and Appellee.
   Tho opinion of tho Court was delivered by

Watkins, J.

Mrs. Sarah E. Porter, and the children and solo heirs at law of Mrs. Lucinda Scott Calloway, deceased wife of John B. Calloway, deceased, of the State of Alabama, alleging themselves to be collateral heirs of Kobert H. McGehce, deceased, a citizen of the Parish of Ouachita, in this State, who died intestate in 1862, leaving some property therein, an interest in which they claim to have inherited of one-fourtli to each— that is to say, one-fourth to Mrs.' Porter, and one-fourth to the children of Mrs. Calloway — the two remaining heirs being Mrs. M. J. Phillips, of Ouachita parish, a sister, and James W.Mc&ehee, of tho State of Texas, a brother of the deceased institute this suit.

Petitioners allege that, at tho time of the death of Kobert H. Mc-Goliee there was a public inventory taken of tho effects of Ms succession in the Parish of Ouachita, and tiiat the appraisement thereof amounted to $10,468 91.

That James W. McGehee, alleging himself to be a creditor of his brother’s succession, petitioned for the appointment of himself as administrator of said succession, and secured the appointment, and executed bond as such, in the sum of $18,125, with John T. Ludeling and John L. Byrne, then of the Parish of Ouachita, as securities.

That, on the 29th of November, 1862, at the instance of certain persons claiming to be creditors of said succession, said administrator procured an order for the sale of the “negro property of said succession;” that on the 6th of December following, said property and some personal property was sold, and the proceeds of sale aggregated $4770 in cash, which amount the administrator received.

Petitioners further represent that the said administrator has never rendered and filed any account of his administration, nor paid over to them any portion of said funds.

That the succession was entirely solvent when it was opened, and free of debt; and that it owes no debts at this time.

That the administrator has in his possession said funds of the succession, and should render an account thereof, and should pay “ten per cent per annum interest on all sums received by him from a date beginning twelve months after receipt.”

They pray that said administrator be compelled to render an account, be removed from his trust, decreed to pay ten per cent per annum interest on all sums of money which came into his hands, and that they be put in possession of their respective interests in said succession.

On this petition the court made an ex parte order reaming the defendant administrator to “render a full, fair, and perfect account of his administration by the 5th day of September, 18S7” — the petition having been filed on the 24th of June previous. Of this proceeding, due notice was served on the said sureties in person, and a curator ad hoe was appointed to represent, and act for the absent defendant and administrator.

The curator filed a plea of x>rescription of five, ten and twenty years, in bar of plaintiffs’ action, and same having been referred to the merits, he filed an account of the defendant’s administration, and an accompanying explanatory statement.

To this account the petitione.rs file an opposition,- in which they set out numerous objections, and, substantially, pray for like judgment against the administrator, as in their original petition.

■ At- this stage of the cause, J. II. McGehee individually appears, through John T. Ludeling as counsel, and tenders, and causes to be filed a peremptory exception to tlie effect that he is a resident citizen of the State of Texas, and any “attempt to bring him into this court, by the appointment of a curator ad hoe, by virtue of any State law, is illegal, null, and void, being in contravention of the Fourteenth Amendment of the Constitution of the United States.”

This exception having been overruled, the counsel of McG-ehee filed an answer in extenso, and, after an elaborate trial, the case went to judgment, and the demands of plaintiffs were rejected, and from that decree the plaintiffs appeal.

The curator ad hoe requests that the judgment be so amended as to allow him a fee of $100 00, and that same be taxed as cost in the case.

I.

The plea of prescription is the first matter to be disposed of.

The theory of McGehee’s counsel is that the slaves owned by the succession were sold in December, 1862, under an-order of the probate court of Ouachita, for cash, in Confederate States Treasury notes, and that therewith the debts and obligations of the deceased were paid, the expenses of administration settled, and the balance paid over to, and distributed among the known heirs of the deceased. That the real estate which figures upon the inventory, was not sold, but was taken into corporal possession by the said heirs, and put in custody of an agent, to whom they gave a written power of attorney authorizing sales thereof. That this extva judicial settlement was effected in the month of December, 1862, and terminated his trust as administrator, and, since that date he has performed no official act as administrator; but, on the contrary, considering- the administration at an end, he removed from this State, and established his abode in the State of Texas, where he has since resided, and now resides. This suit was filed on the 25th of June, 1877, nearly twenty-five years since these transactions are alleged to have taken place.

The oxcex>tor’s contention is that the actiomto compel the legal representative of a succession to account is in the nature of an action of mandate, subject to the prescription of ten years, and that the period of ton years has run against the plaintiffs’ action — it having .begun either on the — day of December, 1862, when the debts wore paid and settlement with the heirs was made, or on the 9th of March, 1869, when the compromise of the Calhoun judgment was made, or in 1872, when their duly appointed agent made sales of the interests of petitioners and other heirs, in certain portions of real estate they inherited from the decedent.

In succession of Powell, 38 Ann. 184, we said that “we consider it perfectly clear, that when the succession is wound up, and all the debts paid, and only the property remains in the hands of the administrator, the purposes of the legal agency conñded to him are accomplished, and it is the absolute right of each aud every heir to terminate it, and claim possession of his share of the succession.”

And in succession of Baumgarden, 36 Ann. 50, we said that, “ after the heirs of ago are recognized, there being no necessity for further administration, and the law having accepted the succession under benefit of inventory for the minor, (R. C. C. 977) the succession will have been wound up, and the executors under the obligation of rendering an account to the heirs of age, etc.” Succession of Geddes, 36 Ann. 963.

These principles have been so repeatedly announced in the opinions of our predecessors, as well as in our own, that they have become consecrated in" jurisprudence. They not only announce that when the debts of the succession have been paid, the functions of the administrator are suspended of right, bub that he remains under an obligation to render an account to the heirs, nevertheless.

True it is that our predecessors decided, in Wilson vs. McGrail, that “ according to the law prior to the Act of 1837, the office of a curator of a vacant estate terminated at the expiration of one year from the date of his appointment, and that all that remained to him to do, afterwards, was to render an account. The action to compel him to rfender the account, appears to us to be one in the nature of the action of mandate, and subject to the prescription of ton years.” 12 Ann. 358.

With some slight variation in verbiage the same principle was applied in Duanco vs. Montgomery, 13 Ann. 514, the court saying :

“As the law stood at the time the will was admitted to probate, the office of the testamentary executor expired at the end of the year, except it was otherwise expressed in- the will, or the term of office was prolonged by the judge. * * * * * * * *
“This being the case, the executor could not, after the expiration of the year, be said to be any longer in court. And being but a mandatory, nothing remained for him to do but render his account. * * Then an action must exist to compel the mandatory of the legatees to render an account.” The court then decided that the action came within the principle of Wilson vs. McGrael supra, and was proscribed by ten years.

But is that principle applicable under the law, as it now stands 9 We think not. Under the provisions of the code the functions of an administrator do not cease absolutely at the expiration of one year, but continue from year to year, until he be formally discharged by the authority which appointed him. The code says that “ curators of vacant successors shall, * * at least once in every twelve months, render to the court from which they received their appointment, a full, fair and perfect account of their administration, etc.” E. C. C. 1191.

“As soon ag the heirs * * have been thus put in possession of the succession * * the curator is bound to render a faithful and exact account of Ms administration to him, audio pay the balance due, etc.” E. C. C. 1194. The account contemplated, is & final account, undoubtedly. Then, it is perfectly manifest, that this account must be homologated, and the administrator discharged, and his bond cancelled, before his functions as administrator cease, and his trust terminated.

This being clear, then is it not equally clear that the administrator does not cease to be a trustee or agent of the heirs, until his account has been homologated? We think so. Then it is equally clear that his relations, during the period of his default in filing his account, are not those of a mandatory, and prescription does not run in his favor.

In keeping with this view, our predecessors held, in Courtade vs. Chamberlain, that “with regard to the plea of prescription, we have to remark that it is clearly untenable. * * Chamberlain was an officer appointed by the court to discharge certain' duties. As such, he must be considered as present before the court, in the nature of a party in the proceedings then pending. Prescription had no commencement in his favor, at least, before the homologation of an account.” 4 Ann. 368.

In Wilson vs. McGrael supra, the court said: “ This case does not come within the rule laid down in Courtade vs. Chamberlain, 4 Ann. 368.”

A careful examination of the authorities has satisfied us that the district judge properly overruled the defendant’s plea of prescription.

II.

While no importance lias been attached to the exception to, the jurisdiction of the court a qua, filed for McGeliee, yet we deem it of sufficient importance to receive a passing notice, merely to make it plain that it was not well taken. The theory of this defendant is that this action is in the nature, and partakes of the character of a strictly personal action and this proceeding cannot be entertained, nor judgment rendered against him in a court of the State of Louisiana, he being a citizen of a different commonwealth, the State of Texas. “ The question is one of Federal constitutional law,” and is controled by the decisions of the Supreme Court. Vide Hackness vs. Hyde, 98 U. S. 478, and Pennoyer vs. Neff, 95 U. S. 714.

Iii tlie recent ease of Laughlin vs. The Louisiana and New Orleans Ice Company, 35 Ann. 1184, in applying' tlie principle announced in those cases, we said that “ substituted service can be effectual against nonresidents as due process of law,’ only when, in connection therewith, property in this State is brought under the control of the court, and subjected to its disposition, by process adapted to that purpose.” See, also, McKenzie vs. Bacon, 38 Ann. 764.

It appears from the record that the deceased resided in the Parish of Ouachita, this State, and owned a considerable estate there, at the time of his death. Tlie defendant, J. W. McGehee, also resided there, at that time. Both were enlisted as soldiers, in the Confederate army, and the deceased was killed in battle at Malvern Hill. After the close of the war, the defendant removed to the State of Texas, and has since resided there. But, in the meantime, and while yet a citizen of this State, he petitioned to a court of this State, to be appointed administrator of the succession of his brother, secured the appointment, executed bond as such, took possession of the effects and property of the succession, and as such caused a large portion thereof to be sold, and converted into money. Surely it cannot be seriously contended that he has exonerated himself from suit, by the heirs of that succession, in the court which appointed him to that trust, for the rendition of an account of his administration, and before he has been judicially discharged. The plea is not good and cannot be maintained.

III.

On the merits, we are disposed to view this as a suit for the recognition and enforcement of a “stale claim,” which has been permitted to slumber, for well nigh twenty-ñve years. The learned judge of the lower court, in his opinion, very justly observed that “ it is worthy of consideration that tlie facts out of which this litigation arises, occurred more than a quarter of a century ago, and at a time of intense excitement and trouble, caused by a prevailing revolution between the States of this Union, when judicial as ivell as other proceedings — -where they existed — were not as exact and precise as (they).should have been; when the exigencies of the times required the absence of officers, as well as private individuals j and the means and modes of communication with others, at home and abroad, were almost entirely cut off or impaired. After the lapse of such a length of time, it is natural that the memory of witnesses has become clouded, and other means of proof may have been lost or impaired, and the same strictness of proof as to payments, as ■well as other facts should not, and will not be required. The lapse of time, and staleness of demand will, to some extent, come in aid of testimony not in itself conclusive.”

In Baker vs. Towles’ administrator, 11 La. 433, our early predecessors very truly said:

“ Parties wlio lay by for so long a period of time, without asserting their claim ; who suffer the circumstances which accompanied a transaction to fade from memory of the vicinage, and even of those officially concerned 'in it, ought not to complain that less rigid evidence is required, nor ought they to gain, by tlieir own acquiescence while the transaction was yet recent, and when more complete evidence might have been obtained.”

In Heirs of Davenport vs. Labauve and Landry, 5 Ann. 141, the court said that the lapse of time and the staleness of the demand, come in aid of the testimony as to the fact of payment,” and repeated what was said in Baker’s case supra with approval.

In Wood vs. Egan, 39 Ann. 685, we borrowed from Rodenheimer’s case, 35 Ann. 1006, a paragraph which even more tersely expresses the same views in these words, viz :

A stale claim, long withheld from presentation or prosecution,.until he, against whom it is preferred, lias died, must be established with more than reasonable certainty. An unfavorable presumption is created by delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony.” * * * These conclusions are supported by good and conservative authority. Davenport’s case, 5 Ann. 141; Simpson’s case, 7 Ann. 555; Succession of Rea, 14 Ann. 317; Manning’s Unreported Cases, pp. 98, 121, 339; Cutter vs. Succession of Collins, 37 Ann. 95.”

Now, what are the leading substantial facts as shown by the record? They are that at the date of the death of the decedent in 1862 — he having died without forced heirs — tiro defendant McGehee, through solicitations of Ids co-heirs, obtained a leave of absence from his command in the army, and made a visit to his home in Ouachita parish, for the purpose of settling up his brother’s succession. While there he caused an inventory to be made, and himself appointed administrator thereof. This inventory shows lands valued at a little over $3000, a small amount of personal property, and rights and credits, and some negro slaves valued at about $3500. Soon after, he ascertained that the deceased owed some debts, which were due principally to Byrne & Shields and J. P. Crosley. One of several hundred dollars was due to himself. To pay them, ho petitioned for and obtained an order for a sale of the personal properly and siamés.. At the sale about $4500 was realized in Confederate Treasury notes. With this depreciated paper he managed to settle the debts of the deceased, and liquidate and settle the succession debts and charges, and the resulting balance he turned over to the counsel for absent heirs, for settlement and distribution among the heirs. ITe then.returned to the army, where he remained until the close of the war in 1S65, and soon after he removed to Texas, where he has since resided.

At the time of these transactions the heirs of the deceased were of full age, and by whom no question was ever raised, in reference to the disposition "made of the surplus of confederate money which the administrator left in the hands of the attorney appointed to represent them, until about the time this suit was filed; and it is this fund which constitutes the gravamen of petitioner’s complaint.

Soon after the close of the late war, one Byrne, claiming to have duo authority from the heirs, accepted $500 in United States currency, in settlement and compromise of a debt against one Calhoun, for $1100 and interest. His authority to represent them, and make this settlement, is stoutly denied by the plaintiffs, and even Byrne does not recollect it; yet, we are fully satisfied, from the receipt of Byrne, which is written upon the reverse of the petition in the suit of McG-ehee vs. Calhoun, the attending circumstances, and the testimony of other witnesses, that ‘ the compromise was authorized and made. The transaction took place in the office of Morrison & Parmer, reputable lawyers of Monroe, and Calhoun swears, as a witness, that “ Byrne was authorized by letters, which were read to Morrison, who said, go ahead, then.’ ”

This money was paid to Mrs. Phillips, one of the heirs, who sent their proportionate shares to the plaintiffs.

Several years after this transaction plaintiffs and other heirs took possession of the lands they inherited from the decedent’s estate, and appointed an agent to sell the same. He sold some of them many years ago, and those remaining were thereafter sold for taxes, and the titles have passed to various third persons since.

On this state of facts the district judge observes, that “it is nota violent conclusion, in view of the evidence and all the circumstances in this case, although the testimony may not be positive and conclusive of itself, that there was an extra judicial settlement and understanding as to what had been done, and what was to be done, and left undone, in December, 1862, as to the property remaining undisposed of.”

We are in perfect accord with his views. When we reflect upon the fact that this contention is virtually one over the value or price of negro slaves, that wore sold in 1862, only a short time prior to the promulgation of the Emancipation Proclamation, liberating them from bondage; and the further fact that the sale was made for Confederate money, then of a greatly depreciated value, and which soon afterwards became utterly valueless, we cannot refrain from expressing- our surprise that such a claim is preferred. We think the heirs should rather have congratulated themselves upon having been so fortunate as to have realized on such values in the discharge of their brother’s debts, and thus secured to themselves the more substantial part of his fortune as an inheritance.

Without reciting in detail the facts, we are of the opinion that there should have been an allowance of $100 made in favor of the curator ad hoc. It is, therefore, ordered and decreed that the judgment be so amended as to allow, in behalf of the curator ad hoc, a fee of ¥100, to be taxed as costs in the case, and that otherwise, judgment be affirmed.

On Application eoii Rehearing.

Complaint is made of a statement in our opinion to tlxe effect that Mi's. Phillips should have said that she had received and sent to the plaintiffs the respective shaves of the amount realized from the Calhoun compromise. This is slightly inaccurate. She did say that she had received their shares of the cash proceeds of the sales made by Col. R. Richardson as tlieir agent, and carried same to them. This caused our mistake, as the two funds are spoken of in the same conversation. This is a part of her statement on -the last trial of the cause, and to which there is no reference in counsel’s brief. But what is to the same effect as our quotation is that this witness says, that in 187L she corresponded with the plaintiffs in reference to the settlement and compromise Byrne had made of the Calhoun debt, and they had written her letters on the subject, and requested her to see Mr. Byrne and “ collect it and come to Alabama,” and pay her expenses out of it.

This shows that if they did not receive it, they had full knowledge of the transaction and did not repudiate it.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1,215.
    Parish of Morehouse vs. Thomas L. Brigham.
    1. A license is a tax. It is a license tax and not a property tax. A license could not bo liold lo bo a property tax, without malting it unconstitutional, as being, together with the ad valonan tax permitted by the Constitution, in excess of it.s limitation.
    2. A statute which provides that all land, and other taxable property, situated within the limits of a corporation, shall ho exempt from the payment of parish taxes, does not exempt citizens of that corporation from paying parish licenses.

      APPEAL from tlie Justice’s Court, Fourth Ward of Morehouse Parish. JBrodnax, J.

      J. P. Madison, District Attorney, for Plaintiff and Appellee.

      Todd (& Todd and I¡. F. Leavel for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant appeals from a judgment condemning him to pay the sum of $50 as the amount of parish license due by him, for the current year 1889, for operating and prosecuting, in the town of Dastrop, a saloon, and in retailing liquors in less quantities than five gallons; and commanding him to desist from further pursuing or prosecuting said business until said judgment and costs are paid.

The defendant’s complaint is that he pays to the corporation of said town a license tax of $50 for the purpose of carrying on and operating his business * * '* and he specially denies that he is due the parish of Morehouse anything in the way of license therefor.”

He avers that the Parish of Morehouse has no right or authority to impose a license tax of $50 upon his calling as a saloouist, and that he is not liable for said license tax * * because he is specially exempted by the Act of the Legislature of the State * * passed in 1801, from paying any license tax to the Parish of Morehouse, for the purpose of carrying on, or conducting his said business,” and he prays judgment exempting him therefrom.

On the trial it was a fact admitted that “ the town of Bastrop is a regularly incorporated institution, with full power to levy and collect taxes and licenses.”

There ivas introduced in evidence Act 105 of 1881. This is an act amending an act concerning the town of Bastrop.

The portion of that act applicable to the present controversy, reads as follows, viz:

“That the trustees of said town shall have the power to assess such an amount of taxes for municipal purposes as they may deem proper, not to exceed the sum of $1500 per annum, to be assessed and collected in the same manner as taxes of the State are; provided, that the land and other taxable property situated within the limits of said corporation shall be, and the same are hereby declared exempt from the payment of parish taxes."

Defendant’s construction of that provision of the statute, is that it was “ the intention of the Legislature to exempt from parish taxation everything within the corporation of Bastrop, upon which a tax could be imposed ; and that by ‘land and other taxable property,' was meant to everything of any nature whatever.” In illustrating- their theory, his counsel state in their brief (page 2), “that if such was not the intention of the Legislature * a strange anomaly would be presented. A storehouse valued at $10,000, filled with a stock of goods valued at $10,000, situated within the corporation of Bastrop, would be exempt from taxation, still the proprietor would have to pay to the parish a tax to enable him to sell goods.” ___r_

The defendant’s counsel are manifestly under’ a misapprehension of the true meaning and import of .the term license.” He evidently insists upon it being simply a tax ” —• that is, a property tax. It is not a property tax, but a license tax, and does not come within the meaning and true import of the statute cpioted,-exempting “ the land and other taxable property situated within the limits of said corporation.” To bring the license tax claimed of defendant, within its provisions, we would have to construe it to be a property tax.

In the very nature of things it could not be, without being, at the same time, stricken with unconstitutionality, for the amount of the license being added to the six mills ad valontm tax permitted by the Constitution, the total amount would exceed that limit. Licenses are graded by the statute, and fixed at a lamp sum, according to the approximate amount of business done, whilst taxes are assessed at the rate of a fixed number of mills upon each dollar of ascertained valuation. Taxes are levied upon specific property, whilst licenses are permits to persons to pursue certain callings or professions, and do not constitute a charge upon the property of such persons, eo nomine.

Exemptions are in derogation of common right, and exemptions from taxation must be strictly construed. The statute relied upon by the defendant, as exonerating him 'from paying license to the parish of Morehouse, does not support his ‘contention. It means just what it says, “that the land and other taxable property situated within the limits of said corporation shall be and the same are hereby declared exempt from the payment of parish taxes.” Nothing more is exempt.

Parish of East Feliciana vs. Levy, 40 Ann. 332, is relied upon by both plaintiff's and defendant’s counsel as authority for their respective positions. In that case there was drawn in question the provisions of Act 172 of 1852, which declared that “the town of Jackson, in the parish East Feliciana, be ami tlie same is exempt from the payment of parish taxes.”

We stated the issue to be, as wo understood it, as follows, viz :

“ Simplified and refined, the question is, whether a license is a tax.”

After the citation of adequate' authority, we said that “it was evidently the intention of the Legislature to exempt all objects of parish taxation, from the payment of parish taxes; and the word 'taxes’ was obviously employed in its broadest sense, and included license taxes as well as property taxes. It declared that the town of Jackson is hereby exempt, etc. The 'town’ of Jackson certainly includes the inhabitants, as well as the property that is situated within its limits. The defendant’s occupation comes within the purview of the legislative exemption, and the judge a quo was correct in deciding that ho was not liable for the parish license claimed of him.”

In that opinion we decided distinctly — and so intended to decide— that a license was a tax, but a license tax, and not a property tax. To that opinion we adhere. The statute invoked does not exempt the defendant from paying the parish license imposed on him.

Judgment affirmed.


author: McEnery, J.

text:
    No. 1,219.
    Succession of Susan A. Scott.— Opposition to Final Account.
    Its is not too late to file an opposition to a final account when the accountant has introduced liis evidence and closed it, and the minutos show “that the ease was taken up for trial, evidence introduced and case laid over until to-morrow morning,” and continues on the docket in this shape until the opposition is filed. .
    Wlien an administrator’s account shows an amount for distribution less than tlio lower limit of the jurisdiction of the Supreme Court, and tlio opposition, if sustained, would increase the amount so as to give the Supreme Court jurisdiction, the administrator would have the right to appeal; consequently the opponent has the same right to appeal.
    An action of nullity for the sale of succession property can not ho grafted on to an opposition to a final account. The opponents have tlioir remedy by separate action.
    APPEAL from the Twenty-Seventh District Court, Parish of Richland. Williams, J.

      Thos. O. Benton and J. W. Willis for Opponents and Appellants.

      Wells d; Rhymes for the Administrator, Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

McEnery, J.

The administrator has filed a motion to dismiss this appeal” on the ground that this court is without jurisdiction ratione mater ice.

The reason alleged is that the “ Turkey Creek place ” was erroneously inventoried, which fact is admitted in the record. It was sold under judicial process before the death of Mrs. Susan A. Scott, and deducting its value from the inventory, there remains the sum of $1507 50, an amount less than the lower limits of the jurisdiction of the Appellate Court.

In the opposition property, rents and revenues are claimed as assets of the succession, and if there had'been judgment for the opponents, the amount to be distributed would have exceeded the sum of $2000.

Therefore if the administrator had been cast in the suit, he would have had the undoubted right to appeal. The opponents can exercise the same right. The motion to dismiss is overruled.

On the Merits

Mrs. S. A. Scott died in September, 1882, and Wm. II. Scott qualified as administrator of her succession. He filed a final account, and evidence was introduced on the trial thereof and closed, but there was no judgment homologating the account. The. widow and heirs of Wm. Scott, deceased, before the account was finally homologated, filed an ojiposition thereto. A motion was made by the administrator to dismiss the opposition, as it was filed after the evidence was offered and the testimony closed. It was within the discretion of the judge to reopen the case and hear additional testimony on the trial of the correctness of the account. The opposition was filed while the case was pending, the minutes reading, “this case was taken up for trial, evidence introduced and case laid over until to-morrow morning,” and it thus continued on the docket while the opposition was filed. The motion to dismiss the opposition on this ground was properly overruled.

The opponents allege that the appointment of an administrator of said succession was unnecessary and illegal, as Mrs. S. A. Scott left no debts. There were the expenses of last sickness, attorney’s fees incurred during her lifetime, taxes for several years, parish and State, and an eventual liability on a twelve months’ bond. There was no cash on hand.

The heirs of age failed to accept the succession, or to advance the necessary funds to pay these debts; .and there was no opposition made to the appointment of tlie administrator. It is too late to urge the illegality of his appointment after lie has administered the succession and filed his account. The illegal acts complained of were in the course of the administration, and if they are true, tlie heirs or creditors should have had him removed and another administrator appointed.

Each and every item on the account is opposed. We have been careful to scrutinize tlie items and the vouchers for the same, and find them correct, so far as the payment of money for the discharge of debts left by the deceased and the expenses of the administration.

The Home place, which opponents claim is worth $3000, and a rental of $500 pier annum, from the 1st day of January, 1883, was sold under an order of court to piay debts, and was purchased by W. M. Scott, one of the heirs. This sale is attacked as an absolute nullity, and it is asked that it be restored to the succession and the administrator be charged with the said rent. The ground of nullity is fraud, collusion and want of consideration, and that it was a simulation entered into for the benefit of W. II. Scott, who was in piossession of said Home pilace at the time of said sale, and “that W. H. Scott, Walter M. Scott and Col. C. II. Moore, agent and attorney in fact for Miss Mary S. Kincaid, entered into a deceptive scheme whereby Walter M. Scott was to be the ostensible owner of the twelve months’ bond of W. PI. Scott, in suit of Miss Mary S. Kincaid vs. Susan A. Scott, for the balance due thereon, viz: $1038 50, and that W. M. Scott was to recoipit for said amount to W. II. Scott, administrator of Susan A. Scott, and in consideration of said bond and an insignificant sum, which was also not paid, that W. II. Scott was to make to W. M. Scott a deed to the Home p>lacc described in the inventory.”

It is evident that this part of the opposition is an action of nullity, which cannot be grafted on to an opposition. The pmrchaser and C. II. Moore, agent and attorney in fact for Miss Kincaid, are not parties to this suit. The opponents have their remedy by separate action. Sue. of Sanchez, 4-1 Ann. 504. (Recently decided.)

It is, therefore, ordered and adjudged that the judgment homologating the account be affirmed, and tlie opposition be dismissed, reserving to opponents their right to pirocecd against the propier parties in their action of nullity to set aside the sale of said Home place and to recover the rent for the same, if any is due, and their rights against tlie administrator for maladministration be reserved to them, and for this purpose the rights of opponents to sue the administrator and his sureties on the administration bond are also reserved, opponents to pay costs of appieal.


text:
    No. 1,208.
    George S. Irving vs. W. H. Edrington.—McCutchen & Co., Intervenors.—S. Brown & Co., Intervenors.
    Where an affidavit in an.attachment was made before a Commissioner for the State of Louisiana, it is sufficient. He is authorized to administer oaths in verification of any writing to be used in the courts of this State.
    Where the petition is sworn to, and the allegations in the petition authorize an attachment, it is sufficient.
    A deputy sheriff who is a minor is a de facto officer, and a service made by him is not illegal.
    Where a party executed notes as collateral security for advances to bo made, and a suit is instituted for the balance due on said notes, it is incumbent upon the defendant to show a want of consideration. 1
    When monthly statements have been rendered the party and ho has made no objection and has not asked for the correction of errors, he can not afterwards object to stated accounts being offered in evidence which summarize the items previously furnished him in the monthly statements.
    Where the contract has been made with one party to furnish supplies, and he does so, the defendant can not object to statements offered in evidence, containing items of supplies so furnished because they were obtained from other parties.
    APPEAL from tlie Eighth District Court, Parish of Madison. Montgomery, J.

      Wade R. Young for Plaintiff and Appellant.

      Slone & Murphy for Defendant and Appellee :
    1. Where plaintiff sues in his own name for balance claimed on account for advances alleged to have been made by him to defendant, and where, in answer to a rule taken on motion of defendant, to compel him to file a specific bill of particulars and an itemized account, plaintiff'files an account between defendant and a commercial firm of which plaintiff was a member, and between defendant and a corporation in which plaintiff is a stock holder, showing balance in favor of the corporation, and where there is no allegation of transfer or assignment, either by the firm or by the corporation to plaintiff, plaintiff' cannot recover. B. C. C. 432, 446 ; C. P. 119.
    2. The objections urged to these accounts on trial of the case for want of relevancy, as going to show res inter alios acta, and on the ground that they were inadmissible under the pleadings, were properly sustained.
    3. The attempt of plaintiff near the close of the trial, and after the court had ruled out and refused to receive evidence on the accounts “ C ” and “L,” to change his position by offering account “E,” which differs from said accounts “ C ” and “D,” only in that it purports to bo between defendant and plaintiff alone, was unauthorized. The objections to this account, “ that it does not correspond with the account produced and filed by plaintiff* to order of court herein, as evidencing indebtedness of defendant sued upon, and is not botween the same parties, and contradicts tlie account sued on, and is an attempt to do indirectly that which the law prohibits from being clone directly, and is an attempt to disprove plaintiff’s own allegations,” were well taken and the account was properly rejected.
    4. Accounts made up of sucli items as “cash,” “mdse acct,” “bl. payable,” “xmrehases,” “ini.” without items or details, arc too vague, general, indefinite and uncertain to admit of proof, particularly whore such accounts are filed hy plaintiff in answer to a rule granted on judgment of court ordering him to file a “specific bill of particulars and an itemized account, showing each and all the items, dates and amounts of debit and credit between plaintiff and defendant, which are claimed by plaintiff to have resulfod in the balance claimed in this cause,” and where defendant objected and reserved his bill to the ruling of the court, declaring said accounts a sufficient answer to the merits. The objoojection to said account on trial, on the ground that the items charged, were, each of them, too general, vague, inexplicit and indefinite to admit of proof, was properly sustained. 9 Ann. 499; 2 Ann. 395; 4 Ann. 381; 7 Ann. 535; 13 Ann. 233.

      A. L. Slaclc for Intervenors and Appellees.
   The opinion of the Court was delivered by

McEnery, J.

The plaintiff alleges that lie entered into a contract with the defendant Edrington, on the I5th of February, 1887, for the purpose of obtaining supplies, money, etc., to cultivate the Australia plantation in Madison parish, and that said Edrington executed a written agreement with the usual stipulations for liens and privileges, in favor of plaintiff, and as collateral security, executed five promissory notes in Vicksburg, and payable in said city, for $1000 each, with interest from maturity, and maturing at different dates from 1st day of October, 1887, to the 15th of January, 1888. He alleges that ho had complied with his agreement, furnished the necessary supplies and money, and that the defendant failed to ship cotton to him as ho had contracted to do, and that there is a balance due him of $3762 77, with ten-per cent interest from March 15, 1887, for which ho asks judgment with recognition of privilege on property attached in the suit, a mortgage on the mules, farming implements, etc. Edrington, the defendant, was a non-resident, and an attachment issued against his property. The oath for the order was made by plaintiff before a Commissioner for the State of Louisiana, the service of citation was made by a minor, and posted at the court house door.

The allegation in the petition of defendant’s non-residence was sufficient grounds for an attachment. A Commissioner for the State of Louisiana, residing in another State, is an officer of the State, commissioned by the Governor and specially authorized to administer oaths.

The court house is a two-story building with four public entrances. The returns on the writs show that they were j>ostcd at the court house door, and, as it is not contradicted, it is presumed it was posted at the usual place where such notices are posted by the sheriff.

The service of citation and papers in a suit by a minor, who is a deputy sheriff, will not vitiate the service, as ho is a de facto officer. The motion to dissolve the attachment was .properly overruled.

The defendant, before answering, filed a motion and obtained an order requiring plaintiff to produce and file in court a specified bill of particulars, itemized accounts, showing dates, debits and credits, between plaintiff and defendant. There were several motions to this effect, and numerous objections to testimony, all of which grew out of the fact that the suit of plaintiff was treated as a suit on an open account.

The suit is based on the promissory notes executed by defendant, as collateral security for the supplies and money to be advanced.

The plaintiff had the undoubted right to sue on the notes and to treat them as the pledgee could do, and sue directly on them and to obtain judgment for the balance due, unless the defendant showed.a want of consideration, on the part of the plaintiff’s failure to comply with- his obligation, in furnishing the necessary supplies and money, and advances as stipulated and agreed upon in his contract. 40 Ann. 631, 6G7.

And this view taken of the suit lias caused some confusion in the. in troduction of several accounts of Geo. S. Irving, Irving & Co., and the Geo. F. Irving Co., and it has' occasioned the' presentation of a.vigorous, able and plausible argument on the part of defendant’s counsel.

The contract was made by the defendant with Geo. F. Irving. He had no contractual relations with Geo. F. Irving & Co., or the Geo. F. Irving Co. Geo. F. Irving may have been a member of, and undoubtedly was the controlling member of the company and the corporation, but they were distinct personalities. 'They were strangers to the suit, had no interest in it, and if Geo. F. Irving obtained from them the goods, advances and other things furnished to the defendant, their accounts of them, whether delivered directly to Geo. F. Irving, to be delivered to defendant, or to the defendant directly, were certainly admissible as evidence to show that they had been furnished to the defendant by plaintiff in accordance with his . contract, and as a consideration for the notes sued on. They were, when proved, mere vouchers for the amounts furnished by plaintiff to defendant.

Between the plaintiff and the defendant the sole question then is : has he- complied with his contract and furnished the plaintiff the articles embraced therein? The articles furnished are necessary plantation sup-plies. This is proved by several witnesses.

John A. Klein, the bookkeeper of Goo. S. Irving, swears positively that he had been in the employment of plaintiff eight years, and tluit he had furnished the defendant monthly statements, which were puf in-defendant’s mail box at Reynold’s drugstore, in Vicksburg, and that defendant had received them is shown by his statement to the bookkeeper that he did not understand some things in the accounts. He promised to explain them to defendant, but he never called and requested an explanation.

Geo. S. Irving, the plaintiff, in his testimony, states that accounts were rendered the defendant monthly, and that he never made any complaints as to their correctness.

Two accounts, marked “ C ” and D,” were offered in evidence by plaintiff and objected to by defendant on the ground that each one of them was too vague, inexplicit and indefinite to admit of proof, and that the evidence sought to bo adduced is irrelevant, an attempt to prove res miar alios aeia and inadmissible under the pleadings. The first objection was sustained.

The view we have taken of the case disposes of the second objection. The defendant had been furnished with monthly statements, and the accounts offered in evidence in some of the items charged, summarize the items previously furnished the defendant.

On plaintiff’s motion, a number of accounts which had been rendered by plaintiff to defendant, and which wore in his possession, were produced and filed with defendant’s answer to the-rule. Those bills all contain itemized statements of cash advanced and items of “ purchasos,” “ merchandise,” which had boon rendered by specific items on monthly statements.

The witness Klein states that these accounts correspond with the accounts rendered defendant, as they were taken from the same books and vouchers, the only difference being that in tlie ledger the names of the parties upon whom drafts were given are not put down, but in the two accounts the amounts are the same.

The defendant offered no evidence in rebuttal of plaintiff’s testimony. The suit was based upon the notes executed by defendant, and it was incumbent upon him to prove a want of consideration. This he has failed to do.

S. Brown & Co. intervened in the suit. They entered into an agreement with the defendant to advance and supply the tenants on defendant’s plantation, and the defendant waived and renounced in favor of Brown & Co., the lessor’s privilege on the crops to be produced on said plantation. This contract was recorded in the parish of Madison.

On an agreement to make additional advances, the leases and contracts for rents were transferred to Brown & Co.

They advanced to the tenants $10,954 37, and made further advances while the plantation was under seizure. The advances after the seizure were made under arrangements with plaintiff and defendant, and the contract of the intervenors was thus ratified and approved by the plaintiff. There was no seizure under the attachment of the growing crops, and therefore the intervenors’ privilege as owner of the rent notes was unaffected thereby.

We have carefully examined the testimony offered by the intervenors, and conclude that they have fully proved their claim. There are objections by plaintiff that the items furnished ,are not plantation supplies necessary to the raising of a crop. But the same objection can, with equal propriety, be urged against the accounts of the plaintiff.

There was error in the judgment of non-suit against the plaintiff.

It is, therefore, ordered that the judgment appealed from be amended, so as to avoid and set aside the judgment of non-suit rendered against the plaintiff, and it is now ordered that there be judgment in his favor against the defendant, Wm. H. Edrington, for the sum of $3762 77, with interest at the rate of ten per cent, from March 16, 1888, and that the attachment be reinstated, and plaintiff’s privilege resulting therefrom be recognized dnd enforced and rendered executory on all the property seized under said attachment, except that subject to the lien and privilege of the intervenors, Brown & Co., and that plaintiff’s privilege, as a furnisher of supplies, be also recognized and enforced on all the crops raised on the Australia plantation, except those covered by the judgment rendered in the court below in favor of the intervenors, Brown & Co. In other respects the judgment appealed form is affirmed, the defendant to pay costs of appeal.

On Application por Rehearing.

The reason assigned for an application for a rehearing, is that we erred in holding this suit to be founded on the promissory notes evidencing the contract for supplies to be furnished defendant by the plaintiff. Admitting this to be true, the fact remains that the suit is on the contract between Geo. S. Irving and W. H. Edrington, of which the notes form a part.

There were five notes described in the petition, but the contract and eight notes, forming a part of it, were introdued in evidence without objection.

By the contract entered into between the plaintiff and defendant, Edrington was to be furnished supplies to a certain amount, and he was to ship cotton to the plaintiff to pay for the same. He is responsible for whatever balance may remain duo for the advances made to him by the plaintiff. The contract and the supplies furnished thereunder are to be regarded wholly as between Irving and Edrington. Edrington has received advances under the contract, and is liable for whatever balance is due. As stated in the opinion, it matters not that Geo. S. Irving caused the supplies to be furnished through the Irving Co., or Irving & Co.

The defendant had nothing to do with the Ann or the corporation. The advances were under the contract by Irving, and any balance is due to him. The accounts and statements rendered Edrington wore made in the name of Geo. S. Irving. When Irving was called upon to furnish items and specifications he furnished them from the books of the Irving Co., and Irving & Co., where they had been kept. If those accounts contained the information required by defendant, that was all that the defendant had the right to demand. The judge erred in ruling them out and dismissing the action.

They should have been received and evidence hoard as to their correctness, as to the various items mentioned therein. We think we correctly reversed his judgment.

The defendant, however, so confidently assorts his ability to show errors in the account, and reducing them by largo amounts, and as by their rejection by the court, he had no opportunity of contesting them, we think our former decree should be amended so that he may have an opportunity to do so. We shall, therefore, remand the case.

It is, therefore, ordered that the decree rendered in this case be amended as follows:

It is, therefore, ordered that the judgment appealed from dismissing plaintiff’s action be amended and reversed, and that the case be remanded to be proceeded with according to law and to the views herein expressed. In other respects the decree heretofore rendered to remain undisturbed.


author: Poché, J.

text:
    No. 1,325.
    The State of Louisiana vs. Summer Miller.
    In charging the law to tlio jury in a criminal trial the judge will not he coerced to embody the law in tho language or form suggested by counsel. If, in his own way and language, the judge gives the substance of the charge requested, he has done his duty to the State and to the accused, and his ruling will not be disturbed on appoal.

      APPEAL from the Fourteenth District Court, Parish of Calcasieu. Head, J.

      J. G. Gibbs. District Attorney, for the State, Appellee. ,

      W. F. Sdlming for defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

Defendant appeals from [a conviction of murder and a sentence of death. Ilis sole comjfiaint is at the refusal of the trial judge to give the following special charge :

“ The jury have a perfect right, when they are satified that the accused is guilty of murder, to render the verdict of guilty, without capital punishment. i
“ The law makes it no more a duty of the jury to find an unqualified verdict of guilty, than to find a qualified verdict of guilty without capital punishment. That, Section 1000, of the Revised Statutes, authorizing a verdict of guilty without capital punishment, is of equal authority with Section 784, Revised Statutes, making the punishment death. Both are law and must be construed together.”

The bill shows that on this point, the judge had already charged the jury as follows:

• “ If you are conclusively satisfied, under instructions already given you, that the accused wilfully and of his malice aforethought (did) kill John Younger as laid in the bill of indictment, your verdict should be guilty (to) which if in your judgment you think it right, you may add without capital punishment.
“The jury hive a perfect right when they are satisfied that the accused is guilty of murder, to render á verdict guilty without capital punishment.”

A comparison of the two utterances show at once that both contain the same thought and embody the same rule of law in substance.

The argument of counsel for defendant is simply an effort to establish a distinction where there is no difference, hence it has no force whatever.

He had no warrant in law, justice or common sense to require the judge to use his own language in charging the law to the jury.

The rule has long since been settled as follows:

“The trial judge, who embodies in his charge, the substantial meaning of an established principle of law invoiced by the accused, and thus correctly expounds the accepted doctrine involved in the matter, has done his duty both to the State and to the accused. Nothing more can be required of him. No rule of law or of criminal jurisprudence can exact of a judge the adoption of the very language suggested by counsel for the accused in a charge which the latter may seek from the court.” State vs. Porter, 35 Ann. 1159; State vs. Wright, 41 Ann. —.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1,326.
    The State of Louisiana vs. William Sterling.
    i. Jfaüur© of tlio cleric to qualify as jury commissioner, is fatal to indictments and other proceedings of tlio jury drawn by such commissioner, if seasonably urged; but, under Sec. 11. of tbo Act 44 of 1877, such objection must bo urgod at tlie first day of the term. Fadluro to urge on such day may be excused when circumstances render it impossible to do so, and also when tlio defect was not discovered until after the first day; but in the latter case, prompt action is required aflor discovery, and delay and laches in urging the objection will bar tbo right to urge it.
    2. Various charges of errors considered and overruled.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Heed, J.

      J. O. Gibbs, District Attorney, for the State, Appellee.
    A. 11. llitehell and 1). 13. Gorhmn for Defendant and Appellant:
    Ox Motion to Quash.
    The acts of the cleric as a jury commissioner, not having qualified as such, are null and void, and vitiates all proceedings in which he participated as jury commissioner. Act No. 44 • of 1S77, Sec. 3, p. 56, approved hi arch 8th, 1877 ; State vs. Williams, 30 Ann. 1028; State vs. Vance, 31 Ann. 398; State vs. Bradley, 32 Ann. 402.
    The evidence of the clerk is admissible to show that he did not qualify as jury commissioner.
    On Motion for a New Trial.
    Hearsay testimony is inadmissible. Tlio best evidence that the nature of the case admits, should always bo offered. 1 Greenloaf Bv., Secs. 82 and 84.
    It is error first to admit improper and hearsay testimony, and then charge the jury to ignore the same. 2 Vol. Graham & Waterman, on now trials, pp. 615 and 616.
    The. fact that' the Court instructed the jury that hearsay testimony was admitted only for a particular purposo, does not make said testimony less objectionable. 2 Graliam & Waterman, on new trials, pp. 615, 616 and 631.
    If the relation existing between tbo accused and the Waters, Pierce Oil Company, grew out of an agreement entered into two years previous to tbo accusation, and that tlie agreement entered into at said time was never changed nor altered, then it was competent for the accused to show what that contract or agreement was, so as to negative tlio charge of felonious appropriation. 2 Bishop. Or, Prac., Sec. 330 ; 2 Russell, 453, 450 and 450.
    ‘‘If, instead of denying the appropriation of the money, tlio party, in rendering his account, admits it, alleging aright in himself, however unfounded, or setting up an excuse, however frivolous, lie cannot bo convicted of embezzlement, which implies secrecy and concealment; even though ho afterwards absconds and not pay over the money.” 2 Bishop Cr. P^ao., Sec. 330.
    It was error to confine the accused in his explanation of his transactions with the Waters, 'Pierce Oil Company to the particular time of tlio three Norris drafts. He should have • been permitted, in his defence, to unfold all the transactions had with said company. Boll’s case, 2 Russell, Sec. 453, and also Secs. 450 and 459.
   Tlie opinion of tlio Court was delivered by

Fenner, J.

A preliminary question arises in tliis case under a motion _ to quash tlie indictment, on tlie ground that tlie clerk of the court, who served as a member of tlie jury commission which drew tlie panel from which tlie grand jury finding this indictment, was selected, had not qualified as jury commissioner.

Such a defect, urged seasonably and properly, is fatal to tlie indictment and to all othor proceedings of the jury drawn by such an imperfect commission. State vs. Williams, 30 Ann. 1028; State vs. Revels, 31 Ann. 387; State vs. Vance, 31 Ann. 398; State vs. Bradley, 32 Ann. 402; State vs. Conway, 35 Ann. 350; State vs. Strickland, 41 Ann. 513.

But Section 11 of Act 44 of 1877, declares that “ all objections to the manner of drawing juries, or to any defect or irregularity that can be pleaded against any array or venire, must be urged on tlie first day of tlie term, or all such objections shall ho considered as waived and shall not afterwards bo urged.”

Tliis statute applies to tlie defect here pleaded, as well as to all others, and imposes upon tlie accused, who desires to avail himself thereof, tlie necessity of urging it on tlio first day of tlie term, when that is possible. We have held, however, that the statute does not require impossibilities. Hence we said in Vance’s case, above cited, that tlie limitation could not apply to juries only drawn after the first day of term, or to defendants whose offenses were committed and who were indicted during the term, and who were brought to trial during the term. So, in Strickland’s case, on like reasons, we held that when tlie accused was ignorant of tlie defect and urged it with due diligence as soon as discovered, his objection would not be slint out by tlie limitation of tlie statute.

In tliis case, defendant was indicted on December 1st, 1837, for an offense committed in the previous October. He was arraigned and duly pleaded to tlio indictment on December 12,1887.

Tlie motion to quash was only filed in February, 1889. The motion set forth no excuse for the untimely filing. It did not allege prior ignorance and recent discovery of the defect. Obviously nothing in the motion exempted it from the operation of the statute, and, under the plain terms thereof, the judge was not only authorized, but bound, to overrule it, and the correctness of his ruling in so doing, cannot be questioned.

After the motion to quash had been thus properly overruled, defendant filed a motion to re-open the motion to quash, with the view of proving his prior ignorance of the defect pleaded as an excuse for the untimeliness of his plea.

We cannot say the judge erred in refusing this motion. There must be an end to such questions. There was no good reason why the proper ground should not have been laid in the original motion to quash.

The whole complaint of defendant in this matter is purely technical, accompanied by no suggestion.of resulting wrong or injury.

He who seeks to take advantage of technical fault, stands in no case to ask indulgence for his own shortcomings.

Moreover, the record discloses that the defect was discovered and publicly known, prior to the November term of 1888, at which the venire of jurors was.quashed and set aside on that very ground.

Nothing in the affidavit or evidence taken under defendant’s motion establishes that he did not then become cognizant of the defect. He was bound to act promptly on such discovery. In permitting the November term to pass without action; in making an insufficient motion at the February term ; and in applying to re-open and amend his motion only at'the ensuing April term — defendant was guilty of such laches as cannot be excused and closes his mouth from complaint.

The record presents sundry bills of exception taken in the course of the trial, to the rulings of the judge in the admission or rejection of testimony, and the same rulings were assigned as grounds for now trial.

1. The defendant objected to the admission of the following statement by a witness: “ We had written letters and drawn three drafts on W. B. Norris by our bookkeeper, payable to our agent, Wm. Sterling, and forwarded them to him for collection,” the objection being on the ground that the letters and drafts themselves were the best evidence. The objection would have had merit, had the evidence gone to establish the contents oí the drafts and letters, but the judge properly states that the evidence was only as to the facts of the writing, drawing and forwarding, for which purpose it was clearly competent.

2. It is equally clear that the judge’s reasons for excluding evidence as to tlie nature of the dealings between defendant and the Waters, Pierce Oil Company, in the matter of goods consigned, are good. Defendant was prosecuted for the embezzlement of funds collected on eert tin particular drafts remitted to him by the Oil Company, as agent. The judge rightly held that testimony going to show that certain consignments of oil were made to defendant as a merchant, and not as an agent, was irrelevant, because, as he says, dealings of two merchants in oil would not be a defense to embezzlement of money collected on drafts remitted for collection.

The judge further held that no proper foundation had been laid for such evidence, which is explained by further statements of the judge in support of other similar rulings. He says he never held that defendant could not establish that the dealings between lmn and the Oil Company were exclusively as between merchants, but only held that proof as to an agreement that such should be the nature of the dealing in the matter of the consignment and sale of merchandise, was irrelevant, without first showing that the collection of drafts was covered by the samo agreement. He says that he ruled that defendant could show the terms of any agreement, as the basis of the relations between him and the Oil Company, provided such agreement or relations were shown to cover and embraced the collection of drafts, hut that, in absence of such showing, the testimony as to their dealings in other matters, was irrelevant. As we are hound to assume from the judge’s statement that the defendant made no such allowing, we cannot hold that the judge erred.

This covers the matter of several bills.

3. The objections to the, testimony of the witness Finley, as to the destruction of drafts, was sustained by the judge and the jury instructed to disregard the statement. Defendant- certainly cannot complain that his own objection was sustained.

4. Another similar objection was overruled in regard to certain drafts, for the reason stated by the judge, that defendant had himself elicited from tiis witness, on cross-examination, a statement as to the destruction of these drafts, and, on that ground, the State was permitted, on re-examination, to explain the statement.

5. An objection having been made to the admission of a certain document, on the ground that no foundation had been laid connecting the accused with same, the judge, in admitting it, remarked that evidence tending to show the identity of possession had been introduced,” to which remarle the defendant objected as being a commentary on the facts; whereupon, the judge instructed the jury to disregard the remark. The remark is not a commentary on the evidence, as to its weight or effect, but simply states that evidence of the kind had been introduced, leaving the jury to determine its value.

We think the remark operated no prejudice to the defendant, especially in view of the judge’s statement.

6. The objection to proof of copy of a letter on the ground that it was not tire best evidence, in absence of proof that the original had been lost or destroyed, is shorn of force by the statement of the judge as to the foundation which had been laid for the introduction of the copy, showing that the copy had been made from the original and liad been critically compared with it by witness; that due effort had been made to obtain the original, which was traced to the possession of a party who had left the State, to whom application had been made for it in vain. We think the foundation was sufficient.

'Nothing in the bill indicates any defficiency. of proof as to the genuineness of the original.

We have critically examined all the numerous errors assigned, and fail to find any of them well grounded.

Judgment affirmed.


text:
    No. 1,327.
    The State of Louisiana vs. O. Austin Ashworth.
    1. The clerk of court is a competent witness by wliom to prove that lie was not duly qualified as jury commisvsioner prior to the drawing of a venire.

    2. The law requires tliat amotion to quash, and sot aside a venire on the ground that the clerk had not been qualified as a jury commissioner before he assisted in the drawing thereof, shall be filed on the first day of the term at which the indictment is found, and any objection to that effect must be so filed, or exceptional circumstances shown which rendered compliance therewith impracticable.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Reed, J.

      J. O. Gibbs, District Attorney, for the State, Appellee.

      W. F. Schwing for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant was indicted for the crime of burglary, found guilty of larceny, and from a sentence to one year’s imprisonment at hard labor, prosecutes this appeal.

I-Iis chief complaint is of the refusal of the trial judge to sustain a motion to quash the indictment on the ground that the clerk of court had not taken the oath as jury commissioner "before the drawing of the venire of jurors from which the grand jury that found it was drawn and empaneled.

In support of this motion the clerk was introduced as a witness by whom to prove the fact on which the defendant relied, but the counsel for the State objected to his making ajiy statement, on the ground that his testimony would contradict the official proces verbal, and his other official- acts. This objection was correctly overruled, because this testimony did not tend to contradict any of his official acts, but to show that he was not qualified to perform the act in question. The prooes verbal of the drawing of the venire only recites that the clerk performed certain acts as jury commissioner, but it does not state that he qualified as such. We regard his testimony as competent.

His testimony clearly shows that he was not qualified to act as jury commissioner at the time lie acted as such, in the drawing of the venire in question, not having previously taken "the oath of jury commissioner. Section 3 of Act 44 of 1877.

Under the well settled jurisprudence of this court, and that of our predecessors, the failure of the clerk of court to take the required oath before entering upon the discharge of the duties of júry commisioner, rendered the drawing of the venire illegal. State vs. Williams, 30 Ann. 1028; State vs. Rowles, 31 Ann. 387; State vs. Vance, 31 Ann. 398; State vs. Bradley, 32 Ann. 402; State vs. Thompson, 32 Ann. 879; State vs. Conway, 35 Ann. 350; State vs. Washington, 33 Ann. 896.

But the district attorney insists that as the defendant’s motion was not filed on the first day of the term at which the indictment was returned, it came too late, and was, therefore, properly overruled.

The statute provides “that all objections to the manner of drawing juries, or to any defect that (than) can bo pleaded against any array or venire, must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterward be urged.” Section 11, Act 44 of 1877.

Our predecessors interpreted this section of that statute and applied it to the question under consideration, in State vs. Vance, 31 Ann. 399. They said:

“ The general venire list from which the jury was drawn, was made by Herbert, clerk of the court and jury commissioner, prior to his having taken tile oatli required by law, as jury commissioner. The court refused to allow the exception and motion to be filed because they were not made on the first day of the term. Section 11, Act 44 of 1877, the present jury law, does require the exceptions to the array or venire to be made on the first day of the term; but, obviously, this must bo understood with some restrictions. No objection could be made to the venire before it was drawn; nor could a person indicted for an offense committed during the term, and put wpon Ms trial during the term, have objected to the venire on the first day of the term.”

To meet this objection the accused filed an affidavit, to the effect that at the time of his indictment and arraignment, he' did not know and could not have known that the clerk had failed to qualify as jury commissioner. He further states that he was not indicted until the first day of the term.

The accused does not state that the crime with which ho stands charged was committed subsequent to the first day of the term, nor that he rvas placed on trial during the term at which the bill was found. Hence he has not brought himself within the restrictions mentioned in the opinion cited swpra.

On the contrary, the record shows that the indictment was brought into court on the 28th of April, 1888, and that the accused was arraigned thereunder on the 1st of May following. No further proceedings were taken until the 12th of February, 1889, when defendant’s motion to quash was filed.

On the following day his bond was forfeited. Things remained in statu quo until the -6th of May following, when the motion to quash was overruled. The case was called for trial and the defendant convicted, and on the 10th of May he filed a motion in arrest, assigning the same ground as that contained in his motion to quash. No disposition having been made of it, he supplemented the motion with the affidavit above referred to.

Under this state of facts we feel constrained to say that defendant’s objections were not seasonably preferred. Nearly one year had elapsed between the finding of the indictment and the filing of the motion to quash. During this time the accused was out on bond, and had the fullest opportunity to advise with his counsel, and he had ample opportunity to have examined the record of the appointment of the jury commissioners long before his complaint was made.

His motion had been tried and decided against him; the case had been tried and the defendant found guilty; a motion in arrest had been filed, and, not having been disposed of, the affidavit was offered as a supplement 'thereto — more than three months subsequent to the filing of the motion to quash, and more than one year since the finding of the bill.

Tlie accused has not exercised any diligence whatever, nor disclosed any sufficient reason for his long delay in tendering his plea. He may have entertained the idea that, by waiting until twelve months had expired, prescription would terminate the prosecution, or the witnesses against him might disappear.

It was evidently the intention of the Legislature to require such complaints to be seasonably tendered, in order that the remedy might be seasonably applied, and without serious detriment to the interests of the State or of the accused.

Under the circumstances of this case we think the ruling of the trial judge was correct.

There is no merit in the motion in arrest of judgment. There is no error apparent on the face of the record.

Judgment affirmed.


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    No. 1,324.
    The State of Louisiana vs. Joseph McFarlain.
    The accused lias the riglit to show, on cross-examination of a witness for the State, tlie feeling of tlie witness towards liim, and to ask liim as to a particular act of hostile feeling shortly after the commission of tlie offense — such as an attempt on the part of the witness to induce a party to join a crowd to lynch tlie accused.
    If lie refuses to answer, or answers evasively, the accused can prove the fact by any oilier competent witness.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Reed, J.

      'J. G. Gibbs, Dis-trict Attorney, for the State, Appellee.

      A. R. Mitchell and I). B. Gorham, for Defendant and Appellant:
    Defendant lias tlie right on cross-examination of the State’s witnesses to show the state of their feelings towards liim; and said evidence should go before the jury to bo properly weighed and considered by them. 14 Ann. 630; 33 Ann. 537-743 ; 36 A-nr». 153 ; 37 Aim. 78; 3 vol. Russell, Sec. 562; Wharton Grim. Ev., Sees. 376-485.
    If a witness, on cross-examination, denies that he has any bias or ill-feeling against accused, he may be contradicted by evidence of his own statements, or other implicatory acts. Wharton Grim. Ev., Sec. 485.
    Evidence that a proposition to bribe a-witness was made, but not by accused, or by his authority, or in his hearing, is inadmissible. State vs. Hornsby, 32 Ann. 1,268.
    If an impeaching witness states that ho is acquainted with tlio general reputation for truth and veracity of tlie impeached witness among tlie latter’s neighbors, such testimony is admissible, and tlie sufficiency of said testimony to affect tlie credibility of said impeached witness is a matter for the jury to determine. State vs. Thomas, 28 Ann. 828.
    It,is competent to affect the credibility of a witness'l>y showing that ho is subject to insane delusions and not of sound mind. Wharton's Crim. Ev., Sec. 370. 1 Bish. Or. Pra., Sec. 1,141.
   The opinion of the Court was delivered by

McEnery, J.

Tlie defendant was convicted and sentenced to seven years’ imprisonment at hard labor for the crime of shooting with intent to murder, from which he has appealed.

There are several bills of exception reserved to the rulings of the district judge in the course of the trial upon which the accused relies for a reversal of the judgment. It will be necessary to notice only one, as some of the others are without merit, and others based upon a state of facts which do not agree with tlie statement of the judge a quo, annexed to the bills.

The third bill reserved by the defendant is to the ruling of the district judge in not permitting a witness for the defense to testify as to the bias of a witness for the State towards the accused.

Sam Shields, a witness for the State, was asked the question by the defendant’s counsel: “ Did you not, on the day following- the shooting of Parsley, last September, in the town of Jennings, go to T. J. Kellogg-, in said town, and propose to take accused out and lynch him?” To which the witness answered that he did not remember whether he did or not. The defendant offered to prove by the witness, T. G-. Kellogg-, that said witness, Shields, had called upon him, Kellogg, and urged Mm to join him in a crowd to take the accused out and lynch Mm. The State objected to the testimony as irrelevant, and also on the ground that the defendant could not ask the witness, Shields, irrelevant questions for the purpose of impeaching his testimony by that of the witness Kellogg on the matter about which Shields had been interrogated, and to which he had answered he did not remember. The objection was sustained by the court, and the testimony excluded.

In the trial judge’s statement, annexed to the bill, he says: The court did not deny the accused the right to prove that Shields made any proposals to Kellogg at the time and place named by any witnesses whose memory might be considered more reliable, but the right to impeach generally the testimony of a witness who testified that his memory was indistinct as to the particular statement.”

As an abstract legal proposition this statement is undoubtedly correct.

But the testimony was offered not for the purpose of impeaching- the testimony'of the witness as to any particular fact which he did not remember, but to prove hostility on the part of the witness to the accused, and thus affect the credibility of his testimony. He had the undoubted right to show this fact. State vs. Adams, 14 Ann. 620; State vs. Gregory, 33 Ann. 743; State vs. Kane, 36 Ann. 153; State vs. Willingham, 33 Ann. 537; State vs. Melton, 37 Ann. 76.

The witness could have answered affirmatively or negatively. His answer was evasive. If he had refused to answer because he did not wish to criminate himself, or evasively as he has done, for the same purpose, the fact of his hostility was a matter that could have been established by other witnesses. The witness Kellogg, to whom it is alleged the witness Shields made the proposition to lynch the accused, was certainly the proper witness by whom to prove the fact.

There was error in excluding the testimony as to the bias or hostility of the witness Shields to the accused.

It is, therefore, ordered that the verdict of the jury be set aside, the judgment avoided and reversed, and the case remanded, to bo proceeded with according to law.


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    No. 1,332.
    The State of Louisiana vs. William Smith.
    Thai a qionibor of the petit jury which tried the case had hoen a member of the grand jury which liad found the indictment, while good as a ground of challenge to the juror, cannot avail on a motion for new trial.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.

      Waller J. Bullion, District Attorney, tor the State, Appellee.

      Wilson & Sigur for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The sole error assigned is in the refusal of an apx>lication for a new trial, based on the ground that a member of the grand jury which found the indictment against the defendant served as a member of the petit jury which tried the case.

This would have been a good ground of challenge to the juror; but it is settled by repeated decisions that it cannot serve as a basis for a now trial or arrest of judgment. State vs. Thomas, 35 Ann. 24; State vs. Beaseley, 32 Ann. 1162; State vs. Turner, 6 Ann. 310.

It is impossible to distinguish this ease from tiróse cited.

There is no suggestion of fraud or injury. The juror, when examined on ids voir dire, had stated that lie knew nothing of tire ease and had neither formed nor expressed an opinion. There is no contradiction of this statement. For aught that appears, he might not have been present at the finding of the bill. Twelve out of the sixteen composing the grand jury, may validly act in absence of the other members.

At all events, this, like alienage and other grounds of disqualification, was open to discovery by the proper questions to the juror on his voir dire; and ignorance of the existence of such disqualifying cause on the part of the accused and Ms counsel, cannot avail in one case more than in others. The very object of the examination on the voir dire is to elicit information as to such facts as affect the competency of the juror.

The minutes of the court containing the names of the grand jurors, were open to inspection, and they afforded better means of ascertaining the fact of such disqualification than exist in the case of alienage and the like. Yet it is held that alienage of a juror, though only discovered after verdict, cannot serve as a ground for new trial. State vs. Bird, 38 Ann. 497; State vs. Sopher, 35 Ann. 975; State vs. Bron, 26 Ann. 283; State vs. Parks, 21 Ann. 257; 13 Ann. 276; 8 Rob. 590.

Judgment affirmed.


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    No. 1,328.
    The State of Louisiana vs. David Nockum and Wilson Nockum.
    When the jury commission has failed and neglected to take from the venire box for several years the names of jurors disqualified, absent and dead, it is competent for a succeeding jury commission to remedy the evil, to empty the venire box, and place therein three hundred qualified jurors.
    Where the clerk is introduced as a witness and questioned as to the right of the jury commission in taking from the venire box disqualified, absent and dead jurors, tbis is not such parol evidence as to contradict or vary tho venires previously drawn.
    When several members of a jury commission, who are also school directors, have qualified as commissioners since tlieir appointment as school directors, they are competent and legal commissioners.
    When the clerk of court, who is ex officio a jury commissioner, has taken the oath as such, it is not necessary for him to again take the oath when the judge removes the commissioners he is authorized to appoint, and appoints others.
    There is no separation of a jury, when a juror is permitted to go to a water-closet, which has been previously examined by a deputy sheriff to see that no one is there, and goes in there, and the door is kept partially open, and the jury, under the charge of a deputy, is kept in front of same at a convenient distance. Kor is there a separation when the jury is taken to a hotel for dinner, and kept together und^r the charge of two deputy sheriffs, and when no intercourse with them is permitted.
    APPEAL from the Twenty-third District Court, Paris of Iberville. Talbot, J.

      Alex. Hébert and Jno. H. Ogden, District Attorneys, for the State, Appellee.

      Ghas. A. Eoxborough for Defendants and Appellants:
    1. The jury commissioners have neither tlie right or authority to entirely empty the general venire box, after being once constituted, and place therein three hundred new names. Sec. 4. Act 44, 1877. „ ■
    2. If a jury commission, having boon newly appointed, have tlie right to make a new general venire box, and place therein three hundred new names, then they must do so within thirty days aftertlieir appointment. Sec. 4, Act 2so. 44,1877.
    3. Parol evidence cannot be introduced to explain, alter or vary the procos verbal of the venire or any other authentic act, when same has been signed by tlie clerk himself. State vs. Taylor, 27 Ann, 387; State vs. Bevells, 31 Ann. 387; State vs. Brooks, 39 Ann. 817.
    4. “In capital cases it is well settled, that jurors are not permitted to separate, and that upon a separation, misconduct and abuse will always be presumed.” State vs. T/Y/tuk, 23 Ann. 213 i
   Tlie opinion of tlie court was delivered by

McEnery, J.

Tlie defendants were convicted of murder. David Nocknm was found guilty without capital punishment, and William Noctum guilty as charged.

They have appealed from the verdict and judgment.

There are several bills of exception; challenge to the array of jurors, motion to quash and motion for a new trial.

The first objection urged is to the order of tlie judge to the jury commissioners to empty tlie general venire box and the act of the jury commissioners in pursuance of said order in placing in tlie box tliree hundred new names.

The reason assigned for this order by the judge is that at preceding-jury terms of the court there were nevoz- less than five or six, and in several instances, seven or eight persons who were drawn as jurors who wore disqualified, and he was satisfied that the old commissioners had never fully performed their duty in supplementing the names in the box ana the order was rendered to direct a proper performance of this duty.

The clerk of court was sworn and interrogated as to acts of the old. jury commission in the performance of their duty in erasing names from the list .and. taking them from the box, as required by law.

Objection was raised to this testimony that'parol evidence can not bo introduced to vary, or explain the proces verbal of the drawing of the venire, or any other authentical act, when the same has been signed by the clerk. It is plain that this objection is without merit. The object of the testimony of the clerk was to show the fact whether the jury commissioners had taken from the general venire box the names of all' disqualified jurors, and of those absent and dead, and which forms no part of the proces verbal.

The clerk of court, Vinet, states that he was present when the box was emptied, on the 27th of March, 1889, under the order of court.

There wore slips in the venire box with the names of persons written thereon by his predecessor five or six years previous; that he had been jury commissioner for five years, and during this time the venire box was never opened, and the names of those disqualified taken therefrom.

The order of the judge did not impose any duty on the jury commismissioners which they were not authorized to perform. The object of Section 4, Act 44 of 1877, was to keep the names of qualified jurors in the box up to three hundred. When jurors had died, or had become disqualified, their names were supplied by others. If by the neglect of duty of a jury commission at each drawing of a jury,' the names of jurors dead, absent and disqualified should not be taken from the box for a number of years, and should so increase as to'cause confusion in the list of the venire, and reduce the number of the qualified jurors, the easiest way to remedy the defect would be, as was done in the instant case, by emptying the box, and placing therein new names of jurors, to the required number of three hundred.

Conceding that there was irregularity in the drawing of the jury, the accused have not shown that any fraud had been practiced upon them, or some great wrong committed in the drawing of the jury that worked an irreparable injury to them. Section 4, Act 44 of 1877.

In their motion for a new trial the accused alleged that there was a separation of the jury. It is well settled that in caqfital cases jurors are not permitted to separate. Misconduct will be presumed when a separation of the jury is allowed.

The evidence in this case fails to show any separation.

Tlie juror who, it is alleged, separated from the other jurors, wont to a water closet accompanied by the entire jury and deputy sheriff. The entire jury was placed fifteen or twenty feet in front of the door. The deputy sheriff first examined the closet to see that there was no one in there. During its occupancy by the juror the door was partially open. While the juror was in the closet a witness came near it, for similar purposes. He said nothing and addressed no one until the juror came from the closet, when he said something to the juror about the weather. The deputy sheriff immediately warned the juror not to speak, and no conversation was had. There were two deputy sheriffs in charge of the jury.

The deputy sheriff who had charge of the jury says that he was very careful with the jury, and extraordinarily so because he says ho noticed the counsel for defendants at one of the courthouse windows .apparently more interested in the jury than the two deputy sheriffs who had the jury in charge. The jury at the hotel, where they were carried for dinner, were in the immediate charge of these deputies, and did not separate. After dinner they retar nod under the charge of the deputies to the courthouse where they remained together until discharged.

The judge removed and appointed other jury commissioners. The defendants contend that this was a reorganization of the commission, and the clerk of court, who is ex-offieio a member of the commission, must, with the other commissioners, take a new oath. This was unnecessary. The clerk having taken one oath is sufficient. As long as he holds the office of clerk he is jury commissioner ex-offieio.

The appointment of commissioners which the law authorizes the judge to make does .not necessitate the renewal of the oath by the clerk.

In the motion to quash, it is alleged that the grand jury which found the indictment against the accused was not a legally constituted grand jury, because three of the members of the jury commission wore not qualified to act as jury commissioners, as they held commissions as school directors.

The acceptance of an office incompatible with one already held vacates the latter. State vs. Newhouse, 29 Ann. 824; State vs. Anata, 32 Ann. 193.

The record in this case shows that the jury commissioners, whose qualifications are denied, qualified as school directors in 1888, and as jury commissioners in 1889. They were, therefore, qualified and competent commissioners. State vs. Dolwood, 33 Ann., p. 1,229.

We are satisfied tlio accused have had a fair and impartial trial, and an able defense that has presented every fact and circumstance calculated to afford them relief.

We find no errors in the record.

Judgment affirmed.


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    No. 1,329.
    The State of Louisiana vs. James Riley.
    When the .jury commission has failed and neglected to take from the venire box for several years tlio names of jurors disqualified, absent and dead, it is competent for a succeeding jury commission to remedy the evil to empty tlio venire box, and place therein three hundred qualified jurors.
    Whore the clerk is introduced as a witness and questioned as to the right of the jury commission in taking from the venire box disqualified, absent and dead jurors, this is not such parol evidence as to contradict or vary the venires previously drawn.
    When several members of a jury commission, who are also school directors, have qualified as commissioners since tlioir appointment as school directors, they are comi>etont and legal commissioners.
    When the clerk of court, who is ex-officio a jury commissioner, has taken the oath as such, it is not necessary for him to again take the oath when the judge removes the commissioners he is authorized to appoint, and appoints others.
    APPEAL from the Twenty-Third District Court, Parish of Iberbille. Talbot, J.

      Alex. Hébert and Jno. X. Ogden, District Attorney, for the State, Appellee.

      C. O. Zauve for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant was convicted of the crime of murder, without capital punishment. He has appealed.

With the exception of the separation of the jury, the defenses urged are identical with those in the case of the State vs. Dick Nockum and Wilson Nockum, just decided.

Por the reasons assigned in that case, the judgment in this is affirmed.